[Federal Register Volume 75, Number 234 (Tuesday, December 7, 2010)]
[Rules and Regulations]
[Pages 75913-75931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30420]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0079; MO 92210-1117-0000-B4]
RIN 1018-AW52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Vermilion Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the vermilion darter (Etheostoma chermocki) under 
the Endangered Species Act of 1973, as amended (Act). We designate as 
critical habitat approximately 21.0 kilometers (km) (13.0 miles (mi)) 
of stream in 5 units within the Turkey Creek watershed in Jefferson 
County, AL.

DATES: This rule becomes effective on January 6, 2011.

ADDRESSES: This final rule, the final economic analysis, comments and 
materials received, as well as supporting documentation we used in 
preparing this final rule, are available for viewing on the Internet at 
http://regulations.gov at Docket No. FWS-R4-ES-2009-0079 and, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood 
View Parkway, Jackson, MS 39213; telephone 601-321-1122; facsimile 601-
965-4340.

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S. 
Fish and Wildlife Service, Mississippi Fish and Wildlife Office (see 
ADDRESSES above). If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the vermilion darter under the 
Act (16 U.S.C. 1531 et seq.), in this final rule. For more information 
on the biology and ecology of the vermilion darter, refer to the final 
listing rule published in the Federal Register on November 28, 2001 (66 
FR 59367) and the Vermilion Darter Recovery Plan, available on the 
Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf. For 
information on vermilion darter critical habitat, refer to the proposed 
rule to designate critical habitat for the vermilion darter published 
in the Federal Register on December 3, 2009 (74 FR 63366). Information 
on the associated draft economic analysis for the proposed rule to 
designate revised critical habitat was published in the Federal 
Register on June 29, 2010 (75 FR 37350). See also the discussion of 
habitat in the Physical and Biological Features section below.

Description and Taxonomy

    The vermilion darter (Etheostoma chermocki (Teleostei: Percidae)) 
was officially described in 1992 from Turkey Creek, a tributary of the 
Locust Fork, which is within the Black Warrior River drainage of 
Jefferson County, Alabama. The vermilion darter belongs to the subgenus 
Ulocentra (snubnose darters), which includes fish that are slightly 
laterally compressed, have complete lateral lines, broadly connected 
gill membranes, a short head, and a small pronounced mouth. The 
vermilion darter is a medium-sized darter, reaching about 7.1 
centimeters (2.8 inches) total length (length from tip of snout to 
longest portion of tail fin).

Distribution and Habitat

    The vermilion darter is a narrowly endemic fish species, occurring 
in sparse, fragmented, and isolated populations. The species is only 
known in parts of the upper mainstem reach of Turkey Creek and four 
tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 
2004, p. 520). Suitable streams have pools of moderate current 
alternating with riffles of moderately swift current, and low water 
turbidity.
    The vermilion darter was listed as endangered (66 FR 59367, 
November 28, 2001) because of ongoing threats to the species and its 
habitat from urbanization within the Turkey Creek watershed. The 
primary threats to the species and its habitat are degradation of water 
quality and substrate

[[Page 75914]]

components due to sedimentation and other pollutants, and altered flow 
regimes from activities such as construction and maintenance 
activities; impoundments (five within the Turkey Creek and Dry Creek 
system); instream gravel extractions; off-road vehicle usage; road, 
culvert, pipe, bridge, gas, sewer and water easement construction; and 
inadequate stormwater management (Drennen pers. obs. 2007-2009; Blanco 
and Mayden 1999, pp. 18-20). These activities lead to water quality 
degradation; the production of pollutants (sediments, nutrients from 
sewage, pesticides, fertilizers, and industrial and stormwater 
effluents); stream channel instability; fragmentation; reduced 
connectivity of the habitat from alteration of stream banks and 
bottoms; degradation of riffles, runs, and pools; and changes in water 
quantity and flow necessary for spawning, feeding, resting, and other 
life-history processes of the species.

Previous Federal Actions

    The vermilion darter (Etheostoma chermocki) was listed as 
endangered under the Act on November 28, 2001 (66 FR 59367). At the 
time of listing, we found that designation of critical habitat was 
prudent. However, due to budgetary constraints, we did not designate 
critical habitat at that time. We approved a final recovery plan for 
the vermilion darter on June 20, 2007 (Service 2007), and announced its 
availability to the public through a notice published in the Federal 
Register on August 2, 2007 (72 FR 42426).
    On November 27, 2007, the Center for Biological Diversity filed a 
lawsuit against the Secretary of the Interior for our failure to timely 
designate critical habitat for the vermilion darter (Center for 
Biological Diversity v. Kempthorne (07-CV-2928)). In a court-approved 
settlement agreement, the Service agreed to submit to the Federal 
Register a new prudency determination, and if the designation was found 
to be prudent, a proposed designation of critical habitat, by November 
30, 2009, and a final designation by November 30, 2010. We published a 
proposed critical habitat designation for the vermilion darter on 
December 3, 2009 (74 FR 63366), and accepted public comments for 60 
days.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the vermilion darter (74 FR 63366) 
during the December 3, 2009, to February 1, 2010, comment period. We 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties, and invited them to 
comment on the proposed rule. We issued a press release and published a 
legal notice in the Birmingham News. On June 29, 2010, we published a 
notice reopening the comment period until July 29, 2010, as well as 
announcing the availability of a draft economic analysis and amended 
required determinations (75 FR 37350). We directly notified, and 
requested comments from the State of Alabama. During the open comment 
periods we received a total seven comments letters: five from 
organizations and individuals and two from peer reviewers, one of whom 
also represented the State of Alabama. All comments supported 
designation of critical habitat for the vermilion darter. We reviewed 
all comments for substantive issues and new data regarding vermilion 
darter critical habitat and the economic analysis. Written comments are 
addressed in the following summary. For readers' convenience, we have 
combined similar comments into single comments and responses.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we solicited expert opinions from three 
knowledgeable individuals with scientific expertise that included 
familiarity with the species, the geographic region in which the 
species occurs, and conservation biology principles. The purpose of 
such review is to ensure that the designation is based on 
scientifically sound data, assumptions, and analysis, including input 
of appropriate experts and specialists. We received written responses 
from two of the three peer reviewers whom we contacted. The peer 
reviewers generally agreed that the rule incorporated the best 
scientific information available, accurately described the species and 
its habitat requirements (primary constituent elements), accurately 
characterized the reasons for the species' decline and the threats to 
its habitat. Both peer reviewers concurred with our critical habitat 
selection criteria and use of the Vermilion Darter Recovery Plan (USFWS 
2007) as a foundation for the proposed designation. Both peer reviewers 
provided additional information, clarifications, and suggestions to 
improve the final critical habitat rule. These editorial revisions and 
clarifications have been incorporated into the final rule, as 
appropriate. One peer reviewer recommended an additional area for 
critical habitat designation.

Peer Reviewer Comments

    Comment 1: The six-lane Northern Beltline Corridor and the right-
of-way segment for the Northern Beltline Corridor between Alabama 
Highway 79 and Alabama Highway 75 north of Pinson will have direct and 
indirect impacts on the critical habitat of the vermilion darter and 
the general water quality of the Turkey Creek watershed.
    Our Response: The Northern Beltline crosses the northern portions 
of Dry Creek. Only 0.6 km (0.4 mi) of Dry Creek below Innsbrook Lake is 
designated as critical habitat and this is not within the immediate 
area of the Northern Beltline. We reviewed and evaluated the Northern 
Beltline Corridor in accordance with the Fish and Wildlife Coordination 
Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.) and the 
Endangered Species Act. We found that the project would not adversely 
affect the vermilion darter or any federally listed species. We will 
reinitiate consultation if new information indicates that the Northern 
Beltline is a threat to the species or its designated critical habitat, 
or if the project is modified in a manner or extent not previously 
considered.
    Comment 2: Stormwater management is a much larger issue to critical 
habitat than what is presented in the rule. There is no maximum 
instream flow limit in reference to the impacts of stormwater on 
critical habitat.
    Our Response: Stormwater management and its implications to water 
quality are addressed within the threats section of this rule. In 
regard to water quantity and stormwater management, an instream flow 
regime with a minimum average daily discharge over 50 cubic feet per 
second (compiled from U.S. Geological Survey flow data) is critical to 
the vitality of the critical habitat and is discussed in this rule. 
However, at this time, we do not have sufficient scientific information 
to determine a maximum stormwater management flow for the designated 
critical habitat. Average discharges of greater than 100 cubic feet per 
second, inclusive of both surface runoff and groundwater sources 
(springs and seepages), occur sporadically throughout the hydrologic 
cycle of the critical habitat and may be important maximum flow 
benchmarks in the future for determining the maximum flow. However, it 
is not known at this time at what point, or velocity in cubic feet per 
second, a flow within the hydrological year changes from a

[[Page 75915]]

flushing flow to a flow that causes geomorphologic or biological 
damage.
    Comment 3: The commenter states that protection of aquifers and 
groundwater recharge areas is especially important because of the 
impacts of climate change on the habitat of the vermilion darter; 
specifically those impacts ``resulting in higher stream water 
temperatures and lower flows, and stormwater management needs and 
higher flows.'' The Service should be consulted for disturbances within 
the critical habitat area as well as beyond the immediate critical 
habitat area within the recharge areas particularly in regard to 
springs and seeps.
    Our Response: Critical habitat only affects Federal agencies and 
those projects which have a Federal nexus. All Federal agencies must 
comply with section 7 of the Act. Section 7 requires consultation on 
Federal actions that may adversely affect critical habitat. Under 
section 7 of the Act, the Federal action agency must provide an 
analysis of cumulative effects along with other information, when 
requesting formal consultation. The Service will be consulted for 
disturbances to areas both within the critical habitat units as well as 
those within the recharge area, including springs and seeps that 
contribute to the instream flow in the tributaries, especially during 
times when stream flows are abnormally low. See the Effects of Critical 
Habitat Designation section of this rule for additional information on 
section 7 consultation.
    Comment 4: The Service should include the spring run on the east 
side of north bound Alabama Highway 79 as part of the critical habitat 
designation. Vermilion darters have been collected there during the 
spawning season.
    Our Response: We acknowledge that there have been some sporadic 
collections of the vermilion darter at this spring run. We did not 
designate this site as critical habitat because the available 
information demonstrated that it did not contain the physical and 
biological features essential to the conservation of the species. See 
the Primary Constituent Elements section of this rule for areas 
essential to the conservation of the species. The spring run is located 
in a road-side ditch about 30 feet long. The run is bordered on all 
sides by pipes, roads, and a parking lot. It is disjunct and drains 
into Unit 5 but first must traverse about 100 feet within a pipe under 
Highway 79. However, although the spring run is not designated as 
critical habitat, the site will continue to be subject to conservation 
actions we implement under section 7 of the Act. See the Effects of 
Critical Habitat Designation section of this rule for additional 
information on section 7 consultation.

Public Comments

    Comment 5: The size of the critical habitat for the vermilion 
darter is inadequate. The entire watersheds of the proposed stream 
units should be designated as critical habitat. At a minimum, the 
Service should designate a 300- to 500-foot buffer zone along each bank 
of all 5 stream units as critical habitat.
    Our Response: The Act requires us to designate specific areas 
within the geographical area occupied by a species at the time it is 
listed which contain physical or biological features that are essential 
to the conservation of the species, and that may require special 
management considerations or protection. Specific areas outside the 
geographical area occupied by a species at the time of listing may also 
be designated critical habitat if it is determined that such areas are 
essential for the conservation of the species. We believe the five 
stream units that were proposed as critical habitat are occupied by the 
vermilion darter, are essential to its conservation, and require 
special management considerations or protection. As described in the 
proposed rule (74 FR 63366), we considered additional areas; however, 
they did not meet the criteria for designation as critical habitat.
    When evaluating the effects of any Federal action subject to 
section 7 consultation, all activities which have the potential to 
destroy or adversely modify designated critical habitat must be 
considered. Adverse impacts to vermilion darter critical habitat might 
result from stormwater runoff, eutrophication, or potential changes in 
hydrology, geomorphology, etc. (see Effects of Critical Habitat 
Designation section below), that would include areas upstream of or 
adjacent to areas of stream channels that were designated critical 
habitat. Therefore, specific designation of these areas is unnecessary. 
Identification of the stream channel as critical habitat provides 
notice to Federal agencies to review activities conducted anywhere 
within the drainage for their potential effects to the designated 
portion of the channel. Critical habitat designation will alert third 
parties of the importance of the area to the survival of the vermilion 
darter.
    Comment 6: The six-lane Northern Beltline Corridor will cross Dry 
Creek and follow the hilly terrain within the Turkey Creek watershed. 
Dry Creek will be placed in culverts at two locations and the general 
water quality of the Turkey Creek watershed, along with the habitat of 
the vermilion darter, will be impacted negatively.
    Our Response: We evaluated the potential effects of the Northern 
Beltline on the vermilion darter and other trust resources in 
accordance with the Fish and Wildlife Coordination Act (48 Stat. 401, 
as amended; 16 U.S.C. et seq.) and the Endangered Species Act and found 
that the project would not adversely affect any federally listed 
species. We will reinitiate consultation if new information indicates 
that the Northern Beltline is a threat to the species or its designated 
critical habitat, or if the project is modified in a manner or extent 
not previously considered (See Comment 1 in the Peer Reviewer Comments 
section).
    Comment 7: Strip mines are occurring along the Locust Fork of the 
Black Warrior River near Turkey Creek, outside of the vermilion 
darter's range and the critical habitat, but within the lower portion 
of the Turkey Creek watershed. The Majestic Mine is permitted to 
discharge within Turkey Creek via the creek's tributaries. The Service 
may want to consider extending the critical habitat of Turkey Creek 
downstream (from the lower section) to the confluence with the Locust 
Fork of the Black Warrior River, thus allowing the future downstream 
migration or reintroduction of the species.
    Our Response: The areas below the most downstream point of Turkey 
Creek do not contain, at this time, the physical and biological 
features essential to the conservation of the vermilion darter. Current 
and proposed coal mining activities, along with current geomorphic 
conditions, limit the expansion of the vermilion darter beyond this 
point within Turkey Creek.
    Comment 8: We are skeptical that the rule provides conservation 
standards adequate for the vermilion darter because critical habitat 
designation is based on data collected over a decade ago when the 
species was listed. An updated assessment may have expanded critical 
habitat to other areas.
    Our Response: We utilized the most current information available 
when preparing this designation, including information from studies 
conducted since the vermilion darter listing in 2001 (i.e., 
Khudamrongsawat 2007, Khudamrongsawat et al. 2005, Rakes and Shute 
2005, USFWS 2007). We have determined that sufficient information is 
available to identify basic features essential to the conservation of 
the species as well as specific areas that meet the definition of 
critical habitat (see Critical Habitat section below).

[[Page 75916]]

    Comment 9: Ensure the continuity in water flow in the Units to 
promote genetic flow within Turkey Creek, to prevent the extinction of 
the vermilion darter.
    Our Response: We will implement the requirements of the Act and 
continue to monitor all activities that might affect stream flow and 
continuity within the designated area in light of their effects on 
water quality or quantity (see Physical and Biological Features and 
Effects of Critical Habitat Designation sections below).

Comments From States

    We received two editorial comments to the critical habitat rule 
from the Alabama Department of Conservation and Natural Resources, 
which have been incorporated into this final rule. No official position 
was expressed by the State on the critical habitat designation.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
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 under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
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) would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain the physical or biological features which are essential to 
the conservation of the species, and which may require special 
management considerations or protection. Critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, those physical and biological features that are 
essential to the conservation of the species (such as space, food, 
cover, and protected habitat), focusing on the principal biological or 
physical constituent elements (primary constituent elements) within an 
area that are essential to the conservation of the species (such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type). Primary constituent elements are the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life-history 
processes, are essential to the conservation of the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas we should designate as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. In particular, we recognize that climate change may cause 
changes in the arrangement of occupied habitat stream reaches. Climate 
change may lead to increased frequency and duration of severe storms 
and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 
6074; Cook et al. 2004, p. 1015). From 2006 to 2007, drought conditions 
greatly reduced the habitat of the vermilion darter in Jefferson County 
(Drennen, pers. obs. 2007). Fluker et al. (2007, p. 10) and Drennen 
(pers. obs. 2007) reported that ongoing drought conditions, coupled 
with rapid urbanization within watersheds containing imperiled darters, 
render the populations vulnerable to anthropomorphic

[[Page 75917]]

disturbances such as water extraction, vehicles within Turkey Creek and 
its tributaries, and increased clearing or draining of vulnerable 
wetlands and spring seeps; especially during the breeding season when 
the darters concentrate in specific habitat areas of Turkey Creek and 
its tributaries.
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of the location and magnitude of the effects. Nor are 
we currently aware of any climate change information specific to the 
habitat of the vermilion darter that would indicate what areas may 
become important to the species in the future. Therefore, as explained 
in the proposed rule (74 FR 63366), we are unable to determine what 
additional areas, if any, may be appropriate to include in the final 
critical habitat for this species to address the effects of climate 
change.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12(b), in determining which areas within 
the geographical area occupied at the time of listing to designate as 
critical habitat, we considered the physical and biological features 
that are essential to the conservation of the species and 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, or 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 derive the specific physical and biological features required 
for the vermilion darter from the biological needs of the species as 
described in the Critical Habitat section of the proposed rule to 
designate critical habitat for the vermilion darter published in the 
Federal Register on December 3, 2009 (74 FR 63366), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on November 28, 
2001 (66 FR 59367), and the Vermilion Darter Recovery Plan, available 
on the Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf. 
We have determined that the vermilion darter requires the following 
physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
    While little is known about the specific space requirements of the 
vermilion darter within the Turkey Creek system, darters, in general, 
depend on space from geomorphically stable streams with varying water 
quantities and flow. Studies show that vermilion darters are found in 
the transition zone between a riffle (shallow, fast water) or run 
(deeper, fast water) and a pool (deep, slow water) (Blanco and Mayden 
1999, pp. 18-20), usually at the head and foot of the riffles and 
downstream of the run habitat. Construction of impoundments and 
inadequate storm water management in the Turkey Creek watershed have 
altered stream banks and bottoms; degraded the riffles, runs, and 
pools; and altered the natural water quantity and flow of the stream. A 
stable stream maintains its horizontal dimension and vertical profile 
(stream banks and bottoms), thereby conserving the physical 
characteristics, including bottom features such as riffles, runs, and 
pools and the transition zones between these features. The riffles, 
runs, and pools not only provide space for the vermilion darter, but 
also provide cover and shelter for breeding, reproduction, and growth 
of offspring.
    In addition, the current range of the vermilion darter is reduced 
to localized sites due to fragmentation, separation, and destruction of 
vermilion darter populations. There are both natural (waterfall) and 
manmade (impoundments) dispersal barriers that not only contribute to 
the separation and isolation of vermilion darter populations, but also 
affect water quality. Fragmentation of the species' habitat has 
isolated the populations within the Turkey Creek system, reduced space 
for rearing and reproduction and population maintenance, reduced 
adaptive capabilities, and increased likelihood of local extinctions 
(Hallerman 2003, pp. 363-364; Burkhead et al. 1997, pp. 397-399). 
Genetic variation and diversity within a species are essential for 
recovery, adaptation to environmental changes, and long-term viability 
(capability to live, reproduce, and develop) (Noss and Cooperrider 
1994, pp. 282-297; Harris 1984, pp. 93-107). Long-term viability is 
founded on numerous interbreeding, local populations throughout the 
range (Harris 1984, pp. 93-107). Continuity of water flow between 
suitable habitats is essential in preventing further fragmentation of 
the species' habitat and populations; conserving the essential riffles, 
runs, and pools needed by vermilion darters; and promoting genetic flow 
throughout the populations. Continuity of habitat will maintain 
spawning, foraging, and resting sites, as well as provide gene flow 
throughout the population. Connectivity of habitats, as a whole, also 
permits improvement in water quality and water quantity by allowing an 
unobstructed water flow throughout the connected habitats.
    Based on the biological information and needs discussed above, it 
is essential to protect riffles, runs, and pools, and the continuity of 
these structures, to accommodate feeding, spawning, growth, and other 
normal behaviors of the vermilion darter and to promote genetic flow 
within the species.

[[Page 75918]]

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
Water Quantity and Flow
    Much of the cool, clean water provided to the Turkey Creek main 
stem comes from consistent and steady groundwater sources (springs) 
that contribute to the flow and water quantity in the tributaries 
(Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to 
Beaver Creek). Flowing water provides a means for transporting 
nutrients and food items, moderating water temperatures and dissolved 
oxygen levels, and diluting nonpoint- and point-source pollution. 
Impoundments within Turkey and Dry Creeks not only serve as dispersal 
barriers but also have altered stream flows from natural conditions. 
Without clean water sources, water quality and water quantity would be 
considerably lower and would significantly impair the normal life 
stages and behavior of the vermilion darter.
    Favorable water quantity is an average daily discharge of over 50 
cubic feet per second within the Turkey Creek main stem (U.S. 
Geological Survey 2009, compiled from average annual statistics), 
inclusive of both surface runoff and groundwater sources (springs and 
seepages) and exclusive of flushing flows. However, the favorable upper 
limit for the average daily discharge is not known. Along with this 
average daily discharge, both minimum and flushing flows are necessary 
within the tributaries to maintain all life stages and to remove fine 
sediments and dilute other pollutants (Drennen pers. obs., February 
2009a; Instream Flow Council 2004, pp. 103-104, 375; Gilbert et al. 
eds. 1994, pp. 505-522; Moffett and Moser 1978, pp. 20-21). These flows 
are supplemented by groundwater and contribute to the overall stream-
cleansing effect by adding to the total flow of high-quality water. 
This, in turn, helps in maintenance of stream banks and bottoms, 
essential for normal life stages and behavior of the vermilion darter. 
However, excessive stormwater flow can alter the geomorphology of the 
existing stream by disturbing bottom substrate and banksides along with 
dislodging vegetation.
Water Quality
    Factors that can potentially alter water quality are decreases in 
water quantity through droughts and periods of low seasonal flow, 
precipitation events, nonpoint-source runoff, human activities within 
the watershed, random spills, and unregulated stormwater discharge 
events (Instream Flow Council 2004, pp. 29-50). These factors are 
particularly harmful during drought conditions when flows are depressed 
and pollutants are concentrated. Impoundments also affect water quality 
by reducing water flow, altering temperatures, and concentrating 
pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source 
pollution and alteration of flow regimes are primary threats to the 
vermilion darter in the Turkey Creek watershed.
    Aquatic life, including fish, requires acceptable levels of 
dissolved oxygen. The type of organism and its life stage determine the 
level of oxygen required. Generally, among fish, the young life forms 
are the most sensitive. The amount of dissolved oxygen that is present 
in the water (the saturation level) depends upon water temperature. As 
the water temperature increases, the saturated dissolved oxygen level 
decreases. The more oxygen there is in the water, the greater the 
assimilative capacity (ability to consume organic wastes with minimal 
impact) of that water; lower water flows have a reduced assimilative 
capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical 
environment occupied by the fish, and extended low-flow conditions 
coupled with higher pollutant levels would likely result in behavior 
changes within all life stages, but could be particularly detrimental 
to early life stages (e.g., embryo, larvae, and juvenile).
    Optimal water quality lacks harmful levels of pollutants such as 
inorganic contaminants like copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorous fertilizers; and petroleum distillates. Sediment is the 
most abundant pollutant produced in the Mobile River Basin (Alabama 
Department of Environmental Management 1996, pp.13-15). Siltation 
(excess sediments suspended or deposited in a stream) contributes to 
turbidity of the water and has been shown to reduce photosynthesis in 
aquatic plants, suffocate aquatic insects, smother fish eggs, clog fish 
gills, and fill in essential interstitial spaces (spaces between stream 
substrates) used by aquatic organisms for spawning and foraging; 
therefore, siltation negatively impacts fish growth, physiology, 
behavior, reproduction, and survival. Eutrophication (excessive 
nutrients present, such as nitrogen and phosphorous) promotes heavy 
algal growth that covers and eliminates clean rock or gravel habitats 
necessary for vermilion darter feeding and spawning. High conductivity 
values are an indicator of hardness and alkalinity and may denote water 
nitrification (Hackney et al. 1992, pp.199-203). Generally, early life 
stages of fishes are less tolerant of environmental contamination than 
adults or juveniles (Little et al. 1993, p. 67).
    Adequate water quality and good to optimal water quantity are 
necessary to dilute impacts from storm water and other non-natural 
effluents. Harmful levels of pollutants impair critical behavior 
functions in fish and are reflected in population-level responses 
(reduced population size, biomass, year class success, etc.). Adequate 
water quantity and flow and good to optimal water quality are also 
essential for normal behavior, growth, and viability during all life 
stages. However, excessive water quantity as stormwater runoff may 
destabilize and move bottom and bankside substrates as well as increase 
instream sedimentation and decrease water quantity in general.
    The vermilion darter requires relatively clean, cool, flowing water 
within the Turkey Creek main stem and tributaries. The Clean Water Act 
(33 U.S.C. 1251 et seq.), Water Quality Act (Pub. L. 100-4), and 
Alabama Water Pollution Control Act (Ala. Code Sec.  22-22-1) establish 
guidelines for water usage and standards of quality for the State's 
waters necessary to preserve and protect aquatic life. Essential water 
quality attributes for darters and other fish species in fast to middle 
water flow streams include: dissolved oxygen levels greater than 6 
parts per million (ppm), temperatures between 7 and 26.7 [deg]Celsius 
(C) (45 and 80 [deg]Fahrenheit (F)) with spring egg incubation 
temperatures from 12.2 to 18.3 [deg]C (54 to 65 [deg]F), a specific 
conductance (ability of water to conduct an electric current, based on 
dissolved solids in the water) of less than approximately 225 micro 
Siemens per centimeter at 26.7 [deg]C (80 [deg]F), and low 
concentrations of free or suspended solids (organic and inorganic 
sediments) less than 10 Nephelometric Turbidity Units (NTU; units used 
to measure sediment discharge) and 15 mg/L Total Suspended Solids (TSS; 
measured as mg/L of sediment in water) (Teels et al. 1975, pp. 8-9; 
Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp. 131-138; 
Kundell and Rasmussen 1995, pp. 211-212; Henley et al. 2000, pp. 125-
139; Meyer and Sutherland 2005, pp. 43-64).
Food
    The vermilion darter is a benthic (bottom) insectivore consuming 
larval chironomids (midges), tipulids (crane

[[Page 75919]]

flies), and hydropsychids (caddisflies), along with occasional 
microcrustaceans (Boschung and Mayden 2004, p. 520; Khudamrongsawat et 
al. 2005, p. 472). Caddisflies and crane flies are pollution-sensitive 
organisms found in good to fair water quality (Auburn University 1993, 
p. 53). Variation in instream flow maintains the stream bottom where 
food for the vermilion darter is found, transports these organisms, and 
provides oxygen and other attributes to various invertebrate life 
stages. Sedimentation has been shown to wear away and suffocate 
periphyton (organisms that live attached to objects underwater) and 
disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and 
Welch 2001, pp. 132-135). In addition, eutrophication promotes heavy 
algal growth that covers and eliminates the clean rock or gravel 
habitats necessary for vermilion darter feeding and spawning. A 
decrease in water quality and instream flow will correspondingly 
decrease the major food species for the vermilion darter. Excessive 
water quantity as stormwater runoff may destabilize and move bottom and 
bankside substrates as well as increase instream sedimentation and 
decrease water quantity in general. Thus, food availability for the 
vermilion darter is affected by instream flow and water quality.
    Based on the biological information and needs discussed above, we 
believe it is essential that vermilion darter habitat consist of 
unaltered, connected, stable streams to maintain flow, prevent 
sedimentation, and promote good water quality absent harmful 
pollutants.
Cover or Shelter (Sites for Breeding, Reproduction or Rearing)
    Vermilion darters depend on specific bottom substrates for normal 
and robust life processes such as spawning, rearing, protection of 
young during life stages, protection of adults when threatened, 
foraging, and feeding. These bottom substrates are dominated by fine 
gravel, along with some sand, coarse gravel, cobble, and bedrock 
(Blanco and Mayden 1999, pp. 24-26; Drennen pers. obs., February 
2009b). The vermilion darter prefers small-sized gravel for spawning 
substrates (Blanchard and Stiles 2005, pp. 1-12). Occasionally, there 
are also small sticks and limbs on the bottom substrate and within the 
water column (Stiles pers. comm., September 1999; Drennen pers. obs., 
May 2007).
    Excessive fine sediments of small sands, silt, and clay may embed 
in the larger substrates, filling in interstitial spaces between these 
structures. Loss of these interstitial areas removes spawning and 
rearing areas, foraging and feeding sites, and escape and protection 
localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense, 
filamentous algae growth on the substrates may restrict or eliminate 
the usefulness of the interstitial spaces by the vermilion darter. 
Excessive fine sediment can also impact aquatic vegetation by reducing 
sunlight due to turbid water or by covering the vegetation with fine 
silt. Aquatic vegetation is likely also used by vermilion darters as a 
spawning substrate (Kuhajda pers. comm., May 2007).
    Geomorphic instability within the streambed and along the banks 
from high stormwater flow results in scouring and erosion of these 
areas, leading to sedimentation and loss of vegetation and substrate 
for shelter and cover for vermilion darters, their eggs, and their 
young. This fine sediment deposition also reduces the area available 
for food sources, such as macroinvertebrates and periphyton (Tullos 
2005, pp. 80-81).
    Thus, based on the biological information and needs above, 
essential vermilion darter habitat consists of stable streams with a 
stream flow sufficient to remove sediment and eliminate the filling in 
of interstitial spaces and substrate to accommodate spawning, rearing, 
protection of young, protection of adults when threatened, foraging, 
and feeding.
Primary Constituent Elements for Vermilion Darter
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of the vermilion darter in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life-history 
processes, are essential to the conservation of the species. Areas 
designated as critical habitat for vermilion darter contain only 
occupied areas within the species' historical geographic range, and 
contain sufficient primary constituent elements to support at least one 
life-history process.
    Based on our current knowledge of the life history, biology, and 
ecology of vermilion darter and the requirements of the habitat to 
sustain the life-history processes of the species, we determined that 
the primary constituent elements specific to vermilion darter are:
    Primary Constituent Element 1. Geomorphically stable stream bottoms 
and banks (stable horizontal dimension and vertical profile) in order 
to maintain the bottom features (riffles, runs, and pools) and 
transition zones between bottom features, to promote connectivity 
between spawning, foraging, and resting sites, and to maintain gene 
flow throughout the species' range.
    Primary Constituent Element 2. Instream flow regime with an average 
daily discharge over 50 cubic feet per second, inclusive of both 
surface runoff and groundwater sources (springs and seepages) and 
exclusive of flushing flows.
    Primary Constituent Element 3. Water quality with temperature not 
exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams or 
greater per liter, turbidity of an average monthly reading of 10 NTUs 
and 15mg/l TSS or less; and a specific conductance of no greater than 
225 micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
    Primary Constituent Element 4. Stable bottom substrates consisting 
of fine gravel with coarse gravel or cobble, or bedrock with sand and 
gravel, with low amounts of fine sand and sediments within the 
interstitial spaces of the substrates along with adequate aquatic 
vegetation.
    With this designation of critical habitat, we intend to identify 
the physical and biological features essential to the conservation of 
the species, through the identification of the appropriate quantity and 
spatial arrangement of the primary constituent elements sufficient to 
support the life-history processes of the species. Each of the areas 
identified as critical habitat in this rule contains sufficient primary 
constituent elements to provide for one or more of the life-history 
processes of the vermilion darter.

Criteria Used To Identify Final Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species. We are designating all stream reaches in 
occupied habitat as critical habitat. We have defined ``occupied 
habitat'' as those stream reaches occupied at the time of listing, all 
of which are still known as of the publication date of this rulemaking 
to be

[[Page 75920]]

occupied by the vermilion darter; these stream reaches comprise the 
entire known range of the vermilion darter. We are not designating any 
areas outside the known range of the species because the historical 
range of the vermilion darter, beyond currently occupied areas, is 
unknown, and dispersal beyond the current range is not likely due to 
dispersal barriers.
    We used information from surveys and reports prepared by the 
Alabama Department of Conservation and Natural Resources, Alabama 
Geological Survey, Samford University, University of Alabama, and the 
Service to identify the specific locations occupied by the vermilion 
darter. Currently, occupied habitat for the species is limited and 
isolated. The species is currently located within the upper mainstem 
reaches of Turkey Creek and four tributaries: unnamed tributary to 
Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson, 
Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen 
pers. obs. March 2008).
    Following the identification of the specific locations occupied by 
the vermilion darter, we determined the appropriate length of stream 
segments to designate by identifying the upstream and downstream limits 
of these occupied sections necessary for the conservation of the 
vermilion darter. Populations of vermilion darters are isolated due to 
dispersal barriers. Accordingly, we set the upstream and downstream 
limits of each critical habitat unit by identifying landmarks (bridges, 
confluences, road crossings, and dams) above and below the upper- and 
lower-most reported locations of the vermilion darter in each stream 
reach to ensure incorporation of all potential sites of occurrence. 
These stream reaches were then digitized using 7.5-minute topographic 
maps and ARCGIS to produce the critical habitat map.
    The five final critical habitat units contain physical and 
biological features with one or more of the primary constituent 
elements in the appropriate quantity and spatial arrangement for the 
features to support multiple life processes for the vermilion darter 
and to be essential to the conservation of this species.
    When identifying final critical habitat boundaries, we make every 
effort to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands usually 
lack primary constituent elements for endangered or threatened species. 
Areas identified as critical habitat for the vermilion darter below 
include only stream channels within the ordinary high-water line and do 
not contain any developed areas or structures.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain the features that are essential to the conservation 
of the species and which may require special management considerations 
or protection.
    The five units we are designating as critical habitat will require 
some level of management to address the current and future threats to 
the physical and biological features essential to the conservation of 
the species. None of the final critical habitat units are presently 
under special management or protection provided by a legally operative 
plan or agreement for the conservation of the vermilion darter. Various 
activities in or adjacent to the critical habitat units described in 
this final rule may affect one or more of the physical and biological 
features. For example, features in the final critical habitat 
designation may require special management due to threats posed by the 
following activities or disturbances: urbanization activities and 
inadequate stormwater management (such as stream channel modification 
for flood control or gravel extraction) that could cause an increase in 
bank erosion; significant changes in the existing flow regime within 
the streams due to water diversion or withdrawal; significant 
alteration of water quality; significant alteration in the quantity of 
groundwater and alteration of spring discharge sites; significant 
changes in stream bed material composition and quality due to 
construction projects and maintenance activities; off-road vehicle use; 
sewer, gas, and water easements; bridge construction; culvert and pipe 
installation; stormwater management; and other watershed and floodplain 
disturbances that release sediments or nutrients into the water. Other 
activities that may affect physical and biological features in the 
final critical habitat units include those listed in the Effects of 
Critical Habitat Designation section below.

Final Critical Habitat Designation

    We are designating 5 units, totaling approximately 21.2 stream km 
(13.1 stream mi), as critical habitat for the vermilion darter. The 
critical habitat units described below constitute our best assessment 
of areas that currently meet the definition of critical habitat for the 
vermilion darter. Table 1 identifies the final units for the species, 
the occupancy of the units, the final extent of critical habitat for 
the vermilion darter, and ownership of the final designated areas.

          Table 1--Occupancy and Ownership of the Final Critical Habitat Units for the Vermilion Darter
----------------------------------------------------------------------------------------------------------------
                                                                      Private     State, county,
                                                                     ownership    city ownership
             Unit                  Location          Occupied         stream          stream           Total
                                                                    kilometers      kilometers
                                                                      (miles)         (miles)
----------------------------------------------------------------------------------------------------------------
1............................  Turkey Creek....  Yes............            14.9             0.3            15.2
                                                                           (9.2)           (0.2)           (9.4)
2............................  Dry Branch......  Yes............             0.7  ..............             0.7
                                                                           (0.4)                           (0.4)
3............................  Beaver Creek....  Yes............             0.9             0.1             1.0
                                                                           (0.6)         (< 0.1)           (0.6)
4............................  Dry Creek.......  Yes............             0.6  ..............             0.6
                                                                           (0.4)                           (0.4)
5............................  Unnamed           Yes............             3.3             0.4             3.7
                                Tributary to                               (2.0)           (0.2)           (2.2)
                                Beaver Creek.
                              ----------------------------------------------------------------------------------
    Total....................  ................  ...............            20.4             0.8            21.2
                                                                          (12.6)           (0.5)          (13.1)
----------------------------------------------------------------------------------------------------------------


[[Page 75921]]

    We present brief descriptions of each unit and reasons why they 
meet the definition of critical habitat below. The final critical 
habitat units include the stream channels of the creek and tributaries 
within the ordinary high-water line. As defined in 33 CFR 329.11, the 
ordinary high-water line on nontidal rivers is the line on the shore 
established by the fluctuations of water and indicated by physical 
characteristics such as a clear, natural water line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas. In Alabama, for nonnavigable waterways, the riparian landowner 
owns the stream to the middle of the channel.
    For each stream reach of final critical habitat, the upstream and 
downstream boundaries are described generally below; more precise 
descriptions are provided in the Regulation Promulgation section at the 
end of this final rule.
    Unit 1: Turkey Creek, Jefferson County, Alabama:
    Unit 1 includes 15.2 km (9.4 mi) in Turkey Creek from Shadow Lake 
Dam downstream to the Section 13/14 (T15S, R2W) line, as taken from the 
U.S. Geological Survey 7.5-minute topographical map (Pinson 
quadrangle).
    Approximately 14.9 km (9.2 mi), or 98 percent of this area is 
privately owned. The remaining 0.3 km (0.2 mi), or 2 percent is 
publicly owned by the City of Pinson or Jefferson County in the form of 
bridge crossings and road easements.
    Turkey Creek supports the most abundant and robust populations of 
the vermilion darter in the watershed. Populations of vermilion darters 
are small and isolated within specific habitat sites of Turkey Creek 
from Shadow Lake dam downstream to the old strip mine pools (13/14 S 
T15S R2W section line, as taken from the U.S. Geological Survey 7.5-
minute topographical map (Pinson quadrangle)). We consider the entire 
reach of Turkey Creek that composes Unit 1 to be occupied.
    One of the three known spawning sites for the species (Stiles, 
pers. comm. 1999) is located within the confluence of Turkey Creek and 
Tapawingo Spring run (Primary Constituent Element 4). In addition, 
Turkey Creek provides the most darter habitat for the vermilion darters 
with an abundance of pools, riffles, and runs (Primary Constituent 
Element 1). These geomorphic structures provide the species with 
spawning, foraging, and resting areas (Primary Constituent Elements 1 
and 4), along with good water quality, quantity, and flow, which 
support the normal life stages and behavior of the vermilion darter and 
the species' prey sources (Primary Constituent Elements 2 and 3).
    There are five impoundments in Turkey Creek (Blanco and Mayden 
1999, pp. 5-6, 36, 63) limiting the connectivity of the range and 
expansion of the species into other units and posing a risk of 
extinction to the species due to changes in flow regime, habitat, water 
quality, water quantity, and stochastic events such as drought. These 
impoundments accumulate nutrients and undesirable fish species that 
could propose threats to vermilion darters and the species' habitat. 
Other threats to the vermilion darter and its habitat in Turkey Creek 
which may require special management and protection of primary 
constituent elements include the potential of: urbanization activities 
(such as channel modification for flood control, inadequate stormwater 
management, or gravel extraction) that could result in increased bank 
erosion; significant changes in the existing flow regime due to water 
diversion or water withdrawal; significant alteration of water quality; 
and significant changes in stream bed material composition and quality 
as a result of construction projects and maintenance activities; off-
road vehicle use; sewer, gas, and water easements; bridge construction; 
culvert and pipe installation; and other watershed and floodplain 
disturbances that release sediments or nutrients into the water.
    Unit 2: Dry Branch, Jefferson County, Alabama:
    Unit 2 includes 0.7 km (0.4 mi) of Dry Branch from the bridge at 
Glenbrook Road downstream to the confluence with Beaver Creek.
    Most of the 0.7 km (0.4 mi) or close to 100 percent of this area is 
privately owned. Less than 1 percent of the area is publicly owned by 
the City of Pinson or Jefferson County in the form of bridge crossings 
and road easements.
    Dry Branch provides supplemental water quantity to Turkey Creek 
proper (Unit 1) and provides connectivity to additional bottom 
substrate habitat and possible spawning sites (Primary Constituent 
Elements 1, 3, and 4). One of the three known spawning sites for the 
species is located within the confluence of this reach (Primary 
Constituent Element 1 and 4) and Beaver Creek (Stiles, pers. comm. 
2009).
    Threats to the vermilion darter and its habitat at Dry Branch which 
may require special management and protection of Primary Constituent 
Elements 1, 3, and 4 include the potential of: urbanization activities 
(such as channel modification for flood control, inadequate stormwater 
management, construction of impoundments, and gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to construction of impoundments, water 
diversion, or water withdrawal; significant alteration of water 
quality; and significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge construction; culvert and pipe installation; and other watershed 
and floodplain disturbances that release sediments or nutrients into 
the water.
    Unit 3: Beaver Creek, Jefferson County, Alabama:
    Unit 3 includes 1.0 km (0.6 mi) of Beaver Creek from the confluence 
with the unnamed tributary to Beaver Creek and Dry Branch downstream to 
the confluence with Turkey Creek.
    Almost 0.9 km (0.6 mi), or 94 percent of this area, is privately 
owned. The remaining 0.1 km (under 0.1 mi), or 6 percent is publicly 
owned by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    Beaver Creek supports populations of vermilion darters, and 
provides supplemental water quantity to Turkey Creek proper (Primary 
Constituent Elements 1 and 2). The reach also contains adequate bottom 
substrate for vermilion darters to use in spawning, foraging, and other 
life processes (Primary Constituent Element 4). Beaver Creek makes 
available additional habitat and spawning sites, and offers 
connectivity with other vermilion darter populations within Turkey 
Creek, Dry Branch, and the unnamed tributary to Beaver Creek (Primary 
Constituent Elements 1 and 4).
    Threats to the vermilion darter and its habitat at Beaver Creek 
which may require special management of Primary Constituent Elements 1, 
2, and 4 include the potential of: urbanization activities (such as 
channel modification for flood control, construction of impoundments, 
gravel extraction) that could result in increased bank erosion; 
significant changes in the existing flow regime due to inadequate 
stormwater management, water diversion, or water withdrawal; 
significant alteration of water quality; and significant changes in 
stream bed material composition and quality as a result of construction 
projects and maintenance activities; off-road vehicle use; sewer, gas, 
and water easements; bridge construction; culvert and pipe 
installation; and other watershed and

[[Page 75922]]

floodplain disturbances that release sediments or nutrients into the 
water.
    Unit 4: Dry Creek, Jefferson County, Alabama:
    Unit 4 includes 0.6 km (0.4 mi) of Dry Creek from Innsbrook Road 
downstream to the confluence with Turkey Creek.
    One hundred percent of this area, is privately owned.
    Dry Creek supports populations of vermilion darters and provides 
supplemental water quantity to Turkey Creek proper (Primary Constituent 
Elements 1 and 2). The reach also contains adequate bottom substrate 
for vermilion darters to use in spawning, foraging, and other life 
processes (Primary Constituent Element 4). Dry Creek makes available 
additional habitat and spawning sites, and offers connectivity with 
vermilion darter populations in Turkey Creek (Primary Constituent 
Element 1).
    There are two impoundments in Dry Creek (Blanco and Mayden 1999, 
pp. 56, 62) which limit the range and expansion of the species within 
the unit and increases the risk of extinction due to changes in flow 
regime, habitat or water quality, water quantity, and stochastic events 
such as drought. These impoundments amass nutrients and undesirable 
fish species that could propose threats to vermilion darters and to its 
habitat. Threats that may require special management and protection of 
primary constituent elements include: urbanization activities (such as 
channel modification for flood control and gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to inadequate stormwater management and 
impoundment construction, water diversion, or water withdrawal; 
significant alteration of water quality; and significant changes in 
stream bed material composition and quality as a result of construction 
projects and maintenance activities, off-road vehicle use, sewer, gas 
and water easements, bridge construction, culvert and pipe 
installation, and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.
    Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County, 
Alabama:
    Unit 5 includes 3.7 km (2.3 mi) of the unnamed tributary of Beaver 
Creek from the Section \1/2\ (T16S, R2W) line, as taken from the U.S. 
Geological Survey 7.5-minute topographical map (Pinson quadrangle), 
downstream to its confluence with Beaver Creek.
    Almost 3.3 km (2.1 mi), or 89 percent of this area, is privately 
owned. The remaining 0.4 km (0.2 mi), or 11 percent, is publicly owned 
by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    The unnamed tributary to Beaver Creek supports populations of 
vermilion darters and provides supplemental water quantity to Turkey 
Creek proper (Primary Constituent Elements 1 and 2). The unnamed 
tributary to Beaver Creek has been intensely geomorphically changed by 
man over the last 100 years. The majority of this reach has been 
channelized for flood control, as it runs parallel to Highway 79. There 
are several bridge crossings, and the reach has a history of industrial 
uses along the bank. However, owing to the groundwater effluent that 
constantly supplies this reach with clean and flowing water (Primary 
Constituent Elements 2 and 3), the reach has been able to support 
significant aquatic vegetation and a population of vermilion darters at 
several locations. One of the three known spawning sites for the 
species is located within this reach (Primary Constituent Element 4) 
(Kuhajda, pers. comm. May 2007).
    The headwaters of the unnamed tributary to Beaver Creek is 
characterized by natural flows that are attributed to an abundance of 
spring groundwater discharges contributing adequate water quality, 
water quantity, and substrates (Primary Constituent Elements 1, 2, and 
3). Increasing the connectivity of the vermilion darter populations 
(Primary Constituent Element 1) into the upper reaches of this 
tributary is an essential conservation requirement as it would expand 
the range and decrease the vulnerability of these populations to 
stochastic threats.
    Threats to the vermilion darter and its habitat which may require 
special management and protection of primary constituent elements are: 
urbanization activities (such as channel modification for flood 
control, and gravel extraction) that could result in increased bank 
erosion; significant changes in the existing flow regime due to 
inadequate stormwater management and impoundment construction, water 
diversion, or water withdrawal; significant alteration of water 
quality; and significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge construction; culvert and pipe installation; and other watershed 
and floodplain disturbances that release sediments or nutrients into 
the water.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to insure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuits Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service, 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this 
regulatory definition when analyzing whether an action is likely to 
destroy or adversely modify critical habitat. Under the statutory 
provisions of the Act, we determine destruction or adverse modification 
on the basis of whether, with implementation of the final Federal 
action, the affected critical habitat would continue to serve its 
intended conservation role for the species.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to insure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action;
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction;

[[Page 75923]]

    (3) Are economically and technologically feasible; and
    (4) Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the vermilion darter or its 
designated critical habitat require section 7 consultation under the 
Act. Activities on State, tribal, local, or private lands requiring a 
Federal permit (such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from us under section 10 of the Act) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are subject to the section 7 consultation 
process. For instance, the Service should be consulted for disturbances 
to areas both within the final critical habitat units as well as 
upstream of those areas known to support vermilion darter, including 
springs and seeps that contribute to the instream flow in the 
tributaries, especially during times when stream flows are abnormally 
low (i.e., during droughts). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded, authorized, or permitted 
do not require section 7 consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the vermilion darter. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the vermilion darter include, but are not limited 
to:
    (1) Actions that would alter the geomorphology of the stream 
habitats. Such activities could include, but are not limited to, 
inadequate stormwater management, instream excavation or dredging, 
impoundments, channelization, and discharge of fill materials. These 
activities could cause aggradation or degradation of the channel bed 
elevation or significant bank erosion and could result in entrainment 
or burial of this species, as well as other direct or cumulative 
adverse effects to this species and its life cycle.
    (2) Actions that would significantly alter the existing flow 
regime. Such activities could include, but are not limited to, 
inadequate stormwater management, impoundments, water diversion, water 
withdrawal, and hydropower generation. These activities could eliminate 
or reduce the habitat necessary for growth and reproduction of the 
vermilion darter.
    (3) Actions that would significantly alter water chemistry or water 
quality (for example, changes to temperature or pH, introduced 
contaminants, or excess nutrients). Such activities could include, but 
are not limited to, inadequate stormwater management, the release of 
chemicals, biological pollutants, or heated effluents into surface 
water or connected groundwater at a point source or by dispersed 
release (nonpoint source). These activities could alter water 
conditions that are beyond the tolerances of the species and result in 
direct or cumulative adverse effects on the species and its life cycle.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, inadequate stormwater management; construction projects; 
road and bridge maintenance activities; livestock grazing; timber 
harvest; off-road vehicle use; underground gas, sewer, water, and 
electric lines; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water. These activities could 
eliminate or reduce habitats necessary for the growth and reproduction 
of the species by causing excessive sedimentation and burial of the 
species or their habitats, or eutrophication leading to excessive 
filamentous algal growth. Excessive filamentous algal growth can cause 
extreme decreases in nighttime dissolved oxygen levels through 
vegetation respiration, and cover the bottom substrates and the 
interstitial spaces between cobble and gravel.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.

[[Page 75924]]

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the final critical habitat designation. Therefore, there are no 
specific lands that meet the criteria for being exempted from the 
designation of critical habitat under section 4(a)(3) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate or make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific and commercial data available, that the failure 
to designate such area as critical habitat will result in the 
extinction of the species concerned. In making that determination, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, national 
security impacts, and any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If based on this analysis, we make this determination; we 
can exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular areas as critical habitat. In order to 
consider economic impacts, we prepared a draft economic analysis of the 
proposed critical habitat designation and related factors (RTI 
International 2010a). The draft analysis (dated June 29, 2010) was made 
available for public review from June 29, 2010, through July 29, 2010 
(75 FR 37350). No comments were received on the draft economic 
analysis. Following the close of the comment period, a final analysis 
(dated July 2010) of the potential economic effects of the designation 
was developed, taking into consideration any new information (RTI 
International 2010b).
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for the 
vermilion darter. Some of these costs will likely be incurred 
regardless of whether we designate critical habitat (baseline). The 
economic impact of the final critical habitat designation is analyzed 
by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs; these are the 
costs we consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the FEA looks retrospectively at costs 
that have been incurred since 2001, when the vermilion darter was 
listed under the Act (66 FR 59367), and considers those costs that may 
occur in the 25 years following the designation of critical habitat, 
which was determined to be the appropriate period for analysis because 
limited planning information was available for most activities to 
forecast activity levels for projects beyond a 25-year timeframe. The 
FEA quantifies economic impacts of vermilion darter conservation 
efforts associated with the following categories of activity: Water 
management, activities that impact water quality, dredging activities 
and other impacts (e.g., bridge replacement, management plans, and 
natural gas pipelines).
    Total baseline impacts (costs attributable to listing alone) are 
estimated to be $550,000 annually over the next 25 years, assuming a 7 
percent discount rate, and the total incremental costs (costs 
attributable to designation alone) associated with this rule are 
estimated to be $39.24 annually over the next 25 years, assuming a 7 
percent discount rate (RTI International 2010b).
    The critical habitat designation will result in minimal incremental 
costs because any adverse modification decision would likely be 
coincident to a jeopardy determination for the same action due to the 
species' narrow range. Therefore, the only incremental costs are those 
resulting from the additional administrative costs by the Service and 
the action agency to include an adverse modification finding within the 
biological opinion and biological assessment as part of a formal 
consultation.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, we have 
determined not to exert our discretion to exclude any areas from this 
designation of critical habitat for the vermilion darter based on 
economic impacts. A copy of the FEA with supporting documents may be 
obtained by contacting the Mississippi Fish and Wildlife Field Office 
(see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.

[[Page 75925]]

Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that the lands within the designation of critical habitat 
for the vermilion darter are not owned or managed by the Department of 
Defense, and, therefore, we anticipate no impact to national security. 
Consequently, we have determined not to exert our discretion to exclude 
any areas from this final designation based on impacts to national 
security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether landowners 
have developed any HCPs or other management plans for the area, or 
whether there are conservation partnerships that would be encouraged by 
designation of, or exclusion of lands from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no completed HCPs or other management plans for the species, 
and the final designation does not include any tribal lands or trust 
resources. We anticipate no impact to tribal lands, partnerships, or 
management plans from this final critical habitat designation. 
Consequently, we are not considering any areas for exclusion from this 
final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

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

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. In this final rule, 
we are certifying that the critical habitat designation for the 
vermilion darter will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the vermilion darter. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the vermilion darter and the proposed designation of 
critical habitat (see Section 6 in RTI International 2010b). The 
analysis is based on the estimated impacts associated with the 
rulemaking as described in sections 2 through 4 of the analysis, and 
evaluated the potential economic impacts related to future development, 
road construction, wastewater treatment, stream alteration, and water 
withdrawal.

[[Page 75926]]

    According to the FEA, the Service and action agency are the only 
entities with direct compliance costs expected to be assessed with the 
critical habitat designation. Thus, based on the above reasoning and 
currently available information, we concluded that this rule would not 
result in a significant economic impact on a substantial number of 
small entities. Therefore, we are certifying that the designation of 
critical habitat for the vermilion darter will not have a significant 
economic impact on a substantial number of small entities, and a 
regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect this rule to significantly affect 
energy supplies, distribution, or use. Although two of the final units 
are below hydropower reservoirs, current and proposed operating regimes 
have been deemed adequate for the species, and therefore their 
operations will not be affected by the final designation of critical 
habitat. All other final units are remote from energy supply, 
distribution, or use activities. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not jeopardize the continued existence of 
the species, or destroy or adversely modify critical habitat under 
section 7 of the Act. While non-Federal entities that receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would listing 
these species or designating critical habitat shift the costs of the 
large entitlement programs listed above on to State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the vermilion darter in a takings implications 
assessment. The takings implications assessment concludes that this 
designation of critical habitat for the vermilion darter does not pose 
significant takings implications.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with 
appropriate State resource agencies in Alabama. The critical habitat 
designation may have some benefit to this government in that the areas 
that contain the features essential to the conservation of the species 
are more clearly defined, and the primary constituent elements of the 
habitat necessary to the conservation of the species are specifically 
identified. While making this definition and identification does not 
alter where and what federally sponsored activities may occur, it may 
assist these local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the regulation meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of the Order. We are designating critical habitat in 
accordance with the provisions of the Act. This final rule uses 
standard property descriptions and identifies the physical and 
biological features essential to the conservation of the vermilion 
darter within the designated areas to assist the public in 
understanding the habitat needs of the species.

[[Page 75927]]

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 OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    We have determined that there are no tribal lands occupied by the 
vermilion darter at the time of listing that contain the features 
essential for the conservation of the species, and no tribal lands that 
are unoccupied by the vermilion darter that are essential for the 
conservation of the species. Therefore, we have not designated critical 
habitat for the vermilion darter on tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov and upon 
request from the Field Supervisor, Mississippi Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this package are staff members of the 
Mississippi Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. In Sec.  17.11(h), revise the entry for ``Darter, vermilion'' under 
FISHES in the List of Endangered and Threatened Wildlife to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                                                                         Fishes
 
                                                                      * * * * * * *
Darter, vermilion................  Etheostoma chermocki  U.S.A. (AL)........  Entire.............  E                       715     17.95(e)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95(e), add an entry for ``Vermilion Darter (Etheostoma 
chermocki),'' in the same alphabetical order as the species appears in 
the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Vermilion Darter (Etheostoma chermocki)
    (1) Critical habitat units are depicted for Jefferson County, 
Alabama, on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
vermilion darter consist of four components:
    (i) Geomorphically stable stream bottoms and banks (stable 
horizontal dimension and vertical profile) in order to maintain bottom 
features (riffles, runs, and pools) and transition zones between bottom 
features, to promote connectivity between spawning, foraging, and 
resting sites, and to maintain gene flow throughout the species range.
    (ii) Instream flow regime with an average daily discharge over 50 
cubic feet per second, inclusive of both surface runoff and groundwater 
sources (springs and seepages) and exclusive of flushing flows.
    (iii) Water quality with temperature not exceeding 26.7 [deg]C (80 
[deg]F), dissolved oxygen 6.0 milligrams or greater per

[[Page 75928]]

liter, turbidity of an average monthly reading of 10 NTU and 15mg/l TSS 
(Nephelometric Turbidity Units; units used to measure sediment 
discharge; Total Suspended Solids measured as mg/l of sediment in 
water) or less; and a specific conductance (ability of water to conduct 
an electric current, based on dissolved solids in the water) of no 
greater than 225 micro Siemens per centimeter at 26.7 [deg]C (80 
[deg]F).
    (iv) Stable bottom substrates consisting of fine gravel with coarse 
gravel or cobble, or bedrock with sand and gravel, with low amounts of 
fine sand and sediments within the interstitial spaces of the 
substrates along with adequate aquatic vegetation.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, bridges, 
aqueducts, airports, and roads, and the land on which such structures 
are located.
    (4) Critical habitat unit map. The map was developed from USGS 7.5' 
quadrangles. Critical habitat unit upstream and downstream limits were 
then identified by longitude and latitude using decimal degrees.
    (5) Note: Index map of critical habitat units for the vermilion 
darter follows:
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TR07DE10.005

BILLING CODE 4310-55-C
    (6) Unit 1: Turkey Creek, Jefferson County, Alabama.
    (i) Unit 1 includes the channel in Turkey Creek from Shadow Lake 
Dam (086[deg]38'22.50'' W long., 033[deg]40'44.78'' N lat.) downstream 
to the Section 13/14 (T15S, R2W) line (086[deg]42'31.81'' W long., 
033[deg]43'23.61'' N lat.).
    (ii) Map of Unit 1 is provided at paragraph (10)(ii) of this entry.

[[Page 75930]]

    (7) Unit 2: Dry Branch, Jefferson County, Alabama.
    (i) Unit 2 includes the channel in Dry Branch from the bridge at 
Glenbrook Road (086[deg]41'6.05'' W long., 033[deg]41'10.65'' N lat) 
downstream to the confluence with Beaver Creek (86[deg]41'17.39'' W 
long., 033[deg]41'26.94'' N lat.).
    (ii) Map of Unit 2 is provided at paragraph (10)(ii) of this entry.
    (8) Unit 3: Beaver Creek, Jefferson County, Alabama.
    (i) Unit 3 includes the channel of Beaver Creek from the confluence 
with the unnamed tributary to Beaver Creek and Dry Branch 
(086[deg]41'17.54'' W long., 033[deg]41'26.94'' N lat.) downstream to 
its confluence with Turkey Creek (086[deg]41'9.16'' W long., 
033[deg]41'55.86 N lat.).
    (ii) Map of Unit 3 is provided at paragraph (10)(ii) of this entry.
    (9) Unit 4: Dry Creek, Jefferson County, Alabama.
    (i) Unit 4 includes the channel of Dry Creek, from Innsbrook Road 
(086[deg]39'53.78'' W long., 033[deg]42'19.11'' N lat) downstream to 
the confluence with Turkey Creek (086[deg]40'3.72'' W long., 
033[deg]42'1.39'' N lat).
    (ii) Map of Unit 4 is provided at paragraph (10)(ii) of this entry.
    (10) Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County, 
Alabama.
    (i) Unit 5 includes the channel of the Unnamed Tributary from its 
confluence with Beaver Creek (086[deg]41'17.54'' W long., 
033[deg]41'26.94'' N lat.), upstream to the 1/2(T16S, R2W) section line 
(086[deg]42'31.70'' W long., 033[deg]39'54.15'' N lat.)
    (ii) Map of Units 1, 2, 3, 4, and 5 (Map 2) follows:
    [GRAPHIC] [TIFF OMITTED] TR07DE10.006
    

[[Page 75931]]


* * * * *

    Dated: November 26, 2010.
 Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-30420 Filed 12-6-10; 8:45 am]
BILLING CODE 4310-55-C