[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18087-18103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7668]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0071; 92220-1113-0000-C6]
RIN 1018--AW95


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

DATES: This final rule is effective May 2, 2011.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Panama City Field Office, U.S. Fish and Wildlife Service, 1601 
Balboa Avenue, Panama City, FL 32405.
    You may obtain copies of this final rule from the address above, by 
calling 850/769-0552, or at the Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Don Imm, Field Supervisor, at the 
Panama City Field Office (see ADDRESSES) (telephone 850/769-0552; 
facsimile 850/763-2177). Individuals who are hearing-impaired or 
speech-impaired may call the Federal Information Relay Service at 800/
877-8339 for TTY assistance 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    We proposed listing the Okaloosa darter as endangered on January 
15, 1973 (38 FR 1521) and listed the species as endangered under the 
Act (16 U.S.C. 1531 et seq.) on June 4, 1973 (38 FR 14678) due to its 
extremely limited range, habitat degradation, and apparent competition 
from a possibly introduced related species, the brown darter. We 
completed a recovery plan for the species on October 23, 1981, and a 
revised recovery plan on October 26, 1998.
    On June 21, 2005, we provided notice in the Federal Register that 
we were initiating a 5-year status review under the Act for the 
Okaloosa darter (70 FR 35689).The 5-year status review was completed in 
July 2007, and is available on our Web site at http://www.fws.gov/southeast/5yearReviews/5yearreviews/okaloosa_darterfinal.pdf.
    On February 2, 2010, we published a proposed rule to reclassify the 
Okaloosa darter from endangered to threatened and a proposed special 
rule under section 4(d) of the Act (75 FR 5263). We requested that all 
interested parties submit comments and information concerning the 
proposed reclassification of the Okaloosa darter. We provided 
notification of the publication of the proposed rule through e-mail, 
facsimile, telephone calls, letters, and news releases sent to the 
appropriate Federal, State, and local agencies; county governments; 
elected officials; media outlets; local jurisdictions; scientific 
organizations; interest groups; and other interested parties. We also 
posted the proposed rule on the Service's Panama

[[Page 18088]]

City Field Office Internet Web site following the rule's publication. 
We accepted public comments on the proposed rule for 60 days, ending 
April 5, 2010.

Background

    The Okaloosa darter, Etheostoma okaloosae, is a member of the 
family Percidae. It is a small, perch-like fish (maximum size is 49 
millimeters (mm) (1.93 inches (in.)) Standard Length) that is 
characterized by a well-developed humeral spot, a series of five to 
eight rows of small spots along the sides of the body, and the first 
anal spine being longer than the second. General body coloration varies 
from red-brown to green-yellow dorsally, and lighter ventrally, 
although breeding males have a bright orange submarginal stripe on the 
first dorsal fin (Burkhead et al. 1992, p. 23).
    The endemic Okaloosa darter is known to occur in only six clear 
stream systems that drain into two Choctawhatchee Bay bayous in Walton 
and Okaloosa Counties in northwest Florida. Okaloosa darters are 
currently found in the tributaries and the main channels of the 
following six streams: Toms, Turkey, Mill, Swift, East Turkey, and 
Rocky Creeks. Approximately 90 percent of the 457 square kilometer (176 
square mile) watershed drainage area that historically supported the 
Okaloosa darter is under the management of Eglin Air Force Base (AFB), 
and we estimate that 98.7 percent of the stream length in the darter's 
current range is within the boundaries of Eglin AFB. Eglin AFB 
encompasses the headwaters of all six of these drainages, and the 
remainder of the these streams flow out of Eglin AFB into the urban 
complex of the Cities of Niceville and Valparaiso (USAF 2006, p. 3-1).
    Longleaf pine-wiregrass-red oak sandhill communities dominate the 
vegetation landscape in Okaloosa darter watershed basins. These areas 
are characterized by high sand ridges where soil nutrients are low and 
woodland fire is a regular occurrence. Where water seeps from these 
hills, acid bog communities develop of Sphagnum sp. (sphagnum moss), 
Sarracenia sp. (pitcher plants), and other plants adapted to low 
nutrient soils. In other areas, the water emerges from seepage springs 
directly into clear flowing streams where variation of both temperature 
and flow is moderated by the deep layers of sand. The streams support a 
mixture of Mayaca fluviatilis (bog moss), Scirpus etuberculatus 
(bulrush), Orontium aquaticum (golden club), Sparganium americanum 
(burr-weed), Potamogeton diversifolius (pondweed), Eleocharis sp. 
(spikerush), and other aquatic and emergent plants.
    Okaloosa darters typically inhabit the margins of moderate- to 
fast-flowing streams where detritus, root mats, and vegetation are 
present. Historic densities averaged about two darters per meter (3.28 
feet) of stream length while more recent abundance estimates show an 
increase to an average of 2.9 darters per meter (Jordan and Jelks 2004, 
p. 3; USAF 2006, p. 3-1). They are only rarely collected in areas where 
there is no current or in open sandy areas in the middle of the stream 
channel. The creeks with Okaloosa darters are generally shaded over 
most of their courses, with temperatures ranging from 7 to 22 degrees 
Celsius ([deg]C) (44 to 72 degrees Fahrenheit ([deg]F)) in the winter 
(Tate 2008, pers. comm.; Jelks 2010, pers. comm.) to 22 to 29 [deg]C 
(72 to 84 [deg]F) in the summer (Mettee and Crittenden 1977, p. 5; 
Jelks 2010, pers. comm).
    Okaloosa darters feed primarily on fly larvae (Diptera sp.), mayfly 
nymphs (Ephemeroptera sp.), and caddis fly (Trichoptera sp.) larvae 
(Ogilvie 1980, as referenced in Burkhead et al. 1992, p. 26). The 
breeding season extends from late March through October, although it 
usually peaks in April. Spawning pairs have been videographed attaching 
one or two eggs to vegetation, and observed attaching eggs to woody 
debris and root mats (Collete and Yerger 1962, p. 226; Burkhead et al. 
1994, p. 81). Ogilvie (1980, as referenced in Burkhead et al. 1992, p. 
26) found a mean of 76 ova (unfertilized eggs) and 29 mature ova in 201 
female Okaloosa darters, although these numbers may under-represent 
annual fecundity as the prolonged spawning season is an indication of 
fractional spawning (eggs develop and mature throughout the spawning 
season). Estimates of longevity range from 2 to 5 years (Burkhead et 
al. 1992, p. 27; Jordan 2010, pers. comm.).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. The Act directs that, to the 
maximum extent practicable, we incorporate into each plan:
    (1) Site-specific management actions that may be necessary to 
achieve the plan's goals for conservation and survival of the species;
    (2) Objective, measurable criteria, which when met would result in 
a determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the list; and
    (3) Estimates of the time required and cost to carry out the plan.
    However, revisions to the list (adding, removing, or reclassifying 
a species) must reflect determinations made in accordance with sections 
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the 
Secretary determine whether a species is endangered or threatened (or 
not) because of one or more of five threat factors. Therefore, recovery 
criteria must indicate when a species is no longer endangered or 
threatened by any of the five factors. In other words, objective, 
measurable criteria, or recovery criteria contained in recovery plans, 
must indicate when we would anticipate an analysis of the five threat 
factors under 4(a)(1) would result in a determination that a species is 
no longer endangered or threatened. Section 4(b) of the Act requires 
the determination made be ``solely on the basis of the best scientific 
and commercial data available.''
    Thus, while recovery plans are intended to provide guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and on criteria that may be used to determine when 
recovery is achieved, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. Determinations to remove a 
species from the list made under section 4(a)(1) of the Act must be 
based on the best scientific and commercial data available at the time 
of the determination, regardless of whether that information differs 
from the recovery plan.
    In the course of implementing conservation actions for a species, 
new information is often gained that requires recovery efforts to be 
modified accordingly. There are many paths to accomplishing recovery of 
a species, and recovery may be achieved without all criteria being 
fully met. For example, one or more recovery criteria may have been 
exceeded while other criteria may not have been accomplished, yet the 
Service may judge that, overall, the threats have been minimized 
sufficiently, and the species is robust enough, that the Service may 
reclassify the species from endangered to threatened or perhaps delist 
the species. In other cases, recovery opportunities may have been 
recognized that were not known at the time the recovery plan was 
finalized. These opportunities may be used instead of methods 
identified in the recovery plan.
    Likewise, information on the species may be learned that was not 
known at

[[Page 18089]]

the time the recovery plan was finalized. The new information may 
change the extent that criteria need to be met for recognizing recovery 
of the species. Overall, recovery of species is a dynamic process 
requiring adaptive management, planning, implementing, and evaluating 
the degree of recovery of a species that may, or may not, fully follow 
the guidance provided in a recovery plan.
    Thus, while the recovery plan provides important guidance on the 
direction and strategy for recovery, and indicates when a rulemaking 
process may be initiated, the determination to remove a species from 
the Federal List of Endangered and Threatened Wildlife is ultimately 
based on an analysis of whether a species is no longer endangered or 
threatened. The following discussion provides a brief review of 
recovery planning for the Okaloosa darter as well as an analysis of the 
recovery criteria and goals as they relate to evaluating the status of 
the species.
    The recovery plan for the Okaloosa darter was approved on October 
23, 1981 (Service 1981, 18 pp.), and revised on October 26, 1998 
(Service 1998, 42 pp.). The recovery plan identifies a recovery 
objective of downlisting, and eventually delisting, the Okaloosa darter 
by enabling wild populations capable of coping with natural habitat 
fluctuations to persist indefinitely in the six stream systems they 
inhabit by restoring and protecting stream habitat, water quality, and 
water quantity. The Okaloosa darter may be considered for 
reclassification from endangered to threatened (downlisted) when:
    (1) Instream flows and historical habitat of stream systems have 
been protected through management plans, conservation agreements, 
easements, or acquisitions (or a combination of these);
    (2) Eglin AFB has and is implementing an effective habitat 
restoration program to control erosion from roads, clay pits, and open 
ranges;
    (3) The Okaloosa darter population is stable or increasing and 
comprised of two plus age-classes in all six stream systems for 5 
consecutive years;
    (4) The range of the Okaloosa darter has not decreased at all 
historical monitoring sites; and
    (5) No foreseeable threats exist that would impact the survival of 
the species.
    For more information on the recovery plan for the Okaloosa darter, 
a copy of the plan is posted on our Web site at http://ecos.fws.gov/docs/recovery_plan/970407.pdf.
    Each of the above criteria for downlisting the Okaloosa darter to 
threatened has been met, as described below.

    Downlisting Criterion (1): Instream flows and historical habitat 
of stream systems have been protected through management plans, 
conservation agreements, easements, or acquisitions (or a 
combination of these).

    The management plans of several agencies apply to streams in the 
range of the Okaloosa darter and are being implemented to protect this 
fish's water quality and quantity and its overall habitat. Probably the 
most influential of these is Eglin's integrated natural resources 
management plan (INRMP) (USAF 2007; USAF 2009), including the 
Threatened and Endangered Species Component Plan (USAF 2006). The INRMP 
is updated annually and re-confirmed every 5 years in consultation with 
the Service and the Florida Fish and Wildlife Conservation Commission 
(FWC) (see Factor D. under the Summary of Factors Affecting the Species 
section, below, for further detail and description of Department of 
Defense (DOD) protections, and the Available Conservation Measures 
section, below, for Act protections). The INRMP defines goals and 
specific objectives for managing natural resources on the base. The 
primary goal of Okaloosa darter management on Eglin AFB is to provide 
the highest level of capability and flexibility to the military testing 
and training mission while meeting the legal requirements of the Act, 
the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.), and other applicable 
laws. Another goal of the 2009 INRMP is to maintain or restore 
hydrologic processes in streams, floodplains, and wetlands when 
feasible. The specific objectives of Okaloosa darter management on 
Eglin AFB include:
    (1) Downlist the Okaloosa darter from endangered to threatened by 
the end of 2010, and delist the darter by the end of 2015;
    (2) Annually restore 2 fish passage barriers from the 20 identified 
sites in Okaloosa darter drainages as funding allows;
    (3) Develop a public information and awareness program for 
endangered and threatened species on Eglin AFB that have greater 
potential to be impacted by public activities, such as Okaloosa 
darters;
    (4) Complete a program by 2010 that would include an Air Armament 
Academy (A3) class (combined with Endangered Species Act class), 
informational brochures, and portable display boards;
    (5) Cooperate with the City of Niceville, Okaloosa County, and 
private landowners adjacent to Eglin AFB to recover the Okaloosa 
darter;
    (6) Identify and rehabilitate 150 soil erosion sites that have the 
potential to impact endangered and threatened species (Gulf sturgeon 
(Acipenser oxyrhynchus desotoi) and Okaloosa darter) habitat by 2011; 
and
    (7) Train and use Okaloosa darter monitoring crews and aquatic 
monitoring crews to survey and report the presence of invasive, 
nonnative plants and animals during their regular monitoring activities 
and treat invasive, nonnative plants as necessary.
    Instream flows and historical habitat have been protected through 
Eglin AFB's removal of fish passage barriers (INRMP Objective 2) and 
rehabilitation of soil erosion sites that are impacting endangered and 
threatened species (INRMP Objective 6). Further recovery efforts to 
benefit stream flows and historic habitat have been planned, including 
training darter monitoring crews to report invasive species found 
during regular survey efforts (INRMP Objective 7).
    In 2005, the Service, Eglin's Natural Resources Branch, The Nature 
Conservancy (TNC), and the FWC signed an agreement to cooperate in the 
stewardship of aquatic systems on lands of the Gulf Coastal Plain 
Ecosystem Partnership (GCPEP) in western Florida. GCPEP's Aquatic Team 
agreed to initially assign priority to strategies and projects that 
contribute to the recovery of the Okaloosa darter. We are working with 
GCPEP to use stream restoration techniques and management actions that 
have been established for Okaloosa darter watersheds on partner lands.
    The Three Rivers Resource Conservation and Development Council 
(Council) is a nonprofit organization set up to conserve the natural 
resources for, and to improve the overall economic condition of, rural 
and urban citizens. The Council is composed of representatives from the 
county Commissions and Soil and Water Conservation Districts, and 
includes three members at large from Escambia, Santa Rosa, Okaloosa, 
Walton, Bay, Washington, and Holmes Counties in Florida. The Council 
has developed an Area Plan (2003-2008), which includes:
    (1) A natural resources goal of encouraging proper management use 
and protection of the natural resource base;
    (2) An objective to assist local military bases in conservation 
planning efforts;
    (3) A strategy to continue a non-point project to control erosion 
with Eglin AFB; and
    (4) A strategy for habitat restoration, including four recently 
completed

[[Page 18090]]

projects that replaced or rehabilitated undersized or improperly placed 
culverts as well as eliminated sedimentation from roadway runoff.
    The Eglin golf course dominates land use in the Mill Creek Basin. 
Along with West Long Creek in the Rocky Creek Basin, these are the same 
drainages where monitoring suggests darter numbers have been declining 
in recent years. The Service and Eglin AFB have recently completed a 
habitat restoration project in the portion of Mill Creek that runs 
through the Eglin golf course. Work is ongoing to assess causes of 
declines in East Turkey and West Long Creeks.
    The Choctawhatchee Basin Alliance (a citizen's group), along with 
supporting State and Federal agencies, is implementing a program called 
``Breaking New Ground,'' which is a set of place-based air and 
watershed action plans for the Choctawhatchee River and Bay watershed. 
These plans address water quality monitoring, point and non-point 
source pollution, growth management, water supply, education, and 
citizen involvement in all Choctawhatchee Bay watersheds, including the 
darter drainages. This planning effort has resulted in the funding of 
studies to assess point and non-point source water pollution in the 
basin, including darter watersheds, and is expected to continue to 
assist in identifying and addressing potential long-term water quality 
and supply issues in the watershed, which is a positive step towards 
securing permanent protections for Okaloosa darter water quality and 
quantity.
    In addition, the Northwest Florida Water Management District 
(NWFWMD) (in conjunction with the Florida Department of Environmental 
Protection (DEP) has a Surface Water Improvement and Management (SWIM) 
Plan that addresses water issues in the Choctawhatchee River and Bay 
System, including the projected water supply needs of the coastal 
portions of Okaloosa and Walton Counties. Protecting water-dependent 
endangered species and their habitats are integral components of the 
SWIM Plan. In its water supply plan for the counties that encompass the 
range of the darter, the NWFWMD examines the water sources that could 
supply growing human water demands in the region (Bartel et al. 2000). 
Depending on its magnitude and spatial distribution, substantial new 
use of the Sand and Gravel Aquifer could diminish stream flow in the 
darter streams; however, the potential well fields that the NWFWMD 
identified are located south and west of the darter drainages.
    The opportunities for easements or acquisitions or both to protect 
the Okaloosa darter are limited, because over 90 percent of its 
historic range is on Federal land. The Service is currently working 
with FWC and a private landowner to secure a conservation easement for 
the portion of East Turkey Creek between the Eglin AFB boundary and 
Choctawhatchee Bay. This easement would help to secure nearly all of 
East Turkey Creek inhabited by Okaloosa darters outside the boundaries 
of Eglin AFB. Because Eglin AFB and others have demonstrated a 
commitment to recovery of the Okaloosa darter through natural resources 
management planning and coordination with the Service, we consider this 
downlisting criterion to be satisfied.

    Downlisting Criterion (2): Eglin AFB has (and is implementing) 
an effective habitat restoration program to control erosion from 
roads, clay pits, and open ranges.

    Accomplishments have been made in recovering Okaloosa darter 
habitat, and the Service continues to work with Eglin AFB, the City of 
Niceville, and Okaloosa and Walton Counties to restore additional 
habitat through the removal and replacement of road crossings and 
impoundments throughout the darter's range.
    Eglin AFB is implementing an effective habitat restoration program 
to control erosion from roads, borrow pits (areas where materials like 
sand or gravel are removed for use at another location), and cleared 
test ranges. Since 1995, Eglin AFB has restored 317 sites covering 
196.2 hectares (ha) (484.8 acres (ac)) that were eroding into Okaloosa 
darter streams. All 38 borrow pits within Okaloosa darter drainages are 
now stabilized (59.3 ha; 146.5 ac) (USAF 2005, p. 3-18). The other 279 
sites (136.9 ha; 338.3 ac) included in the total area are characterized 
as non-point sources (pollution created from larger processes and not 
from one concentrated point source, like excess sediment from a 
construction site washing into a stream after a rain) of stream 
sedimentation. Eglin AFB estimates that these efforts have reduced soil 
loss from roughly 69,000 tons per year in darter watersheds in 1994, to 
approximately 2,500 tons per year in 2010 (Pizzolato 2010, pers. 
comm.). As of 2006, Eglin AFB had completed about 95 percent of the 
erosion control projects identified for the darter watersheds (USAF 
2006, p. 3-5). Restoration activities began earlier in the Boggy Bayou 
drainages. Accordingly, darter numbers increased in the Boggy Bayou 
drainages earlier than in the Rocky Bayou drainages. Increases in 
darter numbers over the past 10 years generally track the cumulative 
area restored during that timeframe (Jordan and Jelks 2004, p. 9).
    Many road crossing structures have been eliminated as part of Eglin 
AFB's restoration activities. Of the 152 road crossings that previously 
existed in Okaloosa darter drainages, 57 have been eliminated: 28 in 
Boggy Bayou streams, and 29 in Rocky Bayou streams. Most of these were 
likely barriers to fish passage or problems for stream channel 
stability, and removing them has improved habitat and reduced 
population fragmentation. We have determined that 21 of the remaining 
road crossings are barriers to fish passage. Many of these are culverts 
with the downstream end perched above the stream bed, precluding the 
upstream movement of fish during normal and low-flow conditions. Ten of 
the 21 barriers are of little to no adverse consequence to darter 
habitat connectivity because they occur on the outskirts of the current 
range or are immediately adjacent to another barrier or impoundment. 
However, darters downstream of the 11 remaining barriers cannot move 
upstream during normal and low-flow conditions. To date, 7 of these 
have been removed or replaced with appropriate structures and the 
remaining 4 will be removed in 2011.
    Impoundments may also fragment darter habitat and populations. As 
of 2005, there were 32 impoundments within the darter's range. Most of 
these are the result of beaver activity at road-stream crossings, and 
some are located within reaches from which darters are extirpated or in 
headwater regions of streams where darters are typically found only in 
low densities. As part of the road-stream crossing rehabilitation work, 
Eglin has prioritized restoration or replacement of road-stream 
crossings where beaver activity has impounded stream flow. Major 
projects under this program include multi-partner stream restoration 
efforts in Little Rocky Creek and Toms Creek. These projects required 
removal of historical railroad crossings that had been impounded by 
beavers and included greater than 100 meters of natural channel design 
and construction.
    Manmade structures accounted for 12 of the 32 impoundments in 
Okaloosa darter watersheds. Working with the Service, the Council, FWC, 
and the Mid-Bay Bridge Authority (MBBA), Eglin AFB has removed six 
recreational impoundments, including all impoundments in the Turkey 
Creek watershed. Two major stream restoration projects have been

[[Page 18091]]

conducted on Eglin AFB, both utilizing natural channel design to 
eliminate impoundments and fish passage barriers while promoting public 
recreation.
    In FY 2007, Eglin AFB restored portions of Mill Creek within the 
Falcon and Eagle golf course. Staff from Eglin Natural Resources, the 
Eglin golf course, and the Service determined that it was feasible to 
restore all impoundments upstream of Plew Lake, the largest impoundment 
on the system, to free-flowing streams and to remove all but one of the 
culverts that convey the stream underneath fairways on the golf course. 
Present in the smallest of the six darter watersheds, the darter 
population in Mill Creek is probably most vulnerable to extirpation. 
Within one year of completion, Okaloosa darters had colonized the 
entire restoration project and recruitment had been observed. We 
anticipate that restoration at Mill Creek will help maintain a viable 
population in the Mill Creek system.
    In 2009, a partnership including Eglin AFB, the Service, FWC, and 
MBBA initiated a restoration of Anderson Pond and the adjacent 
campground and recreation area. As part of this project, the 
impoundment was removed, and over 1000 meters of stream channel were 
constructed. A new pond was excavated in a portion of the original 
impoundment to accommodate fishing and other recreational activities. 
This project has reconnected darters isolated in the headwater reaches 
of Anderson Branch with the Turkey Creek population and re-established 
habitat for an estimated 1,500 to 2,000 darters. Both the Mill Creek 
and Anderson Pond projects accomplished stream restoration while 
promoting outdoor recreation and education opportunities for the 
public.
    Based on the observations shared above, Eglin AFB has effectively 
implemented this downlisting criterion and continues to make additional 
progress in reducing remaining erosion problems on the base. These 
actions appear to be associated with identifiable increases in Okaloosa 
darter numbers and occupied range. We will continue to partner with 
Eglin AFB to find similar opportunities like Mill Creek and Anderson 
Pond to restore habitat. Because Eglin AFB and others have demonstrated 
a commitment to recovery of the Okaloosa darter through natural 
resources management planning and coordination with the Service, we 
consider this downlisting criterion to be satisfied.

    Downlisting Criterion (3): Okaloosa darter population is stable 
or increasing and comprised of two plus age-classes in all six 
stream systems for 5 consecutive years.

    We had no estimate of population size at the time of listing, 
although the historic range of the Okaloosa darter is fairly well 
documented. Relative abundance estimates were determined annually from 
1987-88 to 1998 at Eglin AFB. Bortone (1999, p.15) compared the 
relative abundance (number per sampling hour) of darters at 16 to 18 
stations over 10 sampling seasons. The mean number of Okaloosa darters 
per sample (in those samples that yielded darters) was slightly lower 
in the earlier sampling period (1987 to1991), higher during the middle 
sampling years (1992 to 1997), and distinctly lower in 1998 and 1999. 
Bortone (1999, p. 9) concluded that this may not have indicated an 
overall trend in the reduction in Okaloosa darters as much as it may be 
indicative of changes that specifically reduced preferable habitat and 
increased sampling effectiveness at certain sites, as several sites 
were altered by beaver activity while others became more rooted with 
undergrowth. Generally, the data do not indicate any overall major 
trends in decline or increase during the 10-year sampling period 
(Bortone 1999, p.10).
    The U.S. Geological Survey (USGS) and Loyola University New Orleans 
has surveyed between 12 and 60 sites for Okaloosa darters annually 
since 1995 (Jordan and Jelks 2004, p. 2). Their methodology has evolved 
into counting darters in 20-m (66-ft) segments using mask and snorkel 
visual surveys, and includes collection of habitat conditions such as 
water depth, stream discharge, substrate type, and canopy cover. 
Collectively, Jordan and Jelks' data show an almost tripling of darter 
numbers in a 10-year timeframe, from an average of about 20 darters per 
20-m (66-ft) segment sampled in 1995, to about 55 darters per segment 
in 2004. Dips in Okaloosa darter densities occurred in 2001-02 and in 
2009, which corresponded with years of regional drought conditions. 
Even during these years, however, darter numbers were almost double 
those of 1995 and 1996.
    The current rangewide total population estimate, estimated by 
applying Jordan and Jelks (2004, p. 3) study area-wide density estimate 
of 3.1 darters per meter (m) (or per 3.28 feet) to our estimates of 
occupied stream length in each of the six Okaloosa darter basins, is 
802,668 darters with an estimated 625,279 mature individuals (Service 
2007, Table 2). In order to expand the surveyed range of the species, 
69 sites were seine surveyed in 50-m (164-ft) segments by the Service 
in 2004-05, with many of those being outside the area surveyed by 
Jordan and Jelks (2004). Observed segment densities were transformed to 
local abundance estimates based upon the Jordan et al. (2008, pp. 316-
318) comparison of seine versus visual counts and depletion sampling. 
These surveys produced an overall density estimate of 1.28 darters per 
meter (or per 3.28 ft) and an abundance estimate of 259,355 mature 
individuals (Service 2007, Table 3). This estimate is very conservative 
because seining typically only recovers about a third of the Okaloosa 
darters detected visually (Jordan et al. 2008, p. 318) For more 
information on sampling methods, see the Service's 2007 5-year status 
review of the Okaloosa darter (Service 2007).
    Standardized sampling since the status review continues to show 
robust numbers of Okaloosa darters. A visual survey conducted in 2009 
showed an average density of 3.1  2.3 Okaloosa darters per 
linear meter (Jelks pers. comm. 2010).
    Downlisting criterion number (3) is further defined in Appendix A 
of the Okaloosa darter recovery plan to include a specific standardized 
sampling methodology. An operational definition of a ``stable'' 
population is also provided in Appendix A of the recovery plan. The 
definition of a ``stable'' population applies to 26 long-term 
monitoring sites and has three parts:
    (1) Okaloosa darter numbers remain above 1.75 standard deviations 
below the cumulative long-term average at each of the monitoring sites;
    (2) The long-term trend in the average counts at each monitoring 
site is increasing, or neutral; and
    (3) The range that the species inhabits is not decreased by more 
than a 500-meter (1,640.4-ft) stream reach within any of the six stream 
systems.
    Although the darter meets the criterion for a stable population, 
the validity of the criteria in the operational definition of 
``stable'' has come into question since 1998, when the recovery plan 
was prepared. As identified in our 2007 5-year status review of the 
Okaloosa darter (Service 2007, p. 6), monitoring has shown that natural 
variation coupled with sampling method (seining versus visual survey) 
might result in a variation greater than 1.75 standard deviations while 
still maintaining a stable or increasing trend. Therefore, we have 
found that this operational definition may no longer reflect the true 
status of the species. We plan to revise the recovery criteria to 
incorporate advances in population assessment that use variation at 
specific localities while incorporating adjustments for sampling error.

[[Page 18092]]

    Current estimates of Okaloosa darter numbers were calculated using 
two different methods of standardizing monitoring and survey data. The 
first method used visual surveys in 28 20-m (66-ft) segments of stream 
encompassing the six principal basins; a study area-wide density 
estimate was applied to the known occupied stream length for a 2004 
total population estimate of 802,668 darters with 95 percent confidence 
interval (CI) ranging from 503,457 to 1,323,597 (Service 2007, Table 
2). The second method transformed seine sample density estimates to 
local abundance estimates, based upon the Jordan et al. (2008) 
comparison of seine versus visual counts and depletion sampling, to 
calculate a 2004-05 population estimate of 259,355 with 95 percent CI 
ranging from 216,120 to 302,590 darters (Service 2007, Table 3). 
Acknowledging the greater error likely associated with the seine-based 
calculations, they provide a more conservative population estimate; 
however, both estimates are large given the naturally small range of 
the species.
    As identified in our 2007 5-year status review (Service 2007, p. 6-
7), the long-term trend in the average counts at each monitoring site 
indicated that the four smallest darter watersheds (Toms, Swift, Mill, 
and East Turkey), as well as West Long Creek and East Long Creek, were 
decreasing while the watersheds of Rocky Creek and Turkey Creek were 
increasing. However, sampling conducted since restoration activities on 
Mill Creek were completed indicates that darter numbers are now 
increasing. Using the estimated length of occupied habitat for these 
creeks, darter numbers are stable or increasing in 86 percent of their 
current range and decreasing in 14 percent of their current range. All 
of the declining trends were sampled by seining, not visual surveys, 
and may reflect variable sampling efficiency over time. For example, 
one site has become almost impossible to seine due to the exposure of 
tree roots resulting from stream bed degradation. Because seining 
detects only about 32 percent as many Okaloosa darters as visual 
surveys (Jordan et al. 2008, p. 313), the long-term trends in darter 
counts at sites sampled by seine may not reflect actual trends. 
Furthermore, there appears to be a reduction in numbers at many of the 
sites in 1998 to 2000, prior to which counts appear to be relatively 
consistent or generally increasing, which correspond to a drought that 
began in 1998. Following 1998, the darter counts at these sites follow 
a stable or increasing trend at reduced densities (Service 2007, Figure 
6). Because recovery criteria were based on data collected in years 
with normal rainfall, variation associated with droughts could not be 
accounted for and strict interpretation of criteria is likely not 
biologically appropriate.
    The range of the Okaloosa darter is represented as the cumulative 
stream length of occupancy in a basin. However, the annual monitoring 
identified in the recovery plan is not specifically designed to measure 
the length of a range reduction. Therefore, we are unable to determine 
whether part (3) of the operational definition of ``stable'' (A 
population will be considered stable if * * * (3) the range that the 
species inhabits is not decreased by more than a 500-meter (1,640.4-ft) 
stream reach within any of the six stream systems) has been met. 
Further, as noted previously, seining has been shown to detect only 
about 32 percent as many darters as visual surveys (Jordan et al. 2008, 
p. 313), increasing the probability of incorrectly concluding that 
darters are absent when using this survey method. Therefore, we do not 
feel that this aspect of the definition of ``stable'' is appropriate.
    Okaloosa darters population numbers have increased since 1995, and 
have remained consistently stable at all sites where current sampling 
techniques are utilized. Annual population monitoring by USGS and 
Loyola University New Orleans has detected young-of-the-year and adult 
fish in all six stream systems for the past 13 years (Service 2007). 
Okaloosa darters appear to have expanded their range in Mill Creek 
following habitat restoration activities in 2007, and have been 
collected in the southern/western tributary of Toms Creek previously 
thought to be uninhabited. We have not observed extirpation at any of 
the monitoring sites since 1998, and sampling conducted in 2009 
continues to show robust numbers of Okaloosa darters. Acknowledging the 
limitations in the criteria outlined in Appendix A of the recovery 
plan, we consider this downlisting criterion to be satisfied.

    Downlisting Criterion (4): The range of the Okaloosa darter has 
not decreased at all historical monitoring sites.

    As noted above, trends in the range of the Okaloosa darter are 
difficult to interpret. Darters have expanded their range in Mill Creek 
as a result of habitat restoration. A recent collection of darters from 
the southern/western tributary of Toms Creek may represent an 
additional range expansion; however, additional field surveys will be 
necessary to determine the extent and stability of the occupied 
habitat. If Okaloosa darters are established in this tributary, this 
would represent a range expansion of about 2.25 kilometers (1.4 miles). 
The Okaloosa darter has been extirpated from about 9 percent of the 402 
km (249.8 mi) of streams that comprise its total historical range. 
Nearly all of these impacts occurred prior to the original recovery 
plan in 1984, and most were likely prior to the species listing in 
1973. The Swift Creek monitoring site is the only established 
monitoring site where an extirpation appears to have occurred. This is 
evidenced by a single collection of 2 individuals in 1987; otherwise 
Okaloosa darters have not been collected at this site. Because local 
extirpation occurred more than 20 years ago, the darter has expanded 
its range in Mill Creek and Toms Creek, and we have not witnessed a 
reduction in range since the revision of the recovery plan in 1998, we 
consider this criterion to be met.

    Downlisting Criterion (5): No foreseeable threats exist that 
would impact the survival of the species.

    At this stage of the recovery of Okaloosa darter, threats remain 
under Listing Factor A: the present or threatened destruction, 
modification, or curtailment of the species' habitat or range. Resource 
stewardship on Eglin AFB is generally reducing the threat of habitat 
destruction and range reduction from sedimentation from unpaved roads 
and areas adjacent to poorly designed or maintained paved roads. As of 
2006, about 95 percent of the erosion control projects identified in 
darter watersheds had been completed (USAF 2007, pp. 3-5). Eglin AFB is 
continuing to fund these projects to completely eliminate the threat. 
We will continue to work with Eglin AFB to remove remaining erosion 
sources or point and non-point pollution sources in Okaloosa darter 
habitat. In addition, stream restoration projects have been completed, 
and new projects are being considered on Eglin AFB. We will work with 
Elgin AFB to ensure Okaloosa darter habitat is protected.
    Although water quality issues associated with the Niceville 
landfill and sprayfield continue to threaten the darter, they are being 
examined in a research project, which began in 2007. We recently worked 
with the City of Niceville to improve its wastewater collection system 
and install more appropriate culverts at a number of road crossings. In 
addition, as stated above, a few of the Okaloosa darter's streams have 
been indicated as potentially impaired due to biological indicators. We 
will continue to work with Eglin AFB and the city of Niceville to

[[Page 18093]]

determine the causes of impairment and remove them.
    Proposed plans to assign additional military forces to Eglin AFB 
may alter the military mission and could potentially impact Okaloosa 
darter populations; however, we do not anticipate any increase in 
threats from this action as the new ranges have been moved outside of 
Okaloosa darter habitat. Eglin AFB has also agreed to provide a 300-ft. 
buffer along all darter streams when conducting any troop maneuvers. On 
the smaller creeks, where we noted a general long-term decline in 
average counts, we will continue to investigate using survey protocols 
whether habitat attributes at these sites are the cause.
    The Okaloosa darter was listed in 1973 as an endangered species. At 
the time of listing, the species faced significantly greater threats 
than it does today, as evidenced by the numerous recovery actions to 
date that have improved and restored its habitat conditions. These 
recovery actions include completing 95 percent of the erosion control 
projects identified in darter watersheds, thereby significantly 
reducing the most intense threat to the species (see the Summary of 
Factors Affecting the Species section below for further details). Now, 
more than 35 years after it was listed under the Act, the Okaloosa 
darter's overall status has improved. Given that the threats to the 
species have been significantly reduced, we have determined that the 
Okaloosa darter has recovered to the point where it now meets the 
definition of a threatened species--one that is ``likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' In other words, although some 
threats to the Okaloosa darter continue to exist, these threats are not 
likely to cause the species to become extinct throughout all or a 
significant portion of its range within the foreseeable future. Data 
collected on the distribution and abundance of the species indicate 
that the species' range has expanded and overall population numbers are 
increasing. The Okaloosa darter has met all five downlisting criteria 
in its recovery plan.

Summary of Comments and Responses

    During the 60-day comment period on the proposed rule, which began 
on February 2, 2010, and ended on April 5, 2010 (75 FR 5263), we 
received only two written comments, both of which supported both 
reclassification of the Okaloosa darter from endangered to threatened 
and the special rule. The proponents of the reclassification included 
the FWC and TNC. We received no public hearing requests. In accordance 
with our peer review policy published on July 1, 1994 (59 FR 34270), we 
solicited independent opinions from three knowledgeable individuals who 
have expertise with the species and the geographic region where the 
species occurs and are familiar with conservation biology principles. 
We received comments from all three of the peer reviewers. The 
reviewers were affiliated with the State of Florida, a Louisiana 
university, and a Federal Government agency. Reviewers provided 
additional factual information, as well as minor corrections and input 
on our interpretation of existing information. In general, all peer 
reviewers concurred with the downlisting of the Okaloosa darter to 
threatened status and the special rule. We reviewed all comments 
received from the peer reviewers and the public for substantive issues 
and new information regarding the proposed reclassification. 
Substantive comments we received during the comment period have been 
addressed below and, where appropriate, incorporated directly into this 
final rule. The comments are grouped below according to peer review or 
public comments.

Peer Review/State Comments

    (1) Comment: One reviewer expressed concern for the population of 
Okaloosa darters in Shaw Still Branch, a tributary to Swift Creek, due 
to isolation resulting from College Pond and habitat degradation.
    Response: We agree that the population in Shaw Still Branch should 
be closely monitored and that restoration of College Pond should be 
considered; however, the Okaloosa darter population and suitable 
habitat persist in this stream. In addition, there has been a stable or 
increasing trend of darters in all darter stream systems, including 
Swift Creek. We do not feel that the genetic isolation of the Shaw 
Still Branch darter population precludes reclassification from 
endangered to threatened, which is based on an assessment of the 
species' status and threats as a whole.
    (2) Comment: Two reviewers expressed concern over the Mid-Bay 
Bridge Connector Road and long-term secondary and cumulative effects to 
the Okaloosa darter.
    Response: We recently completed consultation under section 7(a)(2) 
of the Act on this road project and have updated the discussion of this 
project in this rule (see Summary of Factors Affecting the Species; 
Factor A. discussion). We found that the proposed Mid-Bay Bridge 
Connector Road is not likely to jeopardize the continued existence of 
the Okaloosa darter. There are many conservation measures in place to 
minimize the impacts of the roadway, and the potential secondary and 
cumulative effects will be minimized through efforts to work with with 
private property owners to protect floodplain and riparian habitat and 
reduce threats along Okaloosa darter streams. Given the specific 
extensive conservation measures included in the project, we do not 
consider the Mid-Bay Bridge Connector Road to be a significant threat 
to Okaloosa darters.
    (3) Comment: Although the sand and gravel aquifer that feeds the 
darter drainages is not currently used for human consumption, one 
reviewer expressed concern that plans for wellfields have been proposed 
within Okaloosa darter drainages.
    Response: We are not aware of any proposals to directly use the 
sand and gravel aquifer for human consumption. The NWFWMD has recently 
announced plans for an offline reservoir in the Shoal River (Yellow 
River watershed) to supply drinking water to Okaloosa County. This 
action will use surface water and is outside the primary recharge area 
for streams inhabited by the Okaloosa darter; therefore, we believe 
there will be little to no impact on Okaloosa darters related to this 
offline reservoir. Eglin AFB, the cities of Niceville and Valparaiso, 
and Okaloosa County have not indicated plans to establish wellfields in 
the foreseeable future.
    (4) Comment: One reviewer expressed concern that the proposed rule 
recommended delisting by 2012.
    Response: The proposed rule actually noted that Eglin AFB's INRMP 
goals for darter management recommended delisting by 2012. The proposed 
rule was updated to reflect the most recent annual update of the INRMP, 
which now recommends delisting by 2015. In any case, this is Eglin 
AFB's recommendation, and does not reflect the views of the Service. A 
determination to remove a species from the Federal List of Endangered 
and Threatened Wildlife is made by the Service and is based on an 
analysis of whether a species is no longer endangered or threatened.
    (5) Comment: One reviewer was concerned that our population 
estimate was inflated because we assumed that all stream segments 
within the six darter drainages are suitable for Okaloosa darters.
    Response: We did not assume that all stream segments within the six 
Okaloosa darter drainages are suitable

[[Page 18094]]

for Okaloosa darters when we derived the population estimate of 802,668 
darters. A complete description of the methods we used to derive the 
amount of suitable habitat can be found in Service 2007, pages 16-18. 
In general, we calculated the total stream length within the Okaloosa 
darter drainages and then subtracted the impoundments and the segments 
that we believe no longer support Okaloosa darters from total stream 
length. However, we still believed that not all portions of the 
remaining stream length were necessarily suited for Okaloosa darters. 
To correct for this bias, we applied darter/habitat relationships to 
estimate the proportion of potential habitat that may be occupied. We 
estimated that for the roughly 365 km of potential darter habitat, 
about 261 km would be occupied, and estimated the population 
accordingly.
    (6) Comment: One reviewer noted that the fixed station sampling 
methodology may only be capturing a localized density increase, not a 
true population increase.
    Response: We agree with the reviewer that alternative study designs 
to fixed station sampling, such as random site selection, can provide 
more robust conclusions about population trends. The critique of fixed 
site sampling is that nonrepresentative data may be collected, thereby 
increasing the chance of incorrect conclusions. In the case of fixed 
station sampling of Okaloosa darters, we believe the chances of 
collecting nonrepresentative data are fairly low. The fixed stations 
occur across multiple sites in all six darter drainages. The number of 
sites has been high, with anywhere from 12 to 60 sites sampled annually 
since 1995, and collectively these data show an almost tripling of 
darter numbers in a 10-year timeframe. In addition, Okaloosa darters 
appear to have expanded their range in Mill Creek and possibly in a 
tributary of Toms Creek previously thought to be uninhabited. 
Therefore, we believe it is reasonable to conclude that the overall 
increasing trend in the fixed station sampling data is likely 
reflecting an increase in the Okaloosa darter population as a whole.
    (7) Comment: One reviewer was concerned that the Service redefined 
recovery criteria so as to minimize the importance of population 
declines and extirpations in areas outside of Eglin AFB in order to 
expedite the reclassification process.
    Response: This comment was first directed at the language under the 
Recovery section of the proposed rule (75 FR 5265; February 2, 2010) 
that describes how precise attainment of all recovery criteria is not a 
prerequisite for downlisting. In addition, within each recovery 
criterion, the reviewer believes we have redefined the Okaloosa darter 
population to be those darters on Eglin AFB and thereby implied that 
the 1.3 percent of the current geographic range that is outside of 
Eglin AFB is of marginal importance. We do not agree with this comment 
because we manage the Okaloosa darter as a whole across its range and 
have to address its status and threats it faces across its range. A 
determination to reclassify a species' status on the Federal List of 
Endangered and Threatened Wildlife is ultimately based on an analysis 
of whether a species is no longer endangered or no longer threatened. 
Based on the best available scientific information, the population as a 
whole has increased, and its threats have decreased within 98.7 percent 
of its current range and 90 percent of its historic range. We agree 
with the reviewer that the populations of Okaloosa darters outside of 
Eglin AFB are important to the overall population resiliency and for 
full recovery and delisting of the species.
    (8) Comment: One reviewer expressed concern that we did not use the 
best scientific data available because we did not rely on a recent 
unpublished study on the degree of genetic distinction in Okaloosa 
darters among streams. The study found that each of the six Okaloosa 
darter drainages support genetically unique populations. The reviewer 
felt that the populations outside Eglin AFB in Mill, Swift, and East 
Turkey creeks are in danger of extinction and recommended that the 
Service consider reclassifying only populations of Okaloosa darters in 
the Toms, Turkey, and Rocky creek drainages and leave populations in 
the Mill, Swift, and East Turkey creek drainages as endangered.
    Response: We did not include the findings of this study in our 
analysis because at the time the proposed rule was published, this 
study was not available. The authors only very recently completed a 
final report and submitted it for publication in a peer-reviewed 
journal (Austin et al. 2010, unpublished data). In summary, the authors 
conducted mitochondrial and nuclear DNA analyses to determine the 
degree of genetic distinction among streams. They found that Toms 
Bayou, Boggy Bayou, and Rocky Bayou are three evolutionarily 
significant units and, to a lesser extent than the bayous, all six 
streams are genetically unique. They also found that robust historical 
genetic estimates of abundance and recent census estimates support the 
decision to reclassify the Okaloosa darter to threatened.
    Based on the subtly different genetic characteristics of these six 
streams, it is conceivable that extirpation of Okaloosa darters in any 
of the six streams would result in a loss of genetic variation. While 
we acknowledge there have been localized declines in the populations in 
Mill, Swift, and East Turkey creeks, we do not agree that darters are 
in danger of extirpation from these creeks. Darter populations in Mill 
Creek have been increasing since restoration was completed, and we 
expect this restoration will result in a viable, sustainable 
population. In addition, significant parts of all three of these 
streams are located on Eglin AFB, where resource stewardship and 
protection is generally reducing the threat of habitat destruction and 
range reduction. Outside of Eglin's borders, we are working with the 
City of Niceville and private landowners to reduce threats to Okaloosa 
darters. The status of the species as a whole has improved and threats 
have decreased in all six streams. We will continue to work with the 
authors as we work towards recovery of the Okaloosa darter.
    (9) Comment: One reviewer disagreed with how we defined 
``significant portion of the range,'' noting that if we considered the 
six drainages separately based on genetic differences noted in Austin 
et al. (2010, unpublished data), there is considerable likelihood that 
Okaloosa darter is in danger of extinction in a significant portion of 
its range due to the more pronounced threat in the areas outside of 
Eglin AFB.
    Response: The Okaloosa darter was listed due to threats across its 
entire range. In our evaluation of significant portion of the range for 
this species, we assessed threats across the landscape to determine if 
any areas were experiencing unique impacts. We then determined if those 
areas were significant to the species as a whole as further described 
below in the Significant Portion of the Range section of this rule. In 
evaluating this comment, we determined that, although each drainage may 
possess slightly different genetics (Austin et al. 2010, unpublished 
data), the drainages are all subject to similar threats. The area 
outside of the Eglin AFB was not considered a significant portion of 
the range, because this area is small and is similar in structure to 
habitat found throughout the rest of the species' range. We have 
determined that there are no portions of the range that qualify as a 
significant portion of the range for the darter.

[[Page 18095]]

    (10) Comment: One reviewer disagrees that almost all of the human 
activities that may affect the existing darter population are Federal 
actions.
    Response: Of the darter's current range, 98.7 percent is on Federal 
lands, and the remaining 1.3 percent occurs downstream of the 
boundaries of Eglin AFB. We agree that there are human activities that 
impact the darter in the 1.3 percent of the darter's range outside of 
Eglin AFB; however, almost all of the darter's range is within Federal 
lands and subject to Federal statutes and regulations, including the 
Sikes Act and Sikes Improvement Act, the Act, and the CWA, as well as 
other applicable State laws. Furthermore, any State, local, and private 
projects outside of Eglin AFB that use Federal funds or require Federal 
permits must undergo section 7 consultation under the Act.
    (11) Comment: One reviewer expressed concern for delisting by 
asking how the Okaloosa darter can be delisted given that the species 
was primarily listed due to a restricted geographic range and that will 
never change.
    Response: The Service is not considering delisting the species at 
this time. The determination to remove a species from the Federal List 
of Endangered and Threatened Wildlife is based on an analysis of 
whether a species is no longer endangered or threatened by any of the 
five factors: (1) Habitat modification, destruction, or curtailment; 
(2) overutilization of the species for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence. The Okaloosa darter 
was initially listed not only due to its restricted range but also 
because of habitat degradation from roads, dams, and land clearing, and 
the threat of competition with brown darters. Delisting the species 
would involve a full assessment of these and other threats impacting 
the Okaloosa darter in consideration of its restricted range. As 
discussed throughout this rule, there has been a substantial reduction 
in threats to the species' habitat, and brown darters do not appear to 
be a significant threat to its recovery. There are still actions needed 
for the Okaloosa darter to continue to recover, including cooperative 
agreements to protect and restore habitat, water quality, and water 
quantity outside of Eglin AFB, and the continued improvement and 
maintenance of water quality and riparian habitat on Eglin AFB.
    (12) Comment: One reviewer expressed concern regarding the 
enforcement of the Act as it relates to Okaloosa darter in areas that 
occur outside of Eglin AFB.
    Response: All State, local, and private projects outside of Eglin 
AFB that use Federal funds or require Federal permits (for example CWA 
section 404 dredge-and-fill permits) must undergo section 7 
consultation under the Act. In addition, under section 9 of the Act, 
``take'' (defined as to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct 
in section 3(19) of the Act) will still be prohibited on private lands 
as it was when the species was listed as endangered. The special rule 
under section 4(d) of the Act does not remove the prohibitions against 
take outside of Eglin AFB's habitat restoration projects. The Service 
also works proactively with the Florida Fish and Wildlife Conservation 
Commission and private landowners to facilitate darter habitat 
restoration off of Eglin AFB.

Public Comments

    The following public comment addresses issues that were not raised 
by the peer reviewers. If an issue brought up by a peer reviewer was 
also raised by the public, it is discussed above in the peer review 
comment section rather than below.
    (13) Comment: In relation to additional subpopulations of Okaloosa 
darters, one commenter suggested we conduct an assessment of other 
stream systems within the Rocky Bayou drainage that may have 
historically contained the Okaloosa darter. The commenter also 
described a stream restoration project in Puddin Head Lake, a steephead 
stream system adjacent to the Rocky Creek watershed, noting that this 
stream may have historically contained Okaloosa darters and recommended 
that the Service consider this stream restoration project as a current 
activity that may benefit the Okaloosa darter.
    Response: We agree and plan to evaluate other streams within all 
three bayous that may have historically contained Okaloosa darters to 
locate suitable habitat and possible additional populations. Okaloosa 
darters do not occur in Puddin Head Lake, but we plan to evaluate 
restored habitat within the Puddin Head stream and other locations that 
may have historically contained Okaloosa darters as potential sites for 
reintroduction.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing 
species from the Federal Lists of Endangered and Threatened Wildlife 
and Plants. ``Species'' is defined by the Act as including any species 
or subspecies of fish or wildlife or plants, and any distinct 
vertebrate population segment of fish or wildlife that interbreeds when 
mature (16 U.S.C. 1532(16)). Once the ``species'' is determined, we 
then evaluate whether that species may be endangered or threatened 
because of one or more of the five factors described in section 4(a)(1) 
of the Act. Those factors are: (1) Habitat modification, destruction, 
or curtailment; (2) overutilization of the species for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence. We 
must consider these same five factors in reclassifying or delisting a 
species. Listing, reclassifying, or delisting may be warranted based on 
any of the above threat factors, either singly or in combination.
    For species that are already listed as endangered or threatened, 
this analysis of threats is an evaluation of both the threats currently 
facing the species and the threats that are reasonably likely to affect 
the species in the foreseeable future following the delisting or 
downlisting.
    The following threats analysis examines the five factors currently 
affecting, or that are likely to affect, the Okaloosa darter within the 
foreseeable future. For the purposes of this analysis, we will first 
evaluate whether the currently listed species, the Okaloosa darter, 
should be considered endangered or threatened throughout its range. 
Then we will consider whether there are any portions of the species' 
range where it is in danger of extinction or likely to become 
endangered within the foreseeable future.

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

    The Okaloosa darter was listed under the Act in 1973, because of 
its extremely limited range and potential problems resulting from 
erosion, water impoundment, and competition with brown darters. The 
Okaloosa darter has been extirpated from about 9 percent of the 402 km 
(249.8 mi) of streams that

[[Page 18096]]

comprise its total historical range. This historic loss of range is 
most likely due to physical and chemical habitat degradation from 
sediment and pollutant loading and the urbanization of the City of 
Niceville coupled with historic impacts originating on what is now 
Eglin AFB. Recent surveys in a southern/western tributary of Toms 
Creek, however, have established the darter's presence in a stretch of 
stream previously thought to be uninhabited. At present, all but 5 km 
(3.1 mi), or 1.3 percent, of the current range is also currently within 
Eglin AFB.
Sedimentation and Erosion
    Sediment loading is perhaps the most intense and uniform factor 
continuing to threaten the Okaloosa darter. A report (Rainer et al. 
2005, pp. 3-13) identified the following primary sources of sediment to 
aquatic ecosystems on Eglin AFB: accelerated streamside erosion, borrow 
pits, developed areas, land test areas, silviculture, and roads. Of 
these, the stream crossings of unpaved roads and subsequent bank 
erosion probably have the greatest impact because of their distribution 
on Eglin AFB, relative permanence as base infrastructure, and long-term 
soil disturbance characteristics. The largest remaining source of 
sediment input to darter streams is the unpaved road network. As of 
2005, 87 percent (4,348 km or 2,701.7 mi) of Eglin's road network was 
unpaved.
    As of 2010, Eglin AFB had completed about 95 percent of the erosion 
control projects identified in darter watersheds, substantially 
reducing runoff and sedimentation within the road network (USAF 2006, 
pp. 3-5; Pizzolato 2010, pers. comm.). From 1995 to 2004, 317 borrow 
pits and non-point erosion sites (485 ac) were rehabilitated and 
maintained. Although most of the erosion control projects have already 
been completed, Eglin has a continuing objective of identifying and 
rehabilitating an additional 150 soil erosion sites beyond the 317 
sites that have already been restored. These soil erosion sites have 
the potential to impact endangered and threatened species like the 
listed Okaloosa darter. These remaining soil erosion sites pose a 
continuing threat to the darter and its habitat. For example, five road 
crossings in the Turkey Creek drainage have repeatedly exceeded State 
water quality standards for turbidity. Recent funding has been secured 
to replace or eliminate the remaining road-stream crossings identified 
as impairing waterways within the range of the Okaloosa darter on Eglin 
AFB. These projects are currently being designed or awaiting permits, 
and all are scheduled for construction in 2011.
    Of the 153 road crossings that previously existed in Okaloosa 
darter drainages, 57 have been eliminated: 28 in Boggy Bayou streams, 
and 29 in Rocky Bayou streams. Eglin AFB estimates that these and other 
restoration efforts have reduced soil loss from roughly 69,000 tons per 
year in darter watersheds in 1994, to approximately 2,500 tons per year 
in 2010 (Pizzolato 2010, pers. comm.).
    Borrow pits were a major source of sediment loading to darter 
streams cited in the 1998 darter recovery plan. At that time, 29 of 39 
borrow pits located within or immediately adjacent to Okaloosa darter 
drainages had been restored so that they no longer posed sedimentation 
threats. As of 2004, all of the remaining borrow pits within Okaloosa 
darter drainages have been restored and no longer pose sedimentation 
threats (Rainer et al. 2005, pp. 3-18).
    While sedimentation and erosion problems still exist on Eglin AFB, 
they have been significantly reduced through improvements such as 
bottomless culverts, bridges over streams, and bank restoration and 
revegetation. There are other areas where sedimentation remains a 
higher magnitude threat to the continued existence of the Okaloosa 
darter. Primarily in the downstream-most portion of the darter's range, 
urban development and construction activity pose a threat to the darter 
due to poor stormwater runoff control and ineffective pollution 
prevention measures that degrade habitat and may pose potential 
barriers to movement between basins. This threat is present primarily 
in the 5 km (3.1 mi) of historic habitat located outside of Eglin AFB. 
With improvement and reduction of sediment erosion on Eglin AFB (98.7 
percent of the darter's current range), we believe that we can continue 
to work with off-base partners in recovery efforts that will enable 
delisting of this fish.
Road Development Projects
    Additionally, road development projects present new potential 
threats that may negatively impact the Okaloosa darter. The Northwest 
Florida Transportation Corridor Authority has proposed a new, high-
speed, toll bypass road that crosses Eglin AFB, extending from U.S. 331 
in Walton County to SR 87 in Santa Rosa County. It includes the MBBA's 
Mid-Bay Bridge Connector Road, a new road from the northern terminus of 
the Mid-Bay Bridge to SR 85 north of Niceville. In addition, the 
Florida Department of Transportation is planning a capacity improvement 
project to expand SR 123 from two to four lanes across Toms and Turkey 
creeks. However, the roads would not prevent implementation of 
management actions for the Okaloosa darter in Eglin AFB's INRMP, which 
will continue to provide a benefit to the darter.
    Eglin AFB has granted the MBBA conceptual agreement for the Mid-Bay 
Bridge Connector Road, and construction of Phase I of the project has 
begun. Although the remaining phases of the project cross darter 
drainages, the agreement includes 19 stipulations that will minimize 
impacts to darter drainages. For example, the project will use 
environmentally-sensitive bridge construction techniques, and 
conservation measures that minimize erosion and ground disturbance at 
each stream crossing and that maintain stream channel stability. By 
designing the bridges to maintain natural stream geomorphology, and 
with the use of appropriate methods to stabilize stream banks and 
erosion control measures along the stream, we do not anticipate long-
term erosion and degradation of darter habitat.
    The project also includes specific stream restoration projects to 
improve currently degraded habitat conditions in Okaloosa darter basins 
including Mill Creek, Swift Creek, East Turkey Creek, Turkey Creek, and 
Toms Creek. Importantly, the potential secondary and cumulative effects 
of a new roadway, including threats to Okaloosa darter from new 
development, will be addressed through discussions with private 
property owners regarding easements and agreements to protect 
floodplain and riparian habitat and reduce threats along Okaloosa 
darter streams.
    We recently completed consultation under the Act on this project 
and found that the proposed Mid-Bay Bridge Connector Road is not likely 
to jeopardize the continued existence of the Okaloosa darter. Most 
direct and indirect effects will occur within the 122-meter (400-foot) 
study corridor and are considered temporary and reversible. Given the 
specific extensive conservation measures included in the project, we do 
not consider the Mid-Bay Bridge Connector Road to be a significant 
threat to Okaloosa darters. As plans progress for the other road 
projects, the applicants will need to consult with the Service under 
section 7 of the Act to avoid and minimize impacts to the Okaloosa 
darter and other federally protected species, and assure that the 
species' continued existence and recovery is not jeopardized.

[[Page 18097]]

Elgin AFB and Its Programs
    Eglin AFB is a military training facility and is divided into 37 
land test areas where weapons testing and training operations are 
conducted, 12 of which are wholly or partially within darter drainages 
(SAIC 2001, pp. 2 and 7). Eglin AFB maintains large portions of the 
test areas in an early stage of plant succession with few mature trees 
and varying degrees of soil disturbance as a result of maintenance or 
military missions. Since 1998, only one section 7 consultation with 
Eglin AFB (related to test area activities) has resulted in the 
issuance of an incidental take statement.
    There is a proposal to increase the military personnel and use at 
Eglin AFB through the 2005 Defense Base Realignment and Closure (BRAC). 
The BRAC action involves establishing the Joint Strike Fighter 
Integrated Training Center and relocating the Army 7th Special Forces 
Group (Airborne) to Eglin AFB, increasing the number of personnel 
present on base, the number of test ranges, and the frequency of test 
area activities. The Service has provided preliminary comments on the 
military's Notice of Intent to Prepare an Environmental Impact 
Statement under the National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) and completed a formal consultation for other species but 
not the Okaloosa darter. We do not anticipate any increase in threats 
to the Okaloosa darter from this action, as the new ranges have been 
moved outside of Okaloosa darter habitat and Eglin AFB has agreed to 
provide a 300-ft. buffer along all darter streams when conducting any 
troop maneuvers.
    While poorly designed silvicultural programs can result in 
accelerated soil erosion and stream sedimentation, Eglin AFB has 
designed its silviculture program within darter habitat to avoid and 
minimize impacts to the aquatic ecosystems such that the program is not 
likely to adversely affect the Okaloosa darter.
Pollution
    Pollution other than sedimentation poses a potential threat to 
darters in six stream segments. While no streams in the darter's range 
are designated by DEP as impaired, 6 of the 13 segments sampled using 
three biological indicators were considered potentially impaired and 
are on the ``3c planning list,'' which means that ``enough data and 
information are present to determine that one or more designated uses 
may not be attained according to the Planning List methodology.'' One 
stream site has been characterized as ``severely limited by pollutants 
from the landfill.''
    Using comparable aquatic insect sampling methods, the Service (Thom 
and Herod 2005, Table 4-1) found 12 out of the 42 sites sampled within 
the darter's range to be impaired. An impaired water body is one where 
the biological integrity of the system as determined through indicators 
has been compromised because of pollutants, indicating that Okaloosa 
darter habitat is degraded. Based on these data, it appears likely that 
the wastewater treatment sprayfields located near the headwaters of 
East Turkey Creek and Swift Creek are adversely affecting water 
quality. Although water quality issues associated with the Niceville 
landfill and sprayfield continue to threaten the darter, they are being 
examined in a research project.
Water Withdrawals
    Water withdrawals for human consumption in and around the range of 
the Okaloosa darter are presently served by wells that tap the Floridan 
Aquifer, which is declining substantially in the most populated areas 
near the coast. However, at this time, there is no evidence that 
pumping from the Floridan Aquifer has reduced flows in darter streams. 
The darter drainages are spring-fed from a shallow sand and gravel 
aquifer that is not used for human consumption. Additionally, the low 
permeability of the Pensacola Clay confining bed probably severely 
limits hydraulic connectivity between the two aquifers (Fisher et al. 
1994, p. 86). Therefore, we do not anticipate that local population 
growth would adversely affect water flows in the darter's drainages.
Climate Change
    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
warming of the climate system is unequivocal (IPCC 2007a, p. 30). 
Numerous long-term changes have been observed including changes in 
arctic temperatures and ice, and widespread changes in precipitation 
amounts, ocean salinity, wind patterns, and aspects of extreme weather 
including droughts, heavy precipitation, heat waves, and the intensity 
of tropical cyclones (IPCC 2007b, p. 7). While continued change is 
certain, the magnitude and rate of change is unknown in many cases.
    The currently occupied range of the darter is restricted to 
approximately 402 km (249.8 mi) of streams in Walton and Okaloosa 
Counties, Florida. While we acknowledge the general scientific 
consensus that global scale increases in temperatures have occurred, we 
do not have sufficient data to determine that climate change poses a 
significant threat to the Okaloosa darter. Streams within the Okaloosa 
darter's range are spring-fed, and thus many are thermally moderated. 
However, thermal mediation varies considerably among nearby Okaloosa 
darter streams (Jordan 2010, pers. comm.), and some streams that 
support Okaloosa darters may be affected by increases in air 
temperature. We lack the data to evaluate whether increased 
temperatures in some streams will adversely affect Okaloosa darters. 
The information currently available on the effects of climate change 
and the available climate change models do not make sufficiently 
accurate estimates of location and magnitude of effects at a scale 
small enough to apply to the range of the Okaloosa darter. At present, 
we have insufficient data to determine that climate changes observed to 
date have had any adverse impact on the Okaloosa darter or its habitat.
Summary of Factor A
    About 51,397 hectares (127,000 acres), or 457 square kilometers 
(176 square miles), of the darter's drainage basins (90 percent) are 
managed by Eglin AFB, while 485.6 hectares or 12,000 acres (10 percent) 
of the drainage basins are situated within the Niceville-Valparaiso 
urban complex. Urban runoff continues to degrade darter habitat in 1.3 
percent of the linear stream distance that occurs outside of Eglin AFB 
through pollution and sedimentation. Additionally, there is a continued 
threat of further development in the darter's drainages outside of 
Elgin AFB.
    The military mission or mandate of Eglin AFB, which holds 98.7 
percent of the darter's current range and 90 percent of the drainage 
basins for the darter, will lead to foreseeable actions that could 
impact the darter's range. Potential impacts resulting from a road 
development project within the darter's range have been minimized, and 
that project is not considered a significant threat to the species. 
However, the growing coastline human population in Florida that is 
pressing into the boundaries of Eglin AFB will have foreseeable needs 
that could cross Eglin AFB's boundaries and impact the darter's range.
    Stream sedimentation and erosion control problems still exist on 
Eglin AFB, and we will continue to cooperatively work with our partner 
to resolve these. Habitat restoration efforts completed on the base to 
date have reduced 95 percent of the sedimentation into streams occupied 
by the Okaloosa darter, nearly eliminating the largest threat to the 
species.

[[Page 18098]]

    At present, we do not have data to indicate that climate change 
poses a significant threat to the Okaloosa darter.
    Okaloosa darter populations are stable or increasing in the 
majority of the species' range. The current rangewide population is 
estimated at 802,668 darters with an estimated 625,279 mature 
individuals (Service 2007, Table 2). Therefore, we believe the 
rangewide threat of habitat destruction, modification, or fragmentation 
over this large area from sources like sedimentation and pollution has 
been reduced to a point where the Okaloosa darter no longer meets the 
definition of an endangered species. We find that the present or 
threatened destruction, modification, or curtailment of its habitat or 
range is not likely to place the Okaloosa darter in danger of 
extinction throughout all or a significant portion of its range. 
However, although the threats under this factor have been reduced, they 
have not been entirely eliminated. Accordingly we find that the 
Okaloosa darter meets the definition of a threatened species because it 
is likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.

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

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

Factor C. Disease or Predation

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

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The Act requires that any State, local, and private project outside 
of Eglin AFB that uses Federal funds or requires a Federal permit must 
undergo section 7 consultation to ensure that the species is not 
jeopardized. In addition, the State of Florida has listed the Okaloosa 
darter as an endangered species under its protected species statute 
since 1976. Recently, the FWC incorporated the IUCN Red List Criteria 
(http://www.iucnredlist.org) in its procedures for classifying species 
(Florida Administrative Code 68A-27.0012), but the FWC has not yet 
evaluated the Okaloosa darter using the new procedures (Knight 2010, 
pers. comm.). Our application of the Red List Criteria classifies the 
darter as ``near threatened'' (Service 2007, p. 43).
    In addition, land management on DOD lands is governed by the Sikes 
Act (16 U.S.C. 670 et seq.) and the Sikes Improvement Act, which 
provide for the conservation and rehabilitation of natural resources 
and require DOD to periodically prepare an INRMP in consultation with 
the Service and the applicable State wildlife agency. Because the 
Okaloosa darter's current range occurs almost exclusively on Eglin AFB, 
the species is afforded considerable protections from large-scale 
habitat disturbance. Its habitat is further conserved and 
rehabilitated, through fish and wildlife and land management actions, 
consistent with the use of the military installation, as required by 
the Sikes Act, as amended by the Sikes Act Improvement Act. Federal 
actions must also comply with the National Environmental Policy Act, 
the CWA, and applicable State laws. These laws also help with avoiding 
or minimizing impacts to the Okaloosa darter and its habitat.
    Department of Defense Instruction (DODI) 4715.3, Environmental 
Conservation Program, is the overarching instruction for DOD natural 
and cultural resources management, and is the primary agent for 
implementing policy (including the Sikes Act), assigning 
responsibility, and prescribing procedures for the integrated 
management of natural and cultural resources on DOD properties. In 
compliance with these programs, Eglin AFB has taken a proactive role in 
the recovery of the Okaloosa darter by managing its lands to provide 
for the recovery of the darter and assuring that the species' recovery 
is integrated with the military training purposes of the base.
    Air Force Policy Directive (AFPD) 32-70, Environmental Quality, 
establishes policy to responsibly manage natural and cultural resources 
on Air Force properties, clean up past environmental damage, meet 
current environmental standards, plan future activities to minimize 
impacts, and eliminate pollution from Air Force activities whenever 
possible. Under this Directive, an Air Force Environmental Quality 
Program was developed. This program includes the following activities: 
Cleanup, compliance, conservation, and pollution prevention. 
Additionally, this directive states that the Air Force will pursue 
adequate funding to meet environmental legal obligations. Compliance 
with this directive has resulted in funding and implementation of 
considerable erosion control measures and fish barrier removals, which 
have significantly reduced runoff and sedimentation in Okaloosa darter 
streams and expanded the range of the species.
    Air Force Instruction (AFI) 32-7064, Integrated Natural Resources 
Management, implements AFPD 32-70 and DODI 4715.3. This instruction 
provides details on how to manage natural resources on Air Force 
installations to comply with applicable Federal, State, and local laws 
and regulations. The current INRMP and Threatened and Endangered 
Species Component Plan for Eglin AFB identify management practices to 
benefit the Okaloosa darter. The purpose of the INRMP for Eglin AFB is 
to provide interdisciplinary strategic guidance for the management of 
the base's natural resources, while the primary objective of the Air 
Force Natural Resources Program is to ensure continued access to land 
and air space required to accomplish the Air Force mission while 
maintaining these resources in a healthy condition. The INRMP for Eglin 
AFB facilitates compliance with Federal,

[[Page 18099]]

State, and local environmental requirements. These requirements deal 
with analysis of: Potential environmental impacts, water and air 
quality, wetlands, endangered species, marine mammals, migratory birds, 
other wildlife, forest and fire management, and public access and 
recreation. The INRMP and Threatened and Endangered Species Component 
Plan also identify conservation objectives for the Okaloosa darter as 
described under Downlisting Criterion 1 under item (2) in the Recovery 
section above.
Summary of Factor D
    We estimate that 98.7 percent of the darter's current range is 
within the boundaries of Eglin AFB; the remaining 1.3 percent of the 
range is downstream of Eglin AFB. For this reason, almost all human 
activities that may affect the existing darter population are Federal 
actions, including actions implemented, funded, or approved by the DOD. 
The INRMP prepared for Eglin AFB under the Sikes Act and Sikes 
Improvement Act requires habitat improvements that will continue to 
benefit the darter. Federal actions must also comply with the National 
Environmental Policy Act, the CWA, and applicable State laws. These 
regulatory mechanisms will remain in place when the Okaloosa darter is 
downlisted to threatened. Therefore, the existing regulatory mechanisms 
are substantial, and they will be adequate to protect the darter and 
its habitat in the majority of its range now and within the foreseeable 
future. We do not have any data to suggest that this threat will 
increase in any portion of the darter's range now or within the 
foreseeable future.

Factor E. Other Natural or Manmade Factors Affecting The Species' 
Continued Existence

    Okaloosa darters were not adversely affected by the active 
hurricane and storm seasons of 2004 and 2005, which brought numerous 
severe storm events to the southern boundaries of Eglin AFB (Jordan and 
Jelks 2009, p. 9). Darter numbers declined slightly during the recent 
2007-2008 drought affecting much of Florida; however survey data from 
previous droughts suggest resilience to these events with elevated 
recruitment during wet years (Jordan and Jelks 2009, p. 2).
    Two natural factors are identified in the recovery plan as possibly 
affecting the Okaloosa darter: the brown darter as an introduced 
competitor species, and the beaver as an agent adversely modifying 
darter habitat.
Brown Darter
    In 1964, a potential competitor of the Okaloosa darter, the brown 
darter (Etheostoma edwini), was found in the lower reaches of Swift 
Creek. The brown darter is a widespread species in drainages that 
surround the streams containing the Okaloosa darter, but had not 
previously been documented in any Okaloosa darter drainages. Early 
indications were that the brown darter may have been introduced into 
Okaloosa darter drainages from releases from bait buckets by fishermen 
or by incidental stocking with game fish from fish hatcheries (Burkhead 
et al. 1992, pp. 23-30). Others thought that brown darters dispersed 
from Eagle Creek along the shoreline of Choctawhatchee Bay and were 
simply overlooked in early collections (Jelks 2010, pers. comm.). 
Recent genetics analyses of the brown darter shows high genetic 
structure, and little support for introductions from eastern Florida 
(Austin 2007, pers. comm.), supporting the theory that they were 
overlooked in early collections.
    Although annual monitoring (1995-2004) of Okaloosa and brown darter 
populations shows a weak negative correlation between the abundance of 
the two species, the relative abundance of Okaloosa darters at sites 
where both species occur has generally increased or remained constant 
in this timeframe, and the range of the brown darter has not expanded 
(Jordan and Jelks 2004, p. 3). Earlier comparisons of microhabitat use 
found little evidence of competitive displacement (Burkhead et al. 
1994, p. 60). Therefore, at this time, we do not believe the brown 
darter is an introduced species or that it poses a significant threat 
to the recovery of the Okaloosa darter because it has not been shown to 
impair Okaloosa darter populations.
Beavers
    Okaloosa darters do not appear to tolerate impounded conditions and 
are generally absent in the relatively still water upstream of manmade 
dams, beaver dams, culverts, and other instream obstructions that act 
like dams. Jordan and Jelks (2004, p. 29) observed the effects of a 
beaver dam and a culvert at two locations on Rogue Creek that supported 
Okaloosa darters before these structures were placed in the stream. 
Both structures had similar effects on darters and important darter 
habitat features, including increased water temperature, accumulation 
of flocculent substrate, loss of typical microhabitat features, and 
virtual elimination of darters in the impounded areas. However, Jordan 
and Jelks (2004, p. 29) also observed that darters returned to these 
locations within a year following removal of the beaver dam and the 
culvert, the former by Eglin AFB resource managers and the latter by a 
hurricane.
    Because beavers often alter areas in a manner contrary to human 
intentions for those areas, and also because beaver ponds displace 
Okaloosa darter habitat, resource managers, with the assistance of the 
U.S. Department of Agriculture's Wildlife Services, control beaver 
numbers in some areas on Eglin AFB (USAF 2007, pp. 1-6). Although a 
nuisance in the urban environment, beavers are a natural feature of the 
landscape in the range of the Okaloosa darter. It is possible that 
impacts from beavers may be more pronounced than they were historically 
given that the natural predators of beavers may be greatly reduced. 
Beaver dams are also problematic when they are constructed upstream of 
poorly designed river crossings and culverts because they result in 
more permanent impoundments.
    While the waters impounded behind a beaver dam do not support 
Okaloosa darters, darter densities in ``beaver meadows'' were among the 
highest observed in monitoring surveys. Beaver meadows occur in the 
vicinity of beaver ponds where the dam and pond induces the stream to 
assume a braided (multi-channel) form, sometimes in the pond itself 
following dam blowout or removal. Floodplain trees are killed by the 
year-round high water level maintained near the pond and by the beavers 
themselves, and herbaceous vegetation thrives in the resulting open 
canopy, which apparently creates favorable habitat conditions for the 
darter as aquatic macrophytes thrive under the open canopy and in 
higher nutrient substrates. We suspect that a beaver meadow supports as 
many or more darters than were displaced from the beaver pond itself.
    Beaver dams are not permanent structures and may be broken by the 
high flows associated with hurricanes and other major storm events. The 
organic matter that accumulates in a beaver pond is suddenly released 
when the dam blows out, which provides a pulse of nutrients in the 
otherwise nutrient-poor darter streams. The pond is gone immediately, 
of course, and over time the braided channel through the beaver meadow 
returns to a single channel form. This channel is eventually shaded by 
riparian trees and shrubs, and the concentrated patch of darter habitat 
that the meadow provided is also gone. Given the balance of the

[[Page 18100]]

effects beavers have on their habitats, we do not know at this time 
whether their numbers pose a threat to Okaloosa darters. However, even 
if they do pose localized impacts, we do not believe these to be 
significant to the Okaloosa darter rangewide.
Summary of Factor E
    Okaloosa darters appear not to be affected by hurricanes and seem 
to be resilient to droughts. While brown darters may not impact the 
Okaloosa darter and beavers may pose only localized impacts, there is 
no evidence indicating that these impacts are significantly affecting 
the species on a rangewide or population level. Therefore, we find that 
this factor is not likely to cause the Okaloosa darter to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. We do not have any data to suggest 
that this threat will increase in any portion of the darter's range now 
or within the foreseeable future.

Conclusion of the 5-Factor Analysis

    In developing this rule, we have carefully assessed the best 
scientific and commercial data available regarding the threats facing 
this species, as well as the ongoing conservation efforts.
    Under section 3 of the Act, a species is ``endangered'' if it is in 
danger of extinction throughout all or a significant portion of its 
range and is ``threatened'' if it is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range. For the purposes of this rule, the word ``range'' 
refers to the range in which the species currently exists, and the word 
``significant'' refers to the value of that portion of the range being 
considered to the conservation of the species. The ``foreseeable 
future'' is the period of time over which events or effects reasonably 
can or should be anticipated, or trends extrapolated.
    As identified above, only one of the five listing factors currently 
poses a known threat to the Okaloosa darter, namely, Factor A--the 
present or threatened destruction, modification, or curtailment of its 
habitat or range. Eglin AFB manages the vast majority of the Okaloosa 
darter's current range, 98.7 percent. We have seen substantial progress 
on Eglin AFB addressing threats to the darter's habitat under the 
base's INRMP and general ongoing habitat restoration. Resource 
stewardship on Eglin AFB is generally reducing the threat of habitat 
destruction and range reduction (for example, restoring erosive, near-
stream borrow pits). Eglin AFB is addressing the threat of 
sedimentation from unpaved roads and from areas adjacent to poorly 
designed and maintained paved roads. Similarly, restoration of Mill 
Creek on the Eglin Golf Course, which had been substantially altered by 
culverts and manmade impoundments, has been completed. As the smallest 
of the six darter watersheds, the darter population in Mill Creek is 
probably most vulnerable to extirpation. We anticipate that restoration 
at Mill Creek will secure a viable population in this system. Eglin has 
worked diligently to generally improve habitat quality within its 
boundaries. Outside of Eglin's borders, we have been working with the 
City of Niceville to improve their wastewater collection system and 
install more appropriate culverts at a number of road crossings. 
However, additional improvements are necessary before this threat of 
sedimentation and pollution is completely removed.
    Brown darters and habitat loss from beaver activity were identified 
as other natural and manmade factors affecting the continued existence 
of darters. After several years of monitoring and recent genetics work, 
it does not appear that the brown darter is either expanding its range 
or displacing Okaloosa darters in most sympatric areas. The overall 
effect of beaver activity on the darter is poorly understood. However, 
even if brown darters and habitat loss from beaver activity do pose 
localized threats, we do not believe these to be significant to the 
Okaloosa darter rangewide.
    The 1998 Recovery Plan for the Okaloosa darter identifies five 
downlisting criteria. We believe that the intent of all five of the 
downlisting criteria have been fulfilled; however, the delisting 
criteria have not been met at this time. Specifically, while 
significantly reduced, sedimentation and pollution, as well as 
development, remain a threat in portions of the darter's range.
    Based on the analysis above and given the substantial reduction in 
threats to its habitat, the Okaloosa darter does not currently meet the 
definition of endangered in that it is not ``in danger of extinction 
throughout all or a significant portion of its range.'' Instead, it 
meets the definition of threatened in that it is ``likely to become 
endangered in the foreseeable future throughout all or a significant 
portion of its range.'' Actions still needed for the Okaloosa darter to 
continue to recover (for example, actions to remove threats to the 
point that the species no longer meets the definition of threatened) 
include:
    (1) Cooperative agreements to protect and restore habitat, water 
quality, and water quantity for the Okaloosa darter outside of Eglin 
AFB to protect the species in the foreseeable future; and
    (2) Improved and maintained water quality and riparian habitat on 
Eglin AFB, minimizing erosion at clay pits, road crossings, and steep 
slopes to the extent that resembles historic, predisturbance 
conditions.

Significant Portion of the Range

    Having determined that the Okaloosa darter is no longer endangered 
throughout its range as a consequence of the threats evaluated under 
the five factors in the Act, we must next consider whether there are 
any significant portions of its range where the species is currently 
endangered. A portion of a species' range is significant if it is part 
of the current range of the species and is important to the 
conservation of the species because it contributes meaningfully to the 
representation, resiliency, or redundancy of the species. The 
contribution must be at a level such that its loss would result in a 
decrease in the ability to conserve the species.
    The first step in determining whether a species is endangered in a 
significant portion of its range is to identify any portions of the 
range that warrant further consideration. The range of a species can 
theoretically be divided into portions in an infinite number of ways. 
However, there is no purpose to analyzing portions of the range that 
are not reasonably likely to be significant and endangered. To identify 
only those portions that warrant further consideration, we determine 
whether there is substantial information indicating that: (1) The 
portions may be significant, and (2) the species may be in danger of 
extinction there. In practice, a key part of this analysis is whether 
the threats are geographically concentrated in some way. If the threats 
to the species are essentially uniform throughout its range, no portion 
is likely to warrant further consideration. Moreover, if any 
concentration of threats applies only to portions of the range that are 
not significant to the conservation of the species, such portions will 
not warrant further consideration.
    If we identify any portions that warrant further consideration, we 
then determine whether in fact the species is endangered in any 
significant portion of its range. Depending on the biology of the 
species, its range, and the threats it faces, it may be more efficient 
for the Service to address the significance question first, and in 
others the status question first. Thus, if the Service determines that 
a portion of the range is

[[Page 18101]]

not significant, the Service need not determine whether the species is 
endangered there. Conversely, if the Service determines that the 
species is not endangered in a portion of its range, the Service need 
not determine if that portion is significant.
    The threats identified above are fairly uniform throughout the 
range of the Okaloosa darter. In a small percentage of the range that 
occurs outside the Eglin AFB (10 percent of the drainage area, and 1.3 
percent of the instream habitat), the threat of urbanization is more 
pronounced. However, this is a small portion of the total range of the 
species, is similar to the rest of the species' habitat, and does not 
appear in other ways to have a significant impact on the overall status 
of the species. Therefore, we have determined that there are no 
portions of the range that qualify as a significant portion of the 
range in which the darter is in danger of extinction.
    In summary, the threats to Okaloosa darter habitat have been 
significantly reduced as a result of Eglin AFB implementing habitat 
improvement measures on the AFB's lands. Okaloosa darter populations 
remain stable throughout most of their range, and have even expanded 
their range in some areas. Based on the darter's improved status 
throughout its range and the reduction in threats, we have determined 
that none of the threats result in the darter being in danger of 
extinction throughout all or a significant portion of its range. 
However, certain threats to the darter and its habitat remain. We have 
determined that, based on the status of the species and these remaining 
threats, the Okaloosa darter meets the definition of threatened in that 
it is likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. Therefore, we are 
reclassifying the darter's status from endangered to threatened under 
the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing increases public awareness of 
threats to the Okaloosa darter, and promotes conservation actions by 
Federal, State, and local agencies; private organizations; and 
individuals. The Act provides for possible land acquisition and 
cooperation with the State, and provides for recovery planning and 
implementation. The protection required of Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to the Okaloosa darter. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. If a Federal action may affect the 
Okaloosa darter or its habitat, the responsible Federal agency must 
consult with the Service to ensure that any action authorized, funded, 
or carried out by such agency is not likely to jeopardize the continued 
existence of the Okaloosa darter. Federal agency actions that may 
require consultation include: Eglin AFB mission activities, new 
construction, culvert replacements, stream restoration, sediment 
control projects, vegetation control, and right-of-way permitting for 
pipelines and cables; U.S. Army Corps of Engineers involvement in 
projects such as dredge-and-fill permits for roads, bridges, and 
culverts; and Federal Highway Administration road projects.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. These prohibitions, codified at 50 CFR 17.21 and 
50 CFR 17.31, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harm, harass, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
is also illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken in violation of the Act. Certain 
exceptions apply to Service agents and agents of State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
part 13 and at 50 CFR 17.32 for threatened wildlife species. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and for incidental take in the 
course of otherwise lawful activities. For threatened species, permits 
are also available for zoological exhibition, educational purposes, or 
special purposes consistent with the purposes of the Act.
    Because the Okaloosa darter's extant range occurs almost 
exclusively on Eglin AFB, the species is afforded considerable 
protections from large-scale habitat disturbance. Those protections 
have already been discussed under Factor D. above, and are added here 
by reference.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act and applicable regulations should be 
directed to Don Imm, Field Supervisor, Panama City Field Office (see 
FOR FURTHER INFORMATION CONTACT). Requests for copies of the 
regulations regarding listed species and inquiries about prohibitions 
and permits may be addressed to the U.S. Fish and Wildlife Service, 
Ecological Services Division, 1875 Century Boulevard, Suite 200, 
Atlanta, GA 30345; telephone (404) 679-7313; facsimile (404) 679-7081.

Special Rule

    The information presented above generally applies to threatened 
species of fish and wildlife. However, the Service has the discretion 
under section 4(d) of the Act to issue special regulations for a 
threatened species that are necessary and advisable for the 
conservation of the species. Threatened species implementing 
regulations at 50 CFR 17.31 incorporate the prohibitions of section 9 
of the Act for endangered species, except when a ``special rule'' is 
promulgated under section 4(d) of the Act for a particular threatened 
species. A special rule for a particular threatened species defines the 
specific take prohibitions and exceptions that apply for that species 
rather than incorporating all of the prohibitions of section 9 of the 
Act. The prohibitions under section 9 of the Act currently make it 
illegal to import, export, take, possess, deliver, receive, carry, 
transport, ship in interstate commerce, or sell or offer for sale in 
interstate or foreign commerce species listed under the Act. Take, as 
defined in section 3 of the Act, means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. Threatened species that have special rules under 
section 4(d) of the Act are listed in our regulations at 50 CFR 17.40 
through 17.48.
    Because we originally listed the Okaloosa darter as endangered, we 
did not promulgate a special rule. However, now that we are 
reclassifying the darter to threatened status, a special rule is 
appropriate to provide for the continued conservation of the species. 
Therefore, a special rule is included as part of this reclassification 
from endangered to threatened status.
    Although the range of the species is small, it is almost entirely 
(98.7 percent) on Eglin AFB Federal lands. Darter drainages comprise 24 
percent of Eglin

[[Page 18102]]

AFB, subjecting almost all actions undertaken on 24 percent of the base 
to the interagency cooperation requirements of section 7 of the Act, 
including habitat management and restoration specifically targeted at 
darter conservation and as required by the Sikes Act and Sikes 
Improvement Act through the Eglin INRMP. This special rule:
    (1) Recognizes the positive recovery efforts and accomplishments of 
Eglin AFB and the DOD in recovering the Okaloosa darter to the extent 
that the darter no longer meets the definition of endangered;
    (2) Provides increased regulatory and mission flexibility for Eglin 
AFB;
    (3) Helps streamline or eliminate review and permitting 
requirements for habitat management and restoration activities, thus 
providing a net benefit to the Okaloosa darter; and
    (4) Enables the Service and Eglin AFB to better target limited 
resources to other, more vulnerable areas or species.
    Therefore, under section 4(d) of the Act, we determine, through 
this special rule, that it is necessary and advisable to provide for 
the conservation of the Okaloosa darter by allowing the take in 
accordance with applicable Federal, State, and local laws, during the 
following activities on Eglin AFB that are consistent with a Service-
approved INRMP and the Threatened and Endangered Species Component 
Plan:
    (1) Prescribed fire for land management to promote a healthy 
ecosystem;
    (2) Instream habitat restoration;
    (3) Unpaved range road stabilization;
    (4) Removal or replacement of culverts for the purpose of road 
decommissioning, improving fish passage, or enhancing stream habitat; 
and
    (5) Scientific research and monitoring activities consistent with 
an approved Okaloosa darter recovery plan, or otherwise approved by the 
Service, both on and off of Eglin AFB.
    All other activities resulting in take of Okaloosa darter remain 
prohibited.
    This special rule provides for the continued conservation of 
Okaloosa darter by reducing the regulatory burden under the Act, and 
thereby encouraging further recovery efforts on DOD lands. Minor 
adverse impacts to the Okaloosa darter that are consistent with 
provisions of this final 4(d) special rule will not appreciably 
diminish the likelihood of recovery of the Okaloosa darter.

Effects of This Rule

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

Required Determinations

Section 7 Consultation

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

National Environmental Policy Act

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

References Cited

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

Author

    The primary author of this document is Karen Herrington of the 
Panama City Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    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; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.


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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 18103]]



 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population where                                 Critical     Special
                                                            Historic range        endangered or         Status     When listed    habitat       rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes               ....................  ....................  ...................  .............  ...........  ...........  ...........
 
                                                                      * * * * * * *
Darter, Okaloosa.................  Etheostoma okaloosae  U.S.A. (FL).........  Entire.............  T                   6, 787           NA    17.44(bb)
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.44 by adding a paragraph (bb) to read as follows:


Sec.  17.44  Special rules--fishes.

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

    Dated: March 21, 2011.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-7668 Filed 3-31-11; 8:45 am]
BILLING CODE 4310-55-P