[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Rules and Regulations]
[Pages 48722-48741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20018]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0027; MO 92210-0-0008 B2]
RIN 1018-AV85


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Cumberland Darter, Rush Darter, Yellowcheek Darter, Chucky 
Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status for the Cumberland darter (Etheostoma susanae), rush 
darter (Etheostoma phytophilum), yellowcheek darter (Etheostoma 
moorei), chucky madtom (Noturus crypticus), and laurel dace (Chrosomus 
saylori) under the Endangered Species Act of 1973, as amended (Act). 
This final rule implements the Federal protections provided by the Act 
for these species throughout their ranges, including Cumberland darter 
in Kentucky and Tennessee, rush darter in Alabama, yellowcheek darter 
in Arkansas, and chucky madtom and laurel dace in Tennessee. We intend 
to propose critical habitat in an upcoming rulemaking, which is 
expected within the next few months.

DATES: This rule becomes effective September 8, 2011.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2010-0027. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, will be

[[Page 48723]]

available for public inspection, by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Tennessee Ecological Services 
Field Office, 446 Neal Street, Cookeville, TN 38501; telephone 931-528-
6481; facsimile 931-528-7075.

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

SUPPLEMENTARY INFORMATION:

Background

    This document consists of a final rule to list the Cumberland 
darter (Etheostoma susanae), rush darter (Etheostoma phytophilum), 
yellowcheek darter (Etheostoma moorei), chucky madtom (Noturus 
crypticus), and laurel dace (Chrosomus saylori) as endangered under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act). The Act requires that we identify species of wildlife and plants 
that are endangered or threatened, based on the best available 
scientific and commercial information. As defined in section 3 of the 
Act, an endangered species is any species which is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species is any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.
    Through the Federal rulemaking process, we add species that meet 
these definitions to the List of Endangered and Threatened Wildlife at 
50 CFR 17.11 or the List of Endangered and Threatened Plants at 50 CFR 
17.12. As part of this program, we maintain a list of species that we 
regard as candidates for listing. We call this list the Candidate 
Notice of Review (CNOR). A candidate species is one for which we have 
on file sufficient information on biological vulnerability and threats 
to support a proposal to list as endangered or threatened, but for 
which preparation and publication of a proposal is precluded by higher 
priority listing actions. We may identify a species as a candidate for 
listing based on an evaluation of its status that we conducted on our 
own initiative, or as a result of making a finding on a petition to 
list a species that listing is warranted but precluded by other higher 
priority listing action. Table 1 includes the citation information for 
the CNORs mentioned in the following paragraphs, which discuss the 
previous candidate status of each of the five species being listed as 
endangered in this rule.

 Table 1--Federal Register Citation Information for Certain Candidate Notices of Review Issued by the U.S. Fish
                                         and Wildlife Service Since 1985
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                                           Federal Register  volume and    Date of publication  in the  Federal
                   Year                            page  number                          Register
----------------------------------------------------------------------------------------------------------------
1985.....................................  50 FR 37958.................  September 18, 1985.
1989.....................................  54 FR 554...................  January 6, 1989.
1991.....................................  56 FR 58804.................  November 21, 1991.
1994.....................................  59 FR 58982.................  November 15, 1994.
1996.....................................  61 FR 7596..................  February 28, 1996.
1999.....................................  64 FR 57533.................  October 25, 1999.
2001.....................................  66 FR 54807.................  October 30, 2001.
2002.....................................  67 FR 40657.................  June 13, 2002.
2004.....................................  69 FR 24875.................  May 4, 2004.
2005.....................................  70 FR 24869.................  May 11, 2005.
2006.....................................  71 FR 53755.................  September 12, 2006.
2007.....................................  72 FR 69034.................  December 6, 2007.
2008.....................................  73 FR 75176.................  December 10, 2008.
2009.....................................  74 FR 57804.................  November 9, 2009.
2010.....................................  75 FR 69222.................  November 10, 2010.
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Previous Federal Action

Cumberland Darter
    The Cumberland darter was first identified as a candidate for 
listing in the 1985 CNOR. It was assigned a Category 2 status, which 
was given to those species for which the Service possessed information 
indicating that proposing to list as endangered or threatened was 
possibly appropriate, but for which conclusive data on biological 
vulnerability and threat was not currently available to support 
proposed rules. The Cumberland darter retained the Category 2 status in 
the 1989, 1991, and 1994 CNORs.
    Assigning categories to candidate species was discontinued in 1996, 
and only species for which the Service had sufficient information on 
biological vulnerability and threats to support issuance of a proposed 
rule were regarded as candidate species. Candidate species were also 
assigned listing priority numbers based on immediacy and the magnitude 
of threat, as well as their taxonomic status. In the 1999, 2001, 2002, 
and 2004 CNORs, the Cumberland darter was identified as a

[[Page 48724]]

listing priority 6 candidate species. We published a petition finding 
for Cumberland darter in the 2005 CNOR in response to a petition 
received on May 11, 2004, stating the darter would retain a listing 
priority of 6.
    In the 2006 CNOR, we changed the listing priority number for 
Cumberland darter from 6 to 5, because it was formally described as a 
distinct species. Based on new molecular evidence, the subspecies 
Etheostoma nigrum susanae was elevated to specific status, Etheostoma 
susanae. In the 2007, 2008, 2009, and 2010 CNORs, the Cumberland darter 
retained a listing priority of 5. On June 24, 2010 (75 FR 36035) we 
published a proposed rule to list the Cumberland darter as endangered.
Rush Darter
    We first identified the rush darter as a candidate for listing in 
the 2002 CNOR. The rush darter was assigned a listing priority number 
of 5. In the 2004 CNOR, the rush darter retained a listing priority 
number of 5. We published a petition finding for rush darter in the 
2005 CNOR in response to a petition received on May 11, 2004, stating 
the darter would retain a listing priority of 5.
    In 2006, we changed the listing priority number of the rush darter 
from 5 to 2 based on the imminent threat of water quality deterioration 
(i.e., increased sedimentation due to urbanization, road maintenance, 
and silviculture practices). In the 2007, 2008, 2009, and 2010 CNORs, 
the rush darter retained a listing priority of 2. We proposed to list 
the rush darter as endangered on June 24, 2010 (75 FR 36035).
Yellowcheek Darter
    We first identified the yellowcheek darter as a candidate for 
listing in the 2001 CNOR with a listing priority of 2. The yellowcheek 
darter retained a listing priority number of 2 in the 2002 and 2004 
CNORs. We published a petition finding for yellowcheek darter in the 
2005 CNOR in response to a petition received on May 11, 2004, stating 
the darter would retain a listing priority of 2.
    In the 2006, 2007, 2008, 2009, and 2010 CNORs, the yellowcheek 
darter retained a listing priority of 2. The yellowcheek darter is 
covered by a 2007 programmatic Candidate Conservation Agreement with 
Assurances (71 FR 53129) that covers the entire range of the species. 
We proposed to list the yellowcheek darter as endangered on June 24, 
2010 (75 FR 36035).
Chucky Madtom
    We first identified the chucky madtom as a candidate for listing in 
the 1994 CNOR with a Category 2 status. In the 2002 and 2004 CNORs, the 
chucky madtom was identified as a listing priority 2 candidate species. 
We published a petition finding for chucky madtom in the 2005 CNOR in 
response to a petition received on May 11, 2004, stating the madtom 
would retain a listing priority of 2. In the 2006, 2007, 2008, 2009, 
and 2010 CNORs, the chucky madtom retained a listing priority of 2.
    In 1994, the chucky madtom was first added to the candidate list as 
Noturus sp. Subsequently, and based on morphological and molecular 
evidence, the chucky madtom was formally described as a distinct 
species, Noturus crypticus (Burr et al. 2005). We included this new 
information in the 2006 CNOR. We proposed to list the chucky madtom as 
endangered on June 24, 2010 (75 FR 36035).
Laurel Dace
    We first identified the laurel dace as a new candidate for listing 
in the 2007 CNOR. New candidates are those taxa for which we have 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other higher priority listing 
activities.
    In the 2007 CNOR, we assigned the laurel dace a listing priority of 
5. The laurel dace retained a listing priority of 5 in the 2008, 2009, 
and 2010 CNORs. We proposed to list the laurel dace as endangered on 
June 24, 2010 (75 FR 36035).

Species Information

Cumberland Darter
    The Cumberland darter (Etheostoma (Boleosoma) susanae (Jordan and 
Swain)) is a medium-sized member of the fish tribe Etheostomatini 
(family Percidae) that reaches over 5.5 centimeters (cm) (2 inches 
(in)) standard length (SL) (length from tip of snout to start of the 
caudal peduncle (slender region extending from behind the anal fin to 
the base of the caudal fin)) (Etnier and Starnes 1993, p. 512). The 
species has a straw-yellow background body color with brown markings 
that form six evenly spaced dorsal (back) saddles and a series of X-, 
C-, or W-shaped markings on its sides (Etnier and Starnes 1993, p. 
510). During spawning season, the overall body color of breeding males 
darkens, and the side markings become obscure or appear as a series of 
blotches (Etnier and Starnes 1993, p. 510).
    The Cumberland darter was first described as Boleosoma susanae by 
Jordan and Swain (1883, pp. 249-250) from tributaries of the Clear Fork 
of the Cumberland River, Kentucky. Subsequent studies by Kuhne (1939, 
p. 92) and Cole (1967, p. 29) formerly recognized the taxon as a 
subspecies (Etheostoma nigrum susanae) of E. n. nigrum (Johnny darter). 
Starnes and Starnes (1979, p. 427) clarified the subspecific status of 
the Cumberland darter, differentiating it from the Johnny darter by 
several diagnostic characteristics. Strange (1998, p. 101) elevated E. 
n. susanae to full species status based on analyses of mitochondrial 
DNA for E. n. susanae and E. n. nigrum.
    The Cumberland darter inhabits pools or shallow runs of low- to 
moderate-gradient sections of streams with stable sand, silt, or sand-
covered bedrock substrates (O'Bara 1988, pp. 10-11; O'Bara 1991, p. 10; 
Thomas 2007, p. 4). Thomas (2007, p. 4) did not encounter the species 
in high-gradient sections of streams or areas dominated by cobble or 
boulder substrates. Thomas (2007, p. 4) reported that streams inhabited 
by Cumberland darters were second to fourth order, with widths ranging 
from 4 to 9 meters (m) (11 to 30 feet (ft)) and depths ranging from 20 
to 76 cm (8 to 30 in).
    Little is known regarding the reproductive habits of the Cumberland 
darter. Thomas (2007, p. 4) reported the collection of males in 
breeding condition in April and May, with water temperatures ranging 
from 15 to 18 degrees Celsius ([deg]C) (59 to 64 degrees Fahrenheit 
([deg]F)). Extensive searches by Thomas (2007, p. 4) produced no 
evidence of nests or eggs at these sites. Species commonly associated 
with the Cumberland darter during surveys by Thomas (2007, pp. 4-5) 
were creek chub (Semotilus atromaculatus), northern hogsucker 
(Hypentelium nigricans), stripetail darter (E. kennicotti), and 
Cumberland arrow darter (E. sagitta sagitta). Feeding habits are 
unknown but are likely similar to that of the closely related species, 
the Johnny darter (E. nigrum). Johnny darters are sight feeders, with 
prey items consisting of midge larvae, mayfly nymphs, caddisfly larvae, 
and microcrustaceans (Etnier and Starnes 1993, p. 511). Thomas (2007, 
p. 5) collected individuals of the Federally threatened blackside dace 
(Chrosomus cumberlandensis), from three streams that also supported 
Cumberland darters.
    The Cumberland darter is endemic to the upper Cumberland River 
system

[[Page 48725]]

above Cumberland Falls in Kentucky and Tennessee (O'Bara 1988, p. 1; 
O'Bara 1991, p. 9; Etnier and Starnes 1993, p. 511). The earliest known 
collections of the species were made by Jordan and Swain (1883, pp. 
249-250), who recorded it as abundant in tributaries of Clear Fork of 
the Cumberland River, Kentucky. The species was later reported from Gum 
Fork, Scott County, Tennessee, by Shoup and Peyton (1940, p. 11), and 
seven additional tributaries of the Cumberland River by Burr and Warren 
(1986, p. 310). More exhaustive surveys by O'Bara (1988, p. 6; 1991, 
pp. 9-10) and Laudermilk and Cicerello (1998; pp. 83-233, 303-408) 
determined that the Cumberland darter was restricted to short reaches 
of 20 small streams (23 sites) in the upper Cumberland River system in 
Whitley and McCreary Counties, Kentucky, and Campbell and Scott 
Counties, Tennessee. These studies suggested the extirpation of the 
species from Little Wolf Creek in Whitley County, Kentucky, and Gum 
Fork in Scott County, Tennessee. Preliminary reports of disjunct 
populations in the Poor Fork Cumberland River and Martins Fork in 
Letcher and Harlan Counties, Kentucky (Starnes and Starnes 1979, p. 
427; O'Bara 1988, p. 6; O'Bara 1991, pp. 9-10), were evaluated 
genetically and determined to be the Johnny darter (Strange 1998, p. 
101).
    Thomas (2007, p. 3) provided the most recent information on status 
and distribution of the species through completion of a range-wide 
status assessment in the upper Cumberland River drainage in Kentucky. 
Between June 2005 and April 2007, a total of 47 sites were sampled 
qualitatively in the upper Cumberland River drainage. All Kentucky 
sites with historic records were surveyed (20 sites), as well as 27 
others having potentially suitable habitat. Surveys by Thomas (2007, p. 
3) produced a total of 51 specimens from 13 localities (12 streams). 
Only one of the localities represented a new occurrence record for the 
species.
    In 2008, the Kentucky Department of Fish and Wildlife Resources 
(KDFWR) initiated a propagation and reintroduction project for the 
Cumberland darter in the upper Cumberland River drainage (Thomas et al. 
2010, p. 107). Utilizing State Wildlife Grant funds from the Service, 
KDFWR worked cooperatively with Conservation Fisheries, Inc. (CFI) of 
Knoxville, Tennessee, to develop captive propagation protocols for the 
species and to produce juvenile Cumberland darters that could be 
reintroduced within the species' historic range. Cogur Fork, a 
tributary to Indian Creek in McCreary County, Kentucky, was chosen by 
KDFWR as a suitable reintroduction site. Cumberland darters were 
released into Cogur Fork in August 2009 and September 2010. Surveys in 
November 2010 resulted in recaptures of individuals released in 2009 
and 2010, as well as captures of four individuals without tags 
(possibly native individuals) (Thomas pers. comm. 2010). Based on these 
results, it appears that reintroduction efforts have been effective, 
with Cumberland darters persisting within Cogur Fork since 2009. 
Furthermore, captures of untagged individuals in 2009 and 2010 suggest 
that Cogur Fork also supports a small, native population of the 
species.
    Currently, the Cumberland darter is known from 15 localities in a 
total of 13 streams in Kentucky (McCreary and Whitley Counties) and 
Tennessee (Campbell and Scott Counties). All 15 extant occurrences of 
the Cumberland darter are restricted to short stream reaches, with the 
majority believed to be restricted to less than 1.6 kilometers (km) (1 
mile (mi)) of stream (O'Bara 1991, pp. 9-10; Thomas 2007, p. 3). These 
occurrences are thought to form six population clusters (Bunches Creek, 
Indian Creek, Marsh Creek, Jellico Creek, Clear Fork, and Youngs 
Creek), which are geographically separated from one another by an 
average distance of 30.5 stream km (19 stream mi) (O'Bara 1988, p. 12; 
O'Bara 1991, p. 10; Thomas 2007, p. 3). Based on collection efforts by 
O'Bara (1991, pp. 9-10), Laudermilk and Cicerello (1998; pp. 83-233, 
303-408), and Thomas (2007, p. 3), the species appears to be extirpated 
from 11 historical collection sites and a total of 9 streams: 
Cumberland River mainstem, near the mouth of Bunches Creek and 
Cumberland Falls (Whitley County); Sanders Creek (Whitley County); 
Brier Creek (Whitley County); Kilburn Fork of Indian Creek (McCreary 
County); Bridge Fork (McCreary County); Marsh Creek, near mouth of Big 
Branch and Caddell Branch (McCreary County); Cal Creek (McCreary 
County); Little Wolf Creek (Whitley County); and Gum Fork (Scott 
County). No population estimates or status trends are available for the 
Cumberland darter; however, survey results by Thomas (2007, p. 3) 
suggest that the species is uncommon or occurs in low densities across 
its range (Thomas 2007, p. 3).
    The Cumberland darter is ranked by the Kentucky State Nature 
Preserves Commission (KSNPC) (2009, p. 38) and the Tennessee Department 
of Environment and Conservation (TDEC) (2009, p. 53) as a G1G2S1 
species: critically imperiled or imperiled globally and critically 
imperiled in Kentucky and Tennessee. The KDFWR State Wildlife Action 
Plan identified the Cumberland darter as a species of Greatest 
Conservation Need (GCN) and identified several top conservation actions 
for it and other species in its Aquatic Guild (Upland Headwater Streams 
in Pools), including: Acquisition or conservation easements for 
critical habitat, development of financial incentives to protect 
riparian (land adjacent to stream channel) corridors, development and 
implementation of best management practices, and restoration of 
degraded habitats through various State and Federal programs (KDFWR 
2005, p. 2.2.2). The Cumberland darter is designated as a Tier 1 GCN 
species in the Tennessee Comprehensive Wildlife Conservation Strategy 
(CWCS) (TWRA 2005, pp. 44, 49).
Rush Darter
    The rush darter (Etheostoma phytophilum) is a medium-sized darter 
in the family Percidae, tribe Etheostomatini, and subgenus Fuscatelum. 
The species reaches an average size of 5 cm (2 in) SL (Bart and Taylor 
1999, p. 28; Johnston and Kleiner 2001, p. 3). The rush darter was 
described by Bart and Taylor in 1999 (pp. 27-33), and is closely 
related to the goldstripe darter (E. parvipinne), a drab-colored 
species with a thin golden stripe along the lateral line (canal along 
the side of a fish with sensory capabilities) that is surrounded by 
heavily mottled or stippled sides (Shaw 1996, p. 85). However, the 
distinct golden stripe characteristic of goldstripe darters is not well 
developed in rush darters (Bart and Taylor 1999, p. 29). Also, the 
brown pigment on the sides of the rush darter is usually not as intense 
as in the goldstripe darter. Other characteristics of the rush darter 
are described in Bart and Taylor (1999, p. 28).
    Rush darters have been collected from various habitats (Stiles and 
Mills 2008, pp. 1-4; Bart 2002, p. 1; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 1999, p. 32), 
including root masses of emergent vegetation along the margins of 
spring-fed streams in very shallow, clear, cool, and flowing water; and 
from both small clumps and dense stands of bur reed (Sparganium sp.), 
coontail (Ceratophyllum sp.), watercress (Nasturtium officinale), and 
rush (Juncus sp.) in streams with substrates of silt, sand, sand and 
silt, muck and sand or some gravel with sand, and bedrock. Rush darters 
appear to prefer springs and spring-fed reaches of relatively low-
gradient small streams,

[[Page 48726]]

which are generally influenced by springs (Stiles and Mills 2008, pp. 
1-4; Fluker et al. 2007, p. 1; Bart 2002, p. 1; Johnston and Kleiner 
2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; Bart and Taylor 
1999, p. 32). Rush darters have also been collected in wetland pools 
(Stiles and Mills 2008; pp. 2-3). Water depth at collection sites 
ranged from 3.0 cm to 0.5 m (0.1 ft to 1.6 ft), with moderate water 
velocity in riffles and no flow or low flow in pools. Rush darters have 
not been found in higher gradient streams with bedrock substrates and 
sparse vegetation (Stiles and Mills 2008, pp. 1-4; Bart 2002, p. 1; 
Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; 
Bart and Taylor 1999, p. 32).
    Stiles and Mills (2008, p. 2) found gravid rush darter females in 
February and fry (newly hatched larval fish) in late April from a 
wetland pool in the Mill Creek watershed (Winston County, Alabama). 
These pools act as nursery areas for the fry (Stiles and Mills 2008, p. 
5). While little is known specifically about the life history of the 
rush darter, this information is available for the goldstripe darter, a 
related species in the Etheostoma genus. Spawning of the goldstripe 
darter in Alabama occurs from mid-March through June (Mettee et al. 
1996, p. 655). Preferred food items for the goldstripe darter include 
midge larvae, mayfly nymphs, blackfly larvae, beetles, and 
microcrustaceans (Mettee et al. 1996, p. 655). The lifespan of the 
goldstripe darter is estimated to be 2 to 3 years.
    The rush darter currently has a restricted distribution (Johnston 
and Kleiner 2001, p. 1). All rush darter populations are located above 
the Fall Line (the inland boundary of the Coastal Plain physiographic 
region) and in other ``highland regions'' where topography and 
elevation changes are observed presenting a barrier for fish movement 
(Boshung and Mayden 2004, p. 18) in the Black Warrior River drainage in 
portions of the Appalachian Plateau and Valley and Ridge physiographic 
provinces of Alabama (Boshung and Mayden 2004, pp. 16-17; Warren et al. 
2000, pp. 9, 10, 24). The closely related goldstripe darter in Alabama 
occurs essentially below the Fall Line in all major systems except the 
Coosa system (Boshung and Mayden 2004, p. 550). Reports of goldstripe 
darters from the 1960s and 1970s in Winston and Jefferson Counties, 
Alabama (Caldwell 1965, pp. 13-14; Barclay 1971, p. 38; Dycus and 
Howell 1974, pp. 21-24; Mettee et al. 1989, pp. 13, 61, 64), which are 
above the Fall Line, were made prior to the description of the rush 
darter, but are now considered to be rush darters (Kuhajda pers. comm. 
2008).
    Historically, rush darters have been found in three distinct 
watersheds in Alabama: Doe Branch, Wildcat Branch, and Mill Creek of 
the Clear Creek drainage in Winston County; an unnamed spring run of 
Beaver Creek and Penny Springs of the Turkey Creek drainage in 
Jefferson County; and Cove Spring (Little Cove Creek system) and 
Bristow Creek of the Locust Fork drainage in Etowah County. Fluker et 
al. (2007, p. 10) suggests that the unique topographic and geologic 
influences in the three distinct population groups likely produced 
different selective pressures, genetic isolation, genetic drift, and 
divergence during the species' evolution.
    Currently, the three rush darter populations occur in the same 
watersheds but in a more limited distribution. One population is 
located in Wildcat Branch and Mill Creek in the Clear Creek drainage in 
Winston County (Johnston and Kleiner 2001, p. 4; Stiles and Mills 2008, 
pp. 1-3); the second is located in an unnamed spring run to Beaver 
Creek, portions of Beaver Creek, and an unnamed tributary to Turkey 
Creek in the Turkey Creek drainage in Jefferson County (Stiles and 
Blanchard 2001, p. 2; Drennen pers. obsv. 2006-2010; Kuhajda pers. 
comm. 2009); and the third is in the Little Cove Creek drainage (Bart 
and Taylor 1999, p. 28; Bart 2002, p. 7; Kuhajda pers. comm. 2008-2009; 
Spadgenski pers. comm. 2008-2009).
    Rush darter populations are separated from each other 
geographically, and individual rush darters are only sporadically 
collected at a particular site within their range. Where it occurs, the 
rush darter is apparently an uncommon species that is usually collected 
in low numbers (compiled from Bart and Taylor 1999, pp. 31-32; Johnston 
and Kleiner 2001, pp. 2-4; Stiles and Blanchard 2001, pp. 1-4; Johnston 
2003, pp. 1-3; Stiles and Mills 2008, pp. 1-3; Rakes pers. comm. 2010; 
Drennen pers. obsv. 2006-2010; Kuhajda pers. comm. 2009); however, 
there are no population estimates at this time.
    Cumulatively, the rush darter is only known from localized 
collection sites within approximately 14.5 km (9 mi) of streams in the 
Clear Creek; Little Cove and Bristow Creek; and Turkey Creek drainages 
in Winston, Etowah, and Jefferson Counties, respectively. Currently, 
about 3 km (2 mi) of stream, or about 22 percent of the rush darter's 
known range, is not occupied.
    Within the Clear Creek drainage, the rush darter has been collected 
in Wildcat Branch, Mill Creek, and Doe Creek, which represents about 13 
km (9 mi) of stream or about 89 percent of the species' total 
cumulative range. Recent surveys (Stiles and Mills 2008, pp. 1-4; 
Johnston and Kleiner 2001, p. 3) have failed to document the absence of 
the rush darter in Doe Creek, indicating a potential reduction of the 
species' known range within the Clear Creek drainage by about 3 km (2 
mi) of stream or 22 percent. However, rush darters were collected in 
2005, 2008, and 2009 in the Little Cove Creek drainage (Cove Spring 
run), after a 30 year period of not finding the species. This 
rediscovery of the species confirms the continued existence of the 
species in Etowah County and Cove Spring. However, the Little Cove 
Creek drainage constitutes an increase of only 0.05 km (0.02 mi) of 
occupied stream habitat or a 0.22 percent addition to the total range 
of the species. No collections of the species have occurred at Bristow 
Creek since 1997. Bristow Creek has since been channelized 
(straightened and deepened to increase water velocity). In the Turkey 
Creek drainage, rush darters have been collected sporadically within 
Penny Springs and at the type locality for the species (an unnamed 
spring run in Jefferson County, Alabama) (Bart and Taylor 1999, pp. 28, 
33). However, the rush darter is likely extirpated from Penny and 
Tapawingo Springs due to introductions of the watercress darter (E. 
nuchale) (George et al. 2009, p. 532). The species can still be found 
in portions of an unnamed tributary of Beaver Creek and an unnamed 
spring to Beaver Creek (Kuhajda pers. comm. 2009). This area contains 
about 1.6 km (1 mi) of occupied stream habitat or approximately 11 
percent of the rush darter's total range.
    The rush darter is ranked by the Alabama Department of Conservation 
and Natural Resources (ADCNR) (Wildlife and Freshwater Fisheries 
Division, ADCNR 2005) as a P1G1S1 species signifying its rarity in 
Alabama and its status as critically imperiled globally. It is also 
considered a species of GCN by the State (Bart 2004, p. 193). The rush 
darter has a High Priority Conservation Actions Needed and Key 
Partnership Opportunities ranking of ``CA 6,'' the highest of any fish 
species listed. The State Wildlife Action Plan states that the species 
consists of disjoint populations and information is needed to determine 
genetic structuring within the populations (Wildlife and Freshwater 
Fisheries Division, ADCNR 2005). Conservation Actions for the species 
may require population augmentation or reintroduction of the

[[Page 48727]]

species to suitable habitats to maintain viability.
Yellowcheek Darter
    The yellowcheek darter (Etheostoma moorei) is a small and 
laterally-compressed fish that attains a maximum SL of about 6.4 cm 
(2.5 in), and has a moderately sharp snout, deep body, and deep caudal 
peduncle (Raney and Suttkus 1964, p. 130). The back and sides are 
grayish brown, often with darker brown saddles and lateral bars. 
Breeding males are brightly colored with a bright blue or brilliant 
turquoise throat and breast and a light-green belly, while breeding 
females possess orange and red-orange spots but are not brightly 
colored (Robison and Buchanan 1988, pp. 427-429).
    First collected in 1959 from the Devils Fork Little Red River, 
Cleburne County, Arkansas, this species was eventually described by 
Raney and Suttkus in 1964, using 228 specimens from the Middle, South, 
and Devils Forks of the Little Red River (Devils Fork, Turkey Fork, and 
Beech Fork represent one stream with three different names and are 
subsequently referred to in this rule as ``Devils Fork''). Wood (1996, 
p. 305) verified the taxonomic status of the yellowcheek darter within 
the subgenus Nothonotus. Complete taxonomy for the species is family 
Percidae, subfamily Percinae, tribe Etheostomatini, genus Etheostoma, 
subgenus Nothonotus and E. tippecanoe species group (Wood 1996, p. 
307). The yellowcheek darter is one of only two members of the subgenus 
Nothonotus known to occur west of the Mississippi River.
    The yellowcheek darter inhabits high-gradient headwater tributaries 
with clear water; permanent flow; moderate to strong riffles; and 
gravel, rubble, and boulder substrates (Robison and Buchanan 1988, p. 
429). Yellowcheek darter prey items include aquatic fly larvae, 
stonefly larvae, mayfly nymphs, and caddisfly larvae (McDaniel 1984, p. 
56).
    Male and female yellowcheek darters reach sexual maturity at 1 year 
of age, and maximum lifespan is around 5 years (McDaniel 1984, pp. 25, 
76). Spawning occurs from late May through June in the swift to 
moderately swift portions of riffles, often around or under the largest 
substrate particles (McDaniel 1984, p. 82), although brooding females 
have been found at the head of riffles in smaller gravel substrate 
(Wine et al. 2000, p. 3). During nonspawning months, there is a general 
movement to portions of the riffle with smaller substrate, such as 
gravel or cobble, and less turbulence (Robison and Harp 1981, p. 3). 
Weston and Johnson (2005, p. 24) observed that the yellowcheek darter 
moved very little during a 1-year migration study. It was noted that 
the yellowcheek darter appears to be a relatively nonmobile species, 
with 19 of 22 recaptured darters found within 9 m (29.5 ft) of their 
original capture position after periods of several months. A number of 
life-history characteristics including courtship patterns, specific 
spawning behaviors, egg deposition sites, number of eggs per nest, 
degree of nest protection by males, and degree of territoriality are 
unknown at this time; however, researchers have suggested that the 
yellowcheek darter deposits eggs on the undersides of large rubble in 
swift water (McDaniel 1984, p. 82). Wine and Blumenshine (2002, p. 10) 
noted that, during laboratory spawning, female yellowcheek darters bury 
themselves in fine gravel or sand substrates (often behind large cobble 
or boulders) with only their heads and caudal fin exposed. A male 
yellowcheek darter will then position upstream of the buried female and 
fertilize her eggs as she releases them in a vibrating motion. Clutch 
size and nest defense behavior were not observed.
    The yellowcheek darter is endemic to the Devils, Middle, South, and 
Archey Forks of the Little Red River and mainstem Little Red River in 
Cleburne, Searcy, Stone, and Van Buren Counties, Arkansas (Robison and 
Buchanan 1988, p. 429). In 1962, the construction of a dam on the 
Little Red River to create Greers Ferry Reservoir impounded much of the 
range of this species, including the lower reaches of Devils Fork, 
Middle Fork, South Fork, and portions of the mainstem Little Red River, 
thus extirpating the species from these reaches. Yellowcheek darter was 
also extirpated from the Little Red River downstream of Greers Ferry 
Reservoir due to cold tailwater releases. The lake flooded optimal 
habitat for the species, and caused the genetic isolation of 
populations (McDaniel 1984, p. 1). The yellowcheek darter was known to 
historically occur in portions of these streams that maintained 
permanent year-round flows.
    In the 1978-1981 study by Robison and Harp (1981, pp. 15-16), 
yellowcheek darter occurred in greatest numbers in the Middle and South 
Forks of the Little Red River, with populations estimated at 36,000 and 
13,500 individuals, respectively, while populations in both Devils Fork 
and Archey Fork were estimated at approximately 10,000 individuals 
(Robison and Harp 1981, pp. 5-11). During this study, the four forks of 
the Little Red River supported an estimated yellowcheek darter 
population of 60,000 individuals, and the species was considered the 
most abundant riffle fish present (Robison and Harp 1981, p. 14). 
Extensive sampling of the first two tributaries of the Little Red River 
below Greers Ferry Dam (both named Big Creek) failed to find any 
yellowcheek darters, and no darters were found in immediately adjacent 
watersheds (Robison and Harp 1981, p. 5).
    Two subsequent studies have failed to observe yellowcheek darters 
in the Turkey Fork reach of the Devils Fork Little Red River (Wine et 
al. 2000, p. 9; Wine and Blumenshine 2002, p. 11), since four 
individuals were last collected by Arkansas State University (ASU) 
researchers in 1999 (Mitchell et al. 2002, p. 129). They have been 
observed downstream within that system in the Beech Fork reach, where 
flows are more permanent. The reach downstream of Raccoon Creek is 
influenced by inundation from Greers Ferry Reservoir and no longer 
supports yellowcheek darter. The U.S. Army Corps of Engineers 
channelized approximately 5.6 km (3.5 mi) of the lower Archey and South 
Forks Little Red River within the city limits of Clinton, Arkansas, in 
1985 for flood control purposes. Yellowcheek darter has not been 
collected within this reach since channelization. The yellowcheek 
darter inhabits most of its historical range not currently affected by 
Greers Ferry Lake, although in greatly reduced numbers in the Middle, 
South, Archey, and Devils Forks of the Little Red River.
    While collecting specimens for the 1999 genetic study, ASU 
researchers discovered that the yellowcheek darter was no longer the 
most abundant riffle fish and was more difficult to find throughout its 
historical range (Wine et al. 2000, p. 2). Because optimal habitat had 
been destroyed by the creation of Greers Ferry Lake, yellowcheek 
darters were confined to upper stream reaches with lower summer flow, 
smaller substrate particle size, and reduced gradient. A thorough 
status survey conducted in 2000 found the yellowcheek darter in three 
of four historically occupied forks in greatly reduced numbers (Wine et 
al. 2000, p. 9). Populations in the Middle Fork were estimated at 
approximately 6,000 individuals, the South Fork at 2,300, and the 
Archey Fork at 2,000. Yellowcheek darter was not collected from the 
Devils Fork. Fish community composition was similar from 1978-1981 and 
2000 studies, but the proportion of yellowcheek darter declined from 
approximately 28 percent to 6 percent of the overall composition. Fish 
known to coexist with yellowcheek darter include the rainbow darter (E.

[[Page 48728]]

caeruleum) and greenside darter (E. blennioides), which can use pool 
habitats during periods of low flow, as evidenced by the collection of 
these two species from pools during electroshocking activities. 
Electroshocking has not revealed yellowcheek darter in pools, 
suggesting perhaps that they are unable to tolerate pool conditions 
(deep, slow-moving water usually devoid of cobble substrate). An 
inability to use pools during low flows would make them much more 
vulnerable to seasonal fluctuations in flows that reduce riffle 
habitat. As a result, researchers have suggested that yellowcheek 
darter declines are more likely a species rather than community 
phenomenon (Wine et al. 2000, p. 11).
    Weston and Johnson (2005, p. 22) estimated yellowcheek darter 
populations within the Middle Fork to be between 15,000 and 40,000 
individuals, and between 13,000 and 17,000 individuals in the South 
Fork. Such increases since the 2000 status survey would indicate 
remarkable adaptability to changing environmental conditions. However, 
it should be noted that estimates were based upon mark/recapture 
estimates using the Jolly-Seber method, which requires high numbers of 
recaptured specimens for accurate estimations. Recaptures were 
extremely low during that study; therefore, population estimates were 
highly variable and confidence in the resulting estimates is low.
    The yellowcheek darter is ranked by the Arkansas Natural Heritage 
Commission (ANHC) (2007, pp. 2-118) as an S1G1 species: extremely rare 
in Arkansas, and critically imperiled globally. The Arkansas Game and 
Fish Commission's (AGFC) Wildlife Action Plan describes the yellowcheek 
darter as a critically imperiled species with declining populations 
(AGFC 2005, pp. 452-454).
Chucky Madtom
    The chucky madtom (Noturus crypticus) is a small catfish (family 
Ictaluridae), with the largest specimen measuring 6.5 cm (2.6 in) SL 
(Burr et al. 2005, p. 795). Burr et al. (2005) described the chucky 
madtom, confirming previous analyses (Burr and Eisenhour 1994), which 
indicated that the chucky madtom is a unique species, a member of the 
Rabida subgenus (i.e., the ``mottled'' or ``saddled'' madtoms), and a 
member of the Noturus elegans species complex (i.e., N. elegans, N. 
albater, N. fasciatus, and N. trautmani) outlined by Taylor (1969 in 
Grady and LeGrande 1992). A robust madtom, the chucky madtom body is 
wide at the pectoral fin origins, greater than 23 percent of the SL. 
The back contains three dark, nearly black blotches ending abruptly 
above the lateral midline of the body, with a moderately contrasting, 
oval, pale saddle in front of each blotch (Burr et al. 2005, p. 795).
    The chucky madtom is a rare catfish known from only 15 specimens 
collected from two Tennessee streams. A lone individual was collected 
in 1940 from Dunn Creek (a Little Pigeon River tributary) in Sevier 
County, and 14 specimens have been encountered since 1991 in Little 
Chucky Creek (a Nolichucky River tributary) in Greene County, 
Tennessee. Only 3 chucky madtom individuals have been encountered since 
2000; 1 in 2000 (Lang et al. 2001, p. 2) and 2 in 2004 (CFI 2008, 
unpublished data), despite surveys that have been conducted in both 
historical localities at least twice a year since 2000 (Rakes and Shute 
2004, pp. 2-3; Weber and Layzer 2007, p. 4; CFI 2008, unpublished 
data). In addition, several streams in the Nolichucky, Holston, and 
French Broad River watersheds of the upper Tennessee River basin, which 
are similar in size and character to Little Chucky Creek, have been 
surveyed with no success (Burr and Eisenhour 1994, pp. 1-2; Shute et 
al. 1997, p. 5; Lang et al. 2001, pp. 2-3; Rakes and Shute 2004, p. 1). 
Conservation Fisheries, Inc. did not find chucky madtoms in 2007 after 
attempting new sampling techniques (e.g., PVC ``jug'' traps) (CFI 2008, 
unpublished data).
    Originally, museum specimens collected from the Roaring River in 
Tennessee (Cumberland River drainage) and from Piney Creek, West Fork 
Flint River, and the Paint Rock River system in Alabama (Tennessee 
River drainage) were first identified and catalogued as Noturus elegans 
species complex and thought to be chucky madtoms. The Roaring River, 
Piney Creek, and West Fork Flint River specimens are now considered to 
be a member of the N. elegans group, but have not been assigned to a 
species. While the specimens from the Paint Rock River system share 
typical anal ray counts with the chucky madtom, they lack the 
distinctive cheek characteristics, differ in pelvic ray counts, and are 
intermediately shaped between the chucky and saddled madtoms (N. 
fasciatus) with respect to body width as a proportion of SL (Burr et 
al. 2005, p. 796). Thus, the Little Chucky and Dunn Creek forms are the 
only forms that are recognized as chucky madtoms.
    All of the specimens collected in Little Chucky Creek have been 
found in stream runs with slow to moderate current over pea gravel, 
cobble, or slab-rock substrates (Burr and Eisenhour 1994, p. 2). 
Habitat of these types is sparse in Little Chucky Creek, and the stream 
affords little loose, rocky cover suitable for madtoms (Shute et al. 
1997, p. 8). It is notable that intact riparian buffers are present in 
the locations where chucky madtoms have been found (Shute et al. 1997, 
p. 9).
    No studies to determine the life history and behavior of this 
species have been conducted. While nothing is known specifically about 
chucky madtom reproductive biology, recruitment, growth and longevity, 
food habits, or mobility, this information is available for other 
similar members of the Noturus group. The least madtom (N. hildebrandi) 
may reach sexual maturity at 1 or more years of age (i.e., during their 
second summer) (Mayden and Walsh 1984, p. 351). Only the largest 
females of Ozark madtom (N. albater) were found to be sexually mature, 
and males were found to be sexually mature primarily within the second 
age class (Mayden et al. 1980, p. 339), though, a single large male of 
the first age class showed evidence of sexual maturity (Mayden et al. 
1980, p. 339). The breeding season of the least and smoky madtoms (N. 
baileyi) is primarily during June through July, though development of 
breeding condition is initiated as early as April in least madtom and 
May in smoky madtom (Mayden and Walsh 1984, p. 353; Dinkins and Shute 
1996, p. 56). Fecundity varied among the species for which data were 
available; however, it should be noted that fecundity in madtoms is 
generally lower in comparison to other North American freshwater fishes 
(Breder and Rosen 1966 in Dinkins and Shute 1996, p. 58). Dinkins and 
Shute (1996, p. 58) commented that for smoky madtom the combination of 
relatively large egg size and high level of parental care given to the 
fertilized eggs and larvae reduce early mortality and, therefore, the 
need to produce a large number of young.
    Both smoky and elegant madtoms (N. elegans) were found to nest 
under flat rocks at or near the head of riffles (Dinkins and Shute 
1996, p. 56; Burr and Dimmick 1981, p. 116). Shallow pools were also 
used by the smoky madtom, which was observed to select rocks of larger 
dimension for nesting than were used for shelter during other times of 
year (Dinkins and Shute 1996, p. 56). Single madtoms were found to 
guard nests in smoky and elegant madtoms, a behavior also exhibited by 
Ozark and least madtoms (Dinkins and Shute 1996, p. 56; Burr and 
Dimmick 1981, p. 116; Mayden et al. 1980, p. 337;

[[Page 48729]]

Mayden and Walsh 1984, p. 357). Males of these species were the nest 
guardians and many were found to have empty stomachs suggesting that 
they do not feed during nest guarding, which can last as long as 3 
weeks.
    Conservation Fisheries, Inc. had one male chucky madtom in 
captivity from 2004 through 2008. However, based on information from 
other members of this genus for which longevity data are available, 
least and smoky madtoms, it is unlikely that chucky madtoms can survive 
this long in the wild. The shorter lived of these, least madtom, 
reached a maximum age of 18 months, though most individuals lived 
little more than 12 months, dying soon after reproducing (Mayden and 
Walsh 1984, p. 351). Based on length-frequency distributions, smoky 
madtoms exhibited a lifespan of 2 years, with two cohorts present in a 
given year (Dinkins and Shute 1996, p. 53). Collection of two age 
classes together provided evidence that life expectancy exceeds 1 year 
in the pygmy madtom (N. stanauli) (Etnier and Jenkins 1980, p. 20). The 
Ozark madtom lives as long as 3 years (Mayden et al. 1980, p. 337).
    Chucky madtom prey items are unknown; however, least madtom prey 
items include midge larvae, caddisfly larvae, stonefly larvae, and 
mayfly nymphs (Mayden and Walsh 1984, p. 339). In smoky madtoms, mayfly 
nymphs comprised 70.7 percent of stomach contents analyzed; fly, 
mosquitoe, midge, and gnat larvae 2.4 percent; caddisfly larvae 4.4 
percent; and stonefly larvae 1.0 percent (Dinkins and Shute 1996, p. 
61). Significant daytime feeding was observed in smoky madtoms.
    Dinkins and Shute (1996, p. 50) found smoky madtoms underneath 
slabrocks in swift to moderate current during May to early November. 
Habitat use shifted to shallow pools over the course of a 1-week 
period, coinciding with a drop in water temperature to 7 or 8 [deg]C 
(45 to 46 [deg]F), and persisted from early November to May. Eisenhour 
et al. (1996, p. 43) collected saddled madtoms in gravel, cobble, and 
slab-rock substrates in riffle habitats with depths ranging from 0.1 to 
0.3 m (0.3 to 1.0 ft). Based on their limited number of observations, 
Eisenhour et al. (1996, p. 43) hypothesized that saddled madtoms occupy 
riffles and runs in the daylight hours and then move to pools at night 
and during crepuscular hours (dawn and dusk) to feed.
    The current range of the chucky madtom is believed to be restricted 
to an approximately 3-km (1.8-mi) reach of Little Chucky Creek in 
Greene County, Tennessee. Because this species was also collected from 
Dunn Creek, a stream that is in a different watershed and physiographic 
province than Little Chucky Creek, it is likely that the historic range 
of the chucky madtom encompassed a wider area in the Ridge and Valley 
and the Blue Ridge physiographic provinces in Tennessee than is 
demonstrated by its current distribution. A survey for the chucky 
madtom in Dunn Creek in 1996 was not successful at locating the species 
(Shute et al. 1997, p. 8). The Dunn Creek population may be extirpated 
(Shute et al. 1997, p. 6; Burr et al. 2005, p. 797), because adequate 
habitat and a diverse fish community were present at the time of the 
surveys, but no chucky madtoms were found. There are no population size 
estimates or status trends for the chucky madtom due to low numbers and 
only sporadic collections of specimens.
    The chucky madtom is ranked by the TDEC (2009, p. 58) as an S1G1 
species: extremely rare in Tennessee, and critically imperiled 
globally. The chucky madtom is designated as a Tier 1 GCN species in 
the Tennessee CWCS (TWRA 2005, pp. 44, 49).
Laurel Dace
    The laurel dace (Chrosomus saylori), family Cyprinidae and 
subfamily Leuciscinae, has two continuous black lateral stripes and 
black pigment covering the breast and underside of the head of nuptial 
(breeding) males (Skelton 2001, p. 120). The maximum SL observed is 5.1 
cm (2 in) (Skelton 2001, p. 124). While the belly, breast, and lower 
half of the head are typically a whitish-silvery color, at any time of 
the year laurel dace may develop red coloration below the lateral 
stripe that extends from the base of the pectoral fins to the base of 
the caudal fin (Skelton 2001, p. 121).
    Nuptial males often acquire brilliant coloration during the 
breeding season, as the two lateral stripes, breast, and underside of 
head turn intensely black and the entire ventral (lower/abdominal) 
portion of the body, contiguous with the lower black stripe and black 
breast, becomes an intense scarlet color. All of the fins acquire a 
yellow color, which is most intense in the paired fins and less intense 
in the dorsal, anal, and caudal fins. Females also develop most of 
these colors, though of lesser intensity (Skelton 2001, p. 121). 
Broadly rounded pectoral fins of males are easily discerned from the 
broadly pointed fins of females at any time during the year.
    Laurel dace have been most often collected from pools or slow runs 
from undercut banks or beneath slab boulders, typically in first or 
second order, clear, cool (maximum temperature 26 [deg]C or 78.8 
[deg]F) streams. Substrates in streams where laurel dace are found 
typically consist of a mixture of cobble, rubble, and boulders, and the 
streams tend to have a dense riparian zone consisting largely of 
mountain laurel (Skelton 2001, pp. 125-126).
    Skelton (2001, p. 126) reported having collected nuptial 
individuals from late March until mid-June, though Call (pers. obs. 
2004) observed males in waning nuptial color during surveys on July 22, 
2004. Laurel dace may be a spawning nest associate where syntopic 
(sharing the same habitat) with nest-building minnow species, as has 
been documented in blackside dace (Starnes and Starnes 1981, p. 366). 
Soddy Creek is the only location in which Skelton (2001, p. 126) has 
collected a nest-building minnow with laurel dace. Skelton (2001, p. 
126) reports finding as many as three year classes in some collections 
of laurel dace, though young-of-year fish are uncommon in collections. 
Observations of three year classes indicate that laurel dace live as 
long as 3 years.
    Laurel dace preferred prey items include fly larvae, stonefly 
larvae, and caddisfly larvae (Skelton 2001, p. 126). Skelton observed 
that the morphological feeding traits of laurel dace, including large 
mouth, short digestive tract, reduced number of pharyngeal (located 
within the throat) teeth, and primitively shaped basioccipital bone 
(bone that articulates the vertebra), all of which are consistent with 
a diet consisting largely of animal material.
    Laurel dace are known historically from seven streams on the Walden 
Ridge portion of the Cumberland Plateau, where drainages generally 
meander eastward before dropping abruptly down the plateau escarpment 
and draining into the Tennessee River. Specifically, these seven 
streams occur in three independent systems: Soddy Creek; three streams 
that are part of the Sale Creek system (the Horn and Laurel branch 
tributaries to Rock Creek, and the Cupp Creek tributary to Roaring 
Creek); and three streams that are part of the Piney River system 
(Young's, Moccasin, and Bumbee creeks). Strange and Skelton (2005, p. 
8) assessed the genetic structure within populations of laurel dace 
and, based on distribution of genetic diversity among populations, they 
recognized two genetically distinct management units; (1) The southern 
populations in Sale and Soddy Creeks, and (2) the northern population 
in the Piney River system.
    Skelton (2001, p. 126) considered collections by the Tennessee 
Valley

[[Page 48730]]

Authority (TVA) during a rotenone survey of Laurel Branch in 1976 to 
represent laurel dace that were misidentified as southern redbelly dace 
(Chrosomus erythrogaster), as was found to be true for specimens 
collected by TVA from Horn Branch in 1976, but no specimens are 
available for confirmation. In 1991, and in four other surveys (two in 
1995, one in 1996, and one in 2004), laurel dace were not collected in 
Laurel Branch, leading Skelton to the conclusion that laurel dace have 
been extirpated from this stream (Skelton 1997, p. 13; Skelton 2001, p. 
126; Skelton pers. comm. 2009). Skelton (pers. comm. 2009) also noted 
that the site was impacted by silt.
    The current distribution of laurel dace comprises six of the seven 
streams that were historically occupied; the species is considered 
extirpated from Laurel Branch (see above). In these six streams, they 
are known to occupy reaches of approximately 0.3 to 8 km (0.2 to 5 mi) 
in length. The laurel dace is known from a single reach in Soddy Creek, 
and surveys in 2004 produced only a single, juvenile laurel dace 
(Strange and Skelton 2005, pp. 5-6 and Appendices 1 and 2). In Horn 
Branch, laurel dace are known from approximately 900 m (2,953 ft), but 
have become increasingly difficult to collect (Skelton 1997, pp. 13-
14). Skelton (1997, p. 14) reports that minnow traps have been the most 
successful method for collecting live laurel dace from Horn Branch, as 
it is difficult to electroshock the fish due to in-stream rock 
formations and fallen trees. Only a single juvenile was caught in 2004 
(Strange and Skelton 2005, p. 6). A total of 19 laurel dace were 
collected from Cupp Creek during 1995 and 1996 using an electroshocker 
(Skelton 1996, p. 14). However, Skelton found no laurel dace in this 
stream in 2004, despite attempts to collect throughout an approximately 
700-m (2,297-ft) reach (Strange and Skelton 2005, p. 6).
    Laurel dace were initially found in Young's, Moccasin, and Bumbee 
creeks in the Piney River system in 1996 (Skelton 1997, pp. 14-15). 
Sampling in 2004 led to the discovery of additional laurel dace 
localities in Young's and Moccasin creeks, but the locality where 
laurel dace were found in Young's Creek in 1996 was inaccessible due to 
the presence of a locked gate (Strange and Skelton 2005, p. 6-7). The 
new localities were in the headwaters of these two streams. Persistence 
of laurel dace at the Bumbee Creek locality was confirmed in 2004 by 
surveying from a nearby road using binoculars. Direct surveys were not 
possible because the land had been leased to a hunt club for which 
contact information was not available, and, therefore, survey 
permission could not be obtained (Strange and Skelton 2005, p. 7). 
Nuptial males are easily identified from other species present in 
Bumbee Creek due to their brilliant coloration during the breeding 
season, as the two lateral stripes, breast, and underside of head turn 
intensely black and the entire ventral (lower/abdominal) portion of the 
body, contiguous with the lower black stripe and black breast, becomes 
an intense scarlet color. This brilliant coloration is easily seen 
through binoculars at short distances by trained individuals.
    No population estimates are available for laurel dace. However, 
based on trends observed in surveys and collections since 1991, Strange 
and Skelton (2005, p. 8) concluded that this species is persisting in 
Young's, Moccasin, and Bumbee creeks in the Piney River watershed, but 
is at risk of extirpation from the southern part of Walden Ridge in 
Soddy Creek, and in the Horn Branch and Cupp Creek areas that are 
tributaries to Sale Creek. As noted above, the species is considered to 
be extirpated from Laurel Branch, which is part of the Sale Creek 
system.
    The laurel dace is ranked by the TDEC (2009, p. 60) as an S1G1 
species: extremely rare in Tennessee, and critically imperiled 
globally. The laurel dace is designated as a Tier 1 GCN species in the 
Tennessee CWCS (TWRA 2005, pp. 44, 49).

Summary of Comments and Recommendations

    In the proposed rule published on June 24, 2010, we requested that 
all interested parties submit written comments on the proposed rule to 
list the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace by August 23, 2010. We also contacted 
appropriate Federal and State agencies, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposal. Newspaper notices inviting general public comment were 
published in newspapers covering all affected counties in Kentucky, 
Tennessee, Alabama, and Arkansas. We did not receive any requests for a 
public hearing.
    During the comment period for the proposed rule, we received ten 
comment letters in response to the proposed rule: four from peer 
reviewers, one from a State agency, and five from organizations or 
individuals. All of the ten commenters supported the proposed rule to 
list these five fishes as endangered. All substantive information 
provided during the comment period has either been incorporated 
directly into this final determination or is addressed below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from 12 knowledgeable 
individuals with scientific expertise that included familiarity with 
the 5 species and their habitats, biological needs, and threats. We 
received responses from four of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the listing of the 
five fishes. The peer reviewers generally concurred with our 
conclusions and provided additional information on taxonomic 
classification, life-history, and distribution; technical 
clarifications; and suggestions to improve the final rule. Peer 
reviewer comments are addressed in the ``Summary of Changes from 
Proposed Rule'' and incorporated into the final rule as appropriate.

Public Comments

    (1) Comment: Two commenters stated that the laurel dace is 
threatened, particularly in Horn Branch, a tributary to the Rock Creek 
watershed, by timber harvest, rock harvest (collection of surface 
fieldstones), and coal mining of the Sewanee Coal Seam in Bledsoe and 
Rhea counties, Tennessee. These commenters recommended critical habitat 
designation in the Upper Rock Creek watershed of Bledsoe County, 
Tennessee, due to the threats that are imminent and of high magnitude 
in Horn Branch. The commenters are particularly concerned that mining 
of the Sewanee Coal Seem would result in acid mine drainage.
    Our Response: We concur with these commenters that the laurel dace 
in Rock Creek watershed is threatened by timber harvest, rock harvest, 
and coal mining. We have incorporated further analyses regarding the 
threats of rock harvest and coal mining under ``Summary of Factors 
Affecting the Species'' for laurel dace. Further analysis with regard 
to critical habitat designation will be addressed in the upcoming 
critical habitat rule.
    (2) Comment: One commenter stated that the Cumberland darter is 
threatened, particularly in Dan Branch, a tributary to the Lick Fork 
watershed, by degradation of water quality from mountaintop mining 
projects in Campbell and Claiborne counties, Tennessee. In addition to 
this general concern, the commenter was aware of selenium contamination 
within these same watersheds and feared that the

[[Page 48731]]

issuance of new permits would cause further degradation to fish and 
wildlife habitats in Campbell County.
    Our Response: We concur with the commenter that mountaintop mining, 
and specifically selenium contamination, has the potential to degrade 
the water quality of Cumberland darter streams in Campbell and 
Claiborne counties, Tennessee. Streams associated with mountaintop 
mining and valley fills are characterized by increased conductivity, 
total dissolved solids, and concentrations of sulfate, bicarbonate 
ions, and metals such as manganese, iron, aluminum, and selenium. 
Increased levels of selenium have been shown to bioaccumulate in 
organisms, leading to deformities in larval fish and potentially 
harming birds that prey on fishes. The proposed rule provided a more 
detailed analysis of these and other water quality threats to the 
Cumberland darter under ``Summary of Factors Affecting the Species.''

Summary of Changes From Proposed Rule

    As a result of the comments received during the public comment 
period (see above) we made the following changes to the final listing 
rule:
    (1) We added taxonomic classification information to the species' 
background sections.
    (2) We added life-history information to the Cumberland darter and 
chucky madtom background sections.
    (3) We updated the distributional information for the rush darter 
in Alabama.
    (4) We changed the genus of laurel dace from Phoxinus to Chrosomus 
to reflect recent taxonomic changes (Strange and Mayden 2009).
    (5) We updated population estimate and threats information for the 
yellowcheek darter in Arkansas.

Summary of Factors Affecting the Species

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

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

    The primary threat to the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace is physical habitat 
destruction or modification resulting from a variety of human-induced 
impacts such as siltation, disturbance of riparian corridors, and 
changes in channel morphology (Waters 1995, pp. 2-3; Skelton 1997, pp. 
17, 19; Thomas 2007, p. 5). The most significant of these impacts is 
siltation (excess sediments suspended or deposited in a stream) caused 
by excessive releases of sediment from activities such as resource 
extraction (e.g., coal mining, silviculture, natural gas development), 
agriculture, road construction, and urban development (Waters 1995, pp. 
2-3; Kentucky Division of Water (KDOW) 2006, pp. 178-185; Skelton 1997, 
pp. 17, 19; Thomas 2007, p. 5).
    Land use practices that affect sediment and water discharges into a 
stream can also increase the erosion or sedimentation pattern of the 
stream, which can lead to the destruction or modification of in-stream 
habitat and riparian vegetation, stream bank collapse, and increased 
water turbidity and temperature. Sediment has been shown to abrade and 
suffocate bottom-dwelling fish and other organisms by clogging gills; 
reduce aquatic insect diversity and abundance; impair fish feeding 
behavior by altering prey base and reducing visibility of prey; impair 
reproduction due to burial of nests; and, ultimately, negatively impact 
fish growth, survival, and reproduction (Waters 1995, pp. 5-7, 55-62; 
Knight and Welch 2001, pp. 134-136). Wood and Armitage (1997, pp. 211-
212) identified at least five impacts of sedimentation on fish, 
including (1) reduction of growth rate, disease tolerance, and gill 
function; (2) reduction of spawning habitat and egg, larvae, and 
juvenile development; (3) modification of migration patterns; (4) 
reduction of food availability through the blockage of primary 
production; and (5) reduction of foraging efficiency. The effects of 
these types of threats will likely increase as development increases in 
these watersheds.
    Non-point source pollution from land surface runoff can originate 
from virtually any land use activity and may be correlated with 
impervious surfaces and storm water runoff. Pollutants may include 
sediments, fertilizers, herbicides, pesticides, animal wastes, septic 
tank and gray water leakage, pharmaceuticals, and petroleum products. 
These pollutants tend to increase concentrations of nutrients and 
toxins in the water and alter the chemistry of affected streams such 
that the habitat and food sources for species like the Cumberland 
darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace 
are negatively impacted. Construction and road maintenance activities 
associated with urban development typically involve earth-moving 
activities that increase sediment loads into nearby streams. Other 
siltation sources, including timber harvesting, natural gas development 
activities, clearing of riparian vegetation, mining, and agricultural 
practices, allow exposed earth to enter streams during or after 
precipitation events. These activities result in canopy removal, 
elevated stream temperatures, and increased siltation, thereby 
degrading habitats used by fishes for both feeding and reproduction 
(Mattingly et al. 2005, p. 5). Undisturbed riparian corridors are 
important because they prevent elevated stream temperatures due to 
solar heating, serve as buffers against non-point source pollutants, 
provide submerged root materials for cover and feeding, and help to 
stabilize stream banks (Mattingly et al. 2005, p. 5).
Cumberland Darter
    The Cumberland darter's preferred habitat characteristics (i.e., 
low- to moderate-gradient, low current velocity, backwater nature) make 
it extremely susceptible to the effects of siltation (O'Bara 1991, p. 
11). Sediment (siltation) has been listed repeatedly by KDOW as the 
most common stressor of aquatic communities in the upper Cumberland 
River basin (KDOW 1996, pp. 50-53, 71-75; KDOW 2002, pp. 39-40; KDOW 
2006, pp. 178-185). The primary source of sediment was identified as 
resource extraction (e.g., coal mining, logging). The streams within 
the Cumberland darter's current range that are identified as impaired 
(due to siltation from mining, logging, and agricultural activities) 
and have been included on Kentucky's 303(d) list of impaired waters 
(KDOW 2007, pp. 155-166) include Jenneys Branch (Indian Creek basin), 
an unnamed tributary of Jenneys Branch (Indian Creek basin), Ryans 
Creek (Jellico Creek basin), Marsh Creek, and Wolf Creek (Clear Fork 
basin).
    Siltation can also occur in the Cumberland darter's known habitat 
as a

[[Page 48732]]

result of construction activities for human development. For example, 
during the fall of 2007, an 8.4-km (5.2-mi) reach of Barren Fork in 
McCreary County, Kentucky, was subjected to a severe sedimentation 
event (Floyd pers. obs. 2008). This event occurred despite the fact 
that approximately 95 percent of the Barren Fork watershed is under 
Federal ownership within the Daniel Boone National Forest (DBNF). 
Construction activities associated with the development of a 40.5-
hectare (100-acre) park site caused excessive sedimentation of two 
unnamed headwater tributaries of Barren Fork. Successive, large 
rainfall events in September and October carried sediment offsite and 
impacted downstream areas of Barren Fork known to support Cumberland 
darters and the Federally threatened blackside dace. Our initial site 
visit on September 7, 2007, confirmed that sediment had been carried 
offsite, resulting in significant habitat degradation in the Barren 
Fork mainstem and ``adverse effects'' on the blackside dace. Several 
smaller sediment events have occurred despite Federal and State 
attempts to resolve the issue, and on July 31, 2008, another large 
rainfall event resulted in excessive sedimentation in two Barren Fork 
watershed streams.
    Another significant threat to the Cumberland darter is water 
quality degradation caused by a variety of non-point source pollutants. 
Coal mining represents a major source of these pollutants (O'Bara 1991, 
p. 11; Thomas 2007, p. 5), because it has the potential to contribute 
high concentrations of dissolved metals and other solids that lower 
stream pH or lead to elevated levels of stream conductivity (Pond 2004, 
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been 
shown to negatively affect fish species, including listed species, in 
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29; 
Hartowicz pers. comm. 2008). The direct effect of elevated stream 
conductivity on fishes, including the Cumberland darter, is poorly 
understood, but some species, such as blackside dace, have shown 
declines in abundance over time as conductivity increased in streams 
affected by mining (Hartowicz pers. comm. 2008). Studies indicate that 
blackside dace are generally absent when conductivity values exceed 240 
microSiemens ([micro]S) (Mattingly et al. 2005, p. 59; Black and 
Mattingly 2007, p. 12).
    Other non-point source pollutants that affect the Cumberland darter 
include domestic sewage (through septic tank leakage or straight pipe 
discharges); agricultural pollutants such as fertilizers, pesticides, 
herbicides, and animal waste; and other chemicals associated with oil 
and gas development. Non-point source pollutants can cause excess 
nutrification (increased levels of nitrogen and phosphorus), excessive 
algal growth, instream oxygen deficiencies, increased acidity and 
conductivity, and other changes in water chemistry that can seriously 
impact aquatic species (KDOW 1996, pp. 48-50; KDOW 2006, pp. 70-73).
    In summary, habitat loss and modification represent significant 
threats to the Cumberland darter. Severe degradation from 
sedimentation, physical habitat disturbance, and contaminants threatens 
the habitat and water quality on which the Cumberland darter depends. 
Sedimentation from coal mining, logging, agriculture, and development 
sites within the upper Cumberland basin negatively affect the 
Cumberland darter by reducing growth rates, disease tolerance, and gill 
function; reducing spawning habitat, reproductive success, and egg, 
larvae, and juvenile development; modifying migration patterns; 
reducing food availability through reductions in prey; and reducing 
foraging efficiency. Contaminants associated with coal mining (metals, 
other dissolved solids), domestic sewage (bacteria, nutrients), and 
agriculture (fertilizers, pesticides, herbicides, and animal waste) 
cause degradation of water quality and habitats through increased 
acidity and conductivity, instream oxygen deficiencies, excess 
nutrification, and excessive algal growths. Furthermore, these threats 
faced by the Cumberland darter from sources of sedimentation and 
contaminants are imminent, the result of ongoing projects that are 
expected to continue indefinitely. As a result of the imminence of 
these threats combined with the vulnerability of the remaining small 
populations to extirpation from natural and manmade threats, we have 
determined that the present or threatened destruction, modification, or 
curtailment of the Cumberland darter habitat and range represents a 
significant threat of high magnitude. We have no information indicating 
that the magnitude or imminence of this threat is likely to be 
appreciably reduced in the foreseeable future.
Rush Darter
    Sediment is the most abundant pollutant in the Mobile River Basin 
(Alabama Department of Environmental Management 1996, pp. 14-15) and a 
major threat to the rush darter. Within the Clear Creek drainage, 
Johnston and Kleiner (2001, p. 4) reported that, during August 2001, 
the dominant land use adjacent to Doe Branch and Mill Creek appeared to 
be forests, and that there were no obvious threats to water quality. 
However, Johnston and Kleiner (2001, p. 4) reported that clearcutting 
in the Wildcat Branch watershed may have increased sedimentation into 
the stream. Approximately 84 percent (i.e., 5 km or 3 mi) of Wildcat 
Branch is privately owned, and recent land exchanges within the 
Bankhead National Forest have taken about 0.9 km (0.6 mi) of stream 
west of Clear Creek out of U.S. Forest Service (USFS) management and 
protection. In 2001, Service and USFS personnel noted heavy siltation 
at the County Road 329 Bridge over Doe Branch and at several other road 
crossings in other tributary streams in the immediate area during a 
modest spring rain event. Sediment in area streams is also the result 
of increased erosion from the scouring of roadside ditches, and erosion 
of the gravel County Road 329 itself adjacent to Doe and Wildcat 
branches (Drennen pers. obs. 2005).
    Blanco (2001, p. 68) identified siltation from development projects 
as the greatest threat to the fauna of Turkey Creek. New subdivisions 
have been developed throughout the watershed, increasing the amount of 
impervious surfaces in the recharge areas of springs. The increase in 
impervious surfaces is leading to increased stormwater runoff and is 
reducing the amount of recharge (water storage) available to the 
aquifers that feed springs in the watershed. These flow alterations 
reduce the amount and complexity of rush darter habitat by eroding 
stream banks, destabilizing substrates and aquatic vegetation, and 
decreasing overall water quality.
    There are four major soil types that occur within the Turkey Creek 
watershed, and all are considered highly erodible due to the steep 
topography (Spivey 1982, pp. 5, 7, 8, 14). Therefore, any activity that 
removes native vegetation on these soils can be expected to lead to 
increased sediment loads in Turkey Creek watershed (USFWS 2001, p. 
59370), including the areas near Penny and Tapawingo Springs. 
Industrialization is extensive and expanding throughout the watershed, 
particularly near the type locality for the rush darter (Bart and 
Taylor 1999, p. 33; Drennen pers. obs. 2007-2010).
    Point source siltation has impacted the Turkey Creek watershed, 
including an abundance of sites affecting Beaver Creek, a major 
tributary to Turkey

[[Page 48733]]

Creek. These sites are impaired by bridge, road, and sewer line 
construction; industrialized areas; road maintenance; and storm water 
mismanagement (Drennen pers. obs. 1999, 2004-2010). Rapid urbanization 
in this area renders this population extremely vulnerable during the 
breeding season when rush darters concentrate in wetland pools and 
shallow pools with aquatic vegetation in headwater streams (Stiles and 
Mills 2008, p. 5; Fluker et al. 2007, p. 10).
    Springs throughout the rush darter's range, especially in Pinson 
Valley, flush and dilute sediments and excessive nutrients from streams 
by providing a constant flow of cool, clean water. However, the ongoing 
destruction of spring heads and wetlands throughout the species' range 
has significantly reduced the species' movement and colonization. 
Little Cove Creek and Bristow Creek spring heads have been channelized, 
and the head of Cove Spring has a pumping facility built on it (Fluker 
et al. 2007, p. 1). Channelization and groundwater withdrawals from 
spring heads might do more to impact water quality in these systems 
than overall spring drainage disturbances such as beaver dam 
construction, and road maintenance (Drennen per. obs. 2005). Alteration 
of spring head habitats has reduced water quality and increased 
sediment loads into spring-fed tributary streams throughout the range 
of the rush darter.
    In summary, threats to rush darter include stormwater runoff and 
siltation, caused by an increase in urbanization and impervious 
surfaces in the watershed. Other threats include spring head 
alteration, roadside maintenance, and logging. These threats are 
ongoing and thus considered imminent. The magnitude of the threats is 
high due to the small population sizes and high levels of alterations 
and destruction of the springs and streams. We have no information 
indicating that the magnitude or imminence of these threats is likely 
to be appreciably reduced in the foreseeable future.
Yellowcheek Darter
    Robison and Harp (1981, p. 17), McDaniel (1984, p. 92), and Robison 
and Buchanan (1988, p. 429) have attributed the decline in populations 
of yellowcheek darters in the four forks of the Little Red River and 
the mainstem Little Red River to habitat alteration and degradation. 
The suspected primary cause of the species' decline is the impoundment 
of the Little Red River and lower reaches of the Devils, Middle, and 
South Forks, areas that in the past provided optimal habitat for this 
species. The creation of Greers Ferry Lake, in 1962, converted optimal 
yellowcheek darter habitat (clear, cool, perennial flow with large 
substrate particle size (Robison and Buchanan 1988, p. 429)), to a 
deep, standing water environment. This dramatic change in habitat 
flooded spawning sites and changed chemical and physical 
characteristics in the streams that provide habitat for the species. 
Impoundments profoundly alter channel characteristics, habitat 
availability, and flow regime with serious consequences for biota 
(Allan and Flecker 1993, p. 36, Ward and Stanford 1995, pp. 105-119). 
Some of these include converting flowing to still waters, increasing 
depths and sedimentation, decreasing dissolved oxygen, drastically 
altering resident fish populations (Neves et al. 1997, p. 63), 
disrupting fish migration, and destroying spawning habitat (Ligon et 
al. 1995, pp. 185-86). Channelization of the lower 5.6 km (3.5 miles) 
of Archey and South Forks in 1985 and subsequent, and ongoing, channel 
maintenance by the U.S. Army Corps of Engineers (USACE) and City of 
Clinton, Arkansas, degraded habitat in this reach as well as segments 
upstream of the project area. Based upon current knowledge and a 2004-
2005 threats assessment (Davidson and Wine 2004, pp. 6-13; Davidson 
2005, pp. 1-4), gravel mining, unrestricted cattle access into streams, 
water withdrawal for agricultural and recreational purposes (i.e., golf 
courses), lack of adequate riparian buffers, construction and 
maintenance of county roads, and non-point source pollution arising 
from a broad array of activities also appear to be degrading suitable 
habitat for the species. The threats assessment documented occurrences 
of the aforementioned activities and found 52 sites on the Middle Fork, 
28 sites on the South Fork, 8 sites on Archey Fork (Davidson 2005, pp. 
1-4), and 1 site in the Turkey/Beech/Devils Fork system that are 
adversely affected by these activities and are likely contributors to 
the decline of the species.
    Ozark headwater streams typically exhibit seasonal fluctuations in 
flows, with flow rates highest in spring and lowest in late summer and 
fall. The upper reaches of these small streams are most affected by 
seasonally fluctuating water levels (Robison and Harp 1981, p. 17). As 
a result, they often lack consistent and adequate flows, and by late 
summer or fall are reduced to a series of isolated pools (Wine pers. 
comm. 2008). Expanding natural gas development activities that began in 
the upper Little Red River watershed in 2006 require large quantities 
of water (both surface water and groundwater) and pose an imminent 
threat to the continued existence of yellowcheek darter as these 
activities rapidly expand and increase in the watersheds of all four 
forks (Davidson pers. comm. 2008). Because the yellowcheek darter 
requires permanent flows with moderate to strong current (Robison and 
Buchanan 1988, p. 429), and because downstream refugia have been lost 
to impoundments and channelization, water withdraws that exacerbate 
seasonal stream reductions and reduce moving water (lotic) habitat are 
a serious threat.
    Additional threats to the yellowcheek darter include habitat 
degradation from land use activities in the watershed, including 
agriculture and forestry. Traditional farming practices, feedlot 
operations, and associated poor land use practices contribute many 
pollutants to rivers. Neves et al. (1997, p. 65) suggest that 
agriculture affects 72 percent of impaired river reaches in the United 
States. Nutrients, bacteria, pesticides, and other organic compounds 
generally are found in higher concentrations in agricultural areas than 
forested areas. Nutrient concentrations in streams may result in 
increased algal growth in streams, and a related alteration in fish 
community composition (Petersen et al. 1999, p. 16). Major agricultural 
activities within the Little Red River watershed include poultry, 
dairy, swine, and beef cattle operations.
    The Arkansas Natural Resources Conservation Service (NRCS) has 
identified animal wastes, nutrients, excessive erosion, loss of plant 
diversity, and loss of species as water quality concerns associated 
with agricultural land use activities in the upper Little Red River 
watershed (NRCS 1999). Large poultry and dairy operations increase 
nutrient inputs to streams when producers apply animal waste to 
pastures to stimulate vegetation growth for grazing and hay production. 
Continuous grazing methods in the watershed allow unrestricted animal 
access to grazing areas, and on steeper slopes this results in 
increased runoff and erosion (NRCS 1999). Since pastures often extend 
directly to the edge of the stream, and lack a riparian zone with 
native vegetation, runoff from pastures carries pollutants directly 
into streams. Eroding stream banks also result in alterations to stream 
hydrology and geomorphology, degrading habitat. Livestock spend a 
disproportionate amount of time in riparian areas during hot summer 
months. Trampling and grazing can change and reduce vegetation and 
eliminate riparian areas

[[Page 48734]]

by channel widening, channel aggradation, or lowering of the water 
table (Armour et al. 1991, pp. 7-11).
    Additionally, earthen dams were constructed across a riffle in the 
lower South Fork to create a pool for annual chuckwagon races for many 
years leading up to 2003. The Service and U.S. Army Corps of Engineers 
met with the responsible landowner in 2004 and suggested an alternative 
to dam construction that would minimize impacts to the yellowcheek 
darter. These recommendations were followed for several years; however, 
another earthen dam was constructed in 2008 using material from the 
South Fork to facilitate events associated with the annual chuckwagon 
races. This dam, like its predecessors, was unpermitted and resulted in 
habitat degradation and alteration for several miles upstream and 
downstream of the site.
    The chuckwagon race event draws approximately 20,000 to 30,000 
people per year to the South Fork Little Red River for a 1-week period 
around Labor Day. Horses and wagons traverse the river and its 
tributaries for miles leading to increased habitat disturbance, 
sedimentation, and trampling. The chuckwagon races continue to grow 
annually and pose a threat to the continued existence of yellowcheek 
darters in the South Fork Little Red River.
    Timber harvesting activities involving clear-cutting entire steep 
hillsides were observed during 1999-2000 in the Devils Fork watershed 
(Wine pers. comm. 2008). The failure to implement voluntary State best 
management practices (BMPs) for intermittent and perennial streams 
during timber harvests has resulted in water quality degradation and 
habitat alteration in stream reaches adjacent to harvesting operations. 
When timber harvests involve clear cutting to the water's edge, without 
leaving a riparian buffer, silt and sediment enter streams lying at the 
bottom of steep slopes. The lack of streamside vegetation also promotes 
bank erosion that alters stream courses and introduces large quantities 
of sediment into the channel (Allan 1995, p. 321). Timber harvest 
operations that use roads on steep slopes to transport timber can carry 
silt and sediment from the road into the stream at the bottom of the 
slope. Logging impacts on sediment production are considerable, but 
often erosion of access and haul roads produces more sediment than the 
land harvested for timber (Brim Box and Mossa 1999, p. 102). These 
activities have occurred historically and continue to occur in the 
upper Little Red River watershed.
    Natural gas exploration and development is a newly emerging threat 
to yellowcheek darter populations. Erosion and sedimentation issues 
associated with natural gas development activities, particularly 
pipelines (herein defined as all flow lines, gathering lines, and non-
interstate pipelines), were first documented by Service biologists 
during 2007 in the South Fork Little Red River watershed. In June 2008, 
the Service began documenting significant erosion and sedimentation 
issues associated with natural gas pipeline construction and 
maintenance as natural gas development activities expanded into the 
watershed. Service biologists documented erosion and sedimentation at 
almost every new pipeline stream crossing in the South Fork and Middle 
Fork Little Red River watersheds, regardless of the diameter of the 
pipe. Channel incision was documented at numerous stream crossings that 
are tributaries to the South Fork Little Red River. The incision 
increased erosion and sedimentation, as well as altering the hydrology 
and geomorphology characteristics of the streams. Pipeline rights-of-
way were found to have one of the following conditions: (1) No BMPs 
(i.e., silt fences, grade breaks, non-erodible stream crossing 
materials) installed to prevent erosion and sedimentation; (2) 
ineffective erosion minimization practices in place; (3) effective 
erosion minimization practices that had not been maintained and, thus, 
had become ineffective; or (4) final reclamation of the pipeline right-
of-way had not occurred for months and in some cases greater than a 
year after construction activities ceased, leading to prolonged periods 
of erosion and sedimentation. The magnitude of the impacts to the South 
Fork and Middle Fork Little Red River from 2007-2008 also was 
exacerbated due to above-average rainfall, which led to more frequent 
and larger pipeline erosion events.
    In summary, threats to the yellowcheek darter from the present 
destruction, modification, or curtailment of its habitat or range 
negatively impact the species. Threats include such activities as 
impoundment, sedimentation, poor livestock grazing practices, improper 
timber harvest practices, nutrient enrichment, gravel mining, 
channelization/channel instability, and natural gas development. These 
threats are considered imminent and of high magnitude throughout the 
species' entire range. We have no information indicating that the 
magnitude or imminence of these threats is likely to be appreciably 
reduced in the foreseeable future, and in the case of pipeline 
disturbance, we expect this threat to become more problematic over the 
next several years as natural gas development continues to intensify.
Chucky Madtom
    The current range of the chucky madtom is believed to be restricted 
to an approximately 1.8-mi (3-km) reach of Little Chucky Creek in 
Greene County, Tennessee. Land use data from the Southeast GAP Analysis 
Program (SE-GAP) show that land use within the Little Chucky Creek 
watershed is predominantly agricultural, with the vast majority of 
agricultural land being devoted to production of livestock and their 
forage base (Jones et al. 2000).
    Traditional farming practices, feedlot operations, and associated 
land use practices contribute many pollutants to rivers. Neves et al. 
(1997, p. 65) suggest that agriculture affects 72 percent of impaired 
river reaches in the United States. These practices erode stream banks 
and result in alterations to stream hydrology and geomorphology, 
degrading habitat. Nutrients, bacteria, pesticides, and other organic 
compounds generally are found in higher concentrations in agricultural 
areas than forested areas. Nutrient concentrations in streams may 
result in increased algal growth in streams, and a related alteration 
in fish community composition (Petersen et al. 1999, p. 16).
    The TVA Index of Biological Integrity results indicate that Little 
Chucky Creek is biologically impaired (Middle Nolichucky Watershed 
Alliance 2006, p. 13). Given the predominantly agricultural land use 
within the Little Chucky Creek watershed, non-point source sediment and 
agrochemical discharges may pose a threat to the chucky madtom by 
altering the physical characteristics of its habitat, thus potentially 
impeding its ability to feed, seek shelter from predators, and 
successfully reproduce. The Little Chucky Creek watershed also contains 
a portion of the City of Greeneville, providing an additional source 
for input of sediments and contaminants into the creek and threatening 
the chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at 
least five impacts of sedimentation on fish, including (1) reduction of 
growth rate, disease tolerance, and gill function; (2) reduction of 
spawning habitat and egg, larvae, and juvenile development; (3) 
modification of migration patterns; (4) reduction of food availability 
through

[[Page 48735]]

the blockage of primary production; and (5) reduction of foraging 
efficiency.
    The chucky madtom is a bottom-dwelling species. Bottom-dwelling 
fish species are especially susceptible to sedimentation and other 
pollutants that degrade or eliminate habitat and food sources (Berkman 
and Rabeni 1987, pp. 290-292; Richter et al. 1997, p. 1091; Waters 
1995, p. 72). Etnier and Jenkins (1980, p. 20) suggested that madtoms, 
which are heavily dependent on chemoreception (detection of chemicals) 
for survival, are susceptible to human-induced disturbances, such as 
chemical and sediment inputs, because the olfactory (sense of smell) 
``noise'' they produce could interfere with a madtom's ability to 
obtain food and otherwise monitor its environment.
    In summary, threats to the chucky madtom from the present 
destruction, modification, or curtailment of its habitat or range 
negatively impact the species. Degradation from sedimentation, physical 
habitat disturbance, and contaminants threaten the habitat and water 
quality on which the chucky madtom depends. Sedimentation from 
agricultural lands could negatively affect the chucky madtom by 
reducing growth rates, disease tolerance, and gill function; reducing 
spawning habitat, reproductive success, and egg, larvae, and juvenile 
development; reducing food availability through reductions in prey; and 
reducing foraging efficiency. Contaminants associated with agriculture 
(e.g., fertilizers, pesticides, herbicides, and animal waste) can cause 
degradation of water quality and habitats through instream oxygen 
deficiencies, excess nutrification, and excessive algal growths. 
Furthermore, these threats faced by the chucky madtom from sources of 
sedimentation and contaminants are imminent; the result of ongoing 
agricultural practices that are expected to continue indefinitely. As a 
result of the imminence of these threats combined with the 
vulnerability of the remaining small population to extirpation from 
natural and manmade threats, we have determined that the present or 
threatened destruction, modification, or curtailment of the chucky 
madtom habitat and range represents a significant threat of high 
magnitude. We have no information indicating that the magnitude or 
imminence of these threats is likely to be appreciably reduced in the 
foreseeable future.
Laurel Dace
    Skelton (2001, p. 127) concluded that the laurel dace is 
``presumably tolerant of some siltation.'' However, Strange and Skelton 
(2005, p. 7 and Appendix 2) observed levels of siltation they 
considered problematic during later surveys for the laurel dace and 
concluded this posed a threat in several localities throughout the 
range of the species. Sediment has been shown to abrade and or 
suffocate bottom-dwelling fish and other organisms by clogging gills; 
reducing aquatic insect diversity and abundance; impairing fish feeding 
behavior by altering prey base and reducing visibility of prey; 
impairing reproduction due to burial of nests; and, ultimately, 
negatively impacting fish growth, survival, and reproduction (Waters 
1995, pp. 5-7, 55-62; Knight and Welch 2001, pp. 134-136). However, we 
do not currently know what levels of siltation laurel dace are able to 
withstand before populations begin to decline due to these siltation-
related stressors. The apparent stability of the northern population of 
laurel dace in the Piney River system suggests that this species is at 
least moderately tolerant of siltation-related stressors. We do not 
know the extent to which other factors might have driven the decline of 
the southern populations in Sale and Soddy Creeks.
    Of the streams inhabited by the southern populations recognized by 
Strange and Skelton (2005, p. Appendix 2), the reaches from which 
laurel dace have been collected in Soddy Creek and Horn Branch approach 
1 km (0.6 mi) in length. In Cupp Creek, collections of this species are 
restricted to less than 300 m (984 ft) of stream, in spite of surveys 
well beyond the reach known to be inhabited. In each of the streams 
occupied by the southern populations, Strange and Skelton (2005, 
Appendix 2) identified siltation as a factor that could alter the 
habitat and render it unsuitable for laurel dace. The restricted 
distribution of laurel dace in streams inhabited by the southern 
populations leaves them highly vulnerable to potential deleterious 
effects of excessive siltation or other localized disturbances.
    A newly emerging threat to laurel dace in Soddy Creek is the 
conversion of silvicultural lands to row crop agriculture. Two large 
pine plantations within the Soddy Creek Watershed were harvested and 
then converted to tomato farms. An irrigation impoundment was built on 
one Soddy Creek tributary and another is under construction. As a 
result of these activities, a large silt source was introduced into the 
Soddy Creek headwaters. In addition to contributing sediment, crop 
fields often allow runoff from irrigation water to flow directly into 
the creek. This water contains fungicides, herbicides, and fertilizers 
(Thurman pers. comm. 2010).
    Strange and Skelton (2005, p. 7 and Appendix 2) identified 
siltation as a threat in all of the occupied Piney River tributaries 
(Young's, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality 
for the laurel dace is located within industrial forest that has been 
subjected to extensive clear-cutting and road construction in close 
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy 
sediment load at this locality and commented that conditions in Bumbee 
Creek in 2005 had deteriorated since the site was visited by Skelton in 
2002. Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also 
commented on excessive siltation in localities they sampled on Young's 
and Moccasin Creeks, and observed localized removal of riparian 
vegetation around residences in the headwaters of each of these 
streams. They considered the removal of riparian vegetation problematic 
not only for the potential for increased siltation, but also for the 
potential thermal alteration of these small headwater streams. Skelton 
(2001, p. 125) reported that laurel dace occupy cool streams with a 
maximum recorded temperature of 26 [deg]C (78.8 [deg]F). The removal of 
riparian vegetation could potentially increase temperatures above the 
laurel dace's maximum tolerable limit.
    Water temperature may be a limiting factor in the distribution of 
this species (Skelton 1997, pp. 17, 19). Canopy cover of laurel dace 
streams often consists of eastern hemlock (Tsuga canadensis), mixed 
hardwoods, pines (Pinus spp.), and mountain laurel (Kalmia latifolia). 
The hemlock woolly adelgid (Adelges tsugae) is a nonnative insect that 
infests hemlocks, causing damage or death to trees. The woolly adelgid 
was recently found in Hamilton County, Tennessee, and could impact 
eastern hemlock in floodplains and riparian buffers along laurel dace 
streams in the future (Simmons pers. comm. 2008). Riparian buffers 
filter sediment and nutrients from overland runoff, allow water to soak 
into the ground, protect stream banks, and provide shade for streams 
(Waters 1995, p. 149-152). Because eastern hemlock is primarily found 
in riparian areas, the loss of this species adjacent to laurel dace 
streams would be detrimental to fish habitat.
    Habitat destruction and modification also stem from existing or 
proposed infrastructure development in association with silvicultural 
activities. The presence of culverts at one or more road crossings in 
most of the streams inhabited by laurel dace may disrupt upstream 
dispersal within those systems (Chance pers. obs. 2008). Such dispersal 
barriers could prevent re-establishment

[[Page 48736]]

of laurel dace populations in reaches where they suffer localized 
extinctions due to natural or human-caused events.
    In summary, the primary threat to laurel dace throughout its range 
is excessive siltation resulting from agriculture and extensive 
silviculture involving both inadequate riparian buffers in harvest 
areas and the failure to use BMPs during road construction. Severe 
degradation from sedimentation, physical habitat disturbance, and 
contaminants threatens the habitat and water quality on which the 
laurel dace depends. Sedimentation negatively affects species (such as 
the laurel dace) by reducing growth rates, disease tolerance, and gill 
function; reducing spawning habitat, reproductive success, and egg, 
larvae, and juvenile development; reducing food availability through 
reductions in prey; and reducing foraging efficiency (Waters 1995, pp. 
5-7; 55-62; Wood and Armitage 1997, pp. 211-212; Knight and Welch 2001, 
pp. 134-136). These threats faced by the laurel dace from sources of 
sedimentation and contaminants are imminent, the result of ongoing 
agricultural and silvicultural practices that are expected to continue. 
Since the identified threats substantially affect survival, growth, 
reproduction, and feeding, we have determined that the present or 
threatened destruction, modification, or curtailment of the laurel dace 
habitat and range represents a significant threat of high magnitude. We 
have no information indicating that the magnitude or imminence of these 
threats is likely to be appreciably reduced in the foreseeable future.

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

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

C. Disease or Predation

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

D. The Inadequacy of Existing Regulatory Mechanisms

Cumberland Darter
    The Cumberland darter and its habitats are afforded some protection 
from water quality and habitat degradation under the Clean Water Act of 
1977 (33 U.S.C. 1251 et seq.), Kentucky's Forest Conservation Act of 
1998 (KRS 149.330-355), Kentucky's Agriculture Water Quality Act of 
1994 (KRS 224.71-140), additional Kentucky laws and regulations 
regarding natural resources and environmental protection (KRS 146.200-
360; KRS 224; 401 KAR 5:026, 5:031), and Tennessee's Water Quality 
Control Act of 1977 (TWQCA; T.C.A. 69-3-101). However, as demonstrated 
under Factor A, population declines and degradation of habitat for this 
species are ongoing despite the protection afforded by these laws and 
corresponding regulations. While these laws have resulted in some 
improvements in water quality and stream habitat for aquatic life, 
including the Cumberland darter, they alone have not been adequate to 
fully protect this species; sedimentation and non-point source 
pollutants continue to be a significant problem.
    States maintain water-use classifications through issuance of 
National Pollutant Discharge Elimination System (NPDES) permits to 
industries, municipalities, and others. NPDES permits set maximum 
limits on certain pollutants or pollutant parameters. For water bodies 
on the 303(d) list, States are required under the Clean Water Act to 
establish a total maximum daily load (TMDL) for the pollutants of 
concern that will bring water quality into the applicable standard. 
Three Cumberland darter streams, Jenneys Branch, Marsh Creek, and Wolf 
Creek, have been identified as impaired by the KDOW and placed on the 
State's 303(d) list (KDOW 2008). Causes of impairment were listed as 
siltation/sedimentation from agriculture, coal mining, land 
development, and silviculture and organic enrichment/eutrophication 
from residential areas. TMDLs have not yet been developed for these 
pollutants.
    The Cumberland darter has been designated as an endangered species 
by Tennessee (TWRA 2005, p. 240) and Kentucky (KSNPC 2005, p. 11), but 
the designation in Kentucky conveys no legal protection. Under the 
Tennessee Nongame and Endangered or Threatened Wildlife Species 
Conservation Act of 1974 (Tennessee Code Annotated Sec. Sec.  70-8-101-
112), ``[I]t is unlawful for any person to take, attempt to take, 
possess, transport, export, process, sell or offer for sale or ship 
nongame wildlife, or for any common or contract carrier knowingly to 
transport or receive for shipment nongame wildlife.'' Further, 
regulations included in the Tennessee Wildlife Resources Commission 
Proclamation 00-15 Endangered Or Threatened Species state the 
following: ``Except as provided for in Tennessee Code Annotated, 
Section 70-8-106 (d) and (e), it shall be unlawful for any person to 
take, harass, or destroy wildlife listed as threatened or endangered or 
otherwise to violate terms of Section 70-8-105 (c) or to destroy 
knowingly the habitat of such species without due consideration of 
alternatives for the welfare of the species listed in (1) of this 
proclamation, or (2) the United States list of Endangered fauna.'' 
Under these regulations, potential collectors of this species are 
required to have a State collection permit, therefore protecting 
against potential threats under Factor B. However, in terms of project 
management, and potential habitat disturbance, this regulation only 
provides for the consideration of alternatives, and does not require 
the level of project review afforded by the Act.
    In 7 of 12 streams where the Cumberland darter still occurs, the 
species receives incidental protection under the Act due to the 
coexistence of the Federally threatened blackside dace. These streams 
are in watersheds that are at least partially owned by the Federal 
Government (i.e., DBNF). The five remaining streams supporting 
populations of the Cumberland darter are not afforded this protection.
    In summary, population declines and degradation of habitat for the 
Cumberland darter are ongoing despite the protection afforded by State 
and Federal laws and corresponding regulations. Because of the 
vulnerability of the small remaining populations of the Cumberland 
darter and the imminence of these threats, we find the inadequacy of 
existing regulatory mechanisms to be a significant threat of high 
magnitude. Further, the information available to us at this time does 
not indicate that the magnitude or imminence of this threat is likely 
to be

[[Page 48737]]

appreciably reduced in the foreseeable future.
Rush Darter
    The rush darter and its habitats are afforded some protection from 
water quality and habitat degradation under the Clean Water Act and the 
Alabama Water Pollution Control Act, as amended, 1975 (Code of Alabama, 
Sec. Sec.  22-22-1 to 22-22-14). However, as demonstrated under Factor 
A, population declines and degradation of habitat for this species are 
ongoing despite the protection afforded by these laws. While these laws 
have resulted in some improvement in water quality and stream habitat 
for aquatic life, including the rush darter, they alone have not been 
adequate to fully protect this species; stormwater mismanagement, 
sedimentation, and non-point source pollutants continue to be a 
significant problem. In addition, these laws have not adequately 
addressed water quantity issues that are a problem throughout the range 
of the species. Sediment is the most abundant pollutant in the Mobile 
River Basin and is among the greatest threats to the rush darter.
    The State of Alabama maintains water-use classifications through 
issuance of NPDES permits to industries, municipalities, and others 
that set maximum limits on certain pollutants or pollutant parameters. 
For water bodies on the 303(d) list, States are required under the 
Clean Water Act to establish a TMDL for the pollutants of concern that 
will bring water quality into the applicable standard. The State of 
Alabama has not identified any impaired water bodies in Jefferson, 
Winston, and Etowah counties in the immediate or upstream portion of 
the rush darter range or in any watersheds in Winston or Etowah 
counties. However, sedimentation events are usually related to 
stormwater runoff episodes, and are usually not captured by routine 
water quality sampling.
    Although stormwater events are temporary in nature, they are still 
harmful to aquatic species. The size and frequency of floods and 
stormwater events increases with urbanization (Konrad 2003, pp. 1-4). 
Stormwater events in urban areas decrease the storage capacity for 
water in urban basins compared to rural basins; and urbanization 
promotes more rapid runoff, higher peak discharge rates, and total 
volume of water (Konrad 2003, pp. 1-4). Not only does urbanization and 
associated runoff change the physical aspects of water resources, but 
also the chemical and biological conditions of waterways (AMEC Earth 
and Environmental 2001, p. 1). Jefferson County, Alabama (2005, pp. 2, 
39) has noted that the expansion of impervious surfaces in the Turkey 
Creek Drainage Basin caused an increase in flood heights and water 
velocity during stormwater events. Due to these observations, the Storm 
Water Management Authority and Jefferson County Department of Health 
(2010, pp. 4-9) are tracking and monitoring construction and 
maintenance sites that impact stormwater management within the Turkey 
Creek and City of Pinson area. As demonstrated under Factor A, flow 
alterations associated with stormwater runoff reduce the amount and 
complexity of rush darter habitat by eroding stream banks, 
destabilizing substrates and aquatic vegetation, and decreasing overall 
water quality.
    In summary, population declines and degradation of habitat for the 
rush darter are ongoing despite the protection afforded by State and 
Federal laws and corresponding regulations. Despite these laws, 
sedimentation, flow alterations, and non-point source pollution 
continue to adversely affect the species. Because of the vulnerability 
of the small remaining populations of the rush darter and the imminence 
of these threats, we find the inadequacy of existing regulatory 
mechanisms to be a significant threat of high magnitude. Further, the 
information available to us at this time does not indicate that the 
magnitude or imminence of this threat is likely to be appreciably 
reduced in the foreseeable future.
Yellowcheek Darter
    The Arkansas Department of Environmental Quality (ADEQ) has 
established water quality standards for surface waters in Arkansas, 
including specific standards for those streams designated as 
``extraordinary resource waters'' (ERW) based on ``a combination of the 
chemical, physical, and biological characteristics of a waterbody and 
its watershed, which is characterized by scenic beauty, aesthetics, 
scientific values, broad scope recreation potential, and intangible 
social values'' (ADEQ Regulation 2, November 25, 2007). As described in 
ADEQ's Regulation 2, Section 2.203, ERW ``shall be protected by (1) 
water quality controls, (2) maintenance of natural flow regime, (3) 
protection of in stream habitat, and (4) pursuit of land management 
protective of the watershed.'' This regulatory mechanism has precluded 
most large-scale commercial gravel mining in the Little Red River 
watershed; however, illegal gravel mining is still considered a cause 
of habitat degradation and a threat in this watershed. The Middle, 
Archey, and Devils (and its major tributaries) forks are designated as 
ERW. The South Fork has not been designated as an ERW. The applicable 
water quality standards have not protected yellowcheek darter habitat 
from alterations and water quality degradation from traditional land 
use and expanding natural gas development activities.
    The Arkansas Forestry Commission is the State agency responsible 
for establishing BMPs for timber harvests in Arkansas. BMPs for timber 
harvests in Arkansas are only recommendations; there is no requirement 
that timber harvesters include BMPs in timber operations. The BMPs are 
currently under revision, but the Service does not know what effect 
these revisions will have on aquatic habitats within the range of the 
species.
    Natural gas production in the upper Little Red River watershed 
presents a unique problem for yellowcheek darter conservation. In 
Arkansas, mineral rights for properties supersede the surface rights. 
Even where private landowners agree to implement certain BMPs or 
conservation measures on their lands for yellowcheek darter 
conservation, there is no guarantee that these BMPs or conservation 
measures will be implemented by natural gas companies, their 
subsidiaries, or contractors that lease and develop the mineral rights 
for landowners. For this reason, the intended benefits of conservation 
measures agreed to by landowners in agreements such as Candidate 
Conservation Agreements with Assurances may never be realized. 
Additionally, natural gas projects often do not contain a Federal nexus 
that would allow the Service to comment on proposed or ongoing 
projects.
    The Arkansas Natural Resources Commission regulates water 
withdrawal in Arkansas streams. To date, they have not precluded water 
withdrawal for natural gas development activities in the upper Little 
Red River watershed. The USACE regulates instream activities under the 
Clean Water Act. Their policy to date has been to issue permits for 
instream activities associated with pipeline construction and 
maintenance under Nationwide Permits rather than Individual Permits 
that require more public involvement. The ADEQ lacks the resources 
necessary to enforce existing regulations under the Clean Water Act and 
the Arkansas Water and Air Pollution Act for activities associated with 
natural gas development.
    The yellowcheek darter receives incidental protection under the Act 
due to the coexistence of the Federally endangered speckled pocketbook

[[Page 48738]]

mussel (Lampsilis streckeri), which occurs throughout the upper Little 
Red River drainage. However, this protection has been insufficient to 
mitigate the threats to either species.
    In summary, the threats of inadequacy of existing regulatory 
mechanisms are imminent and considered high in magnitude. This is of 
particular concern in regard to the vulnerability of the species to 
threats from natural gas development, which is already impacting 
populations in the South and Middle forks of the Little Red River and 
is expected to intensify in the next several years throughout the range 
of the species. Further, the information available to us at this time 
does not indicate that the magnitude or imminence of this threat is 
likely to be appreciably reduced in the foreseeable future.
Chucky Madtom
    The chucky madtom and its habitats are afforded some protection 
from water quality and habitat degradation under the Clean Water Act 
and TDEC's Division of Water Pollution Control under the TWQCA. 
However, as demonstrated under Factor A, population declines and 
degradation of habitat for this species are ongoing despite the 
protection afforded by these laws. While these laws have resulted in 
improved water quality and stream habitat for aquatic life, including 
the chucky madtom, they alone have not been adequate to fully protect 
this species; sedimentation and non-point source pollutants continue to 
be a significant problem. Sediment is the most abundant pollutant in 
the Little Chucky Creek watershed and is the greatest threat to the 
chucky madtom.
    Portions of the Nolichucky River and its tributaries in Greene 
County, Tennessee, are listed as impaired (303d) by the State of 
Tennessee due to pasture grazing, irrigated crop production, 
unrestricted cattle access, land development, municipal point source 
discharges, septic tank failures, gravel mining, agriculture, and 
channelization (TDEC 2010, pp. 64-73). However, Little Chucky Creek is 
not listed as ``an impaired water'' by the State of Tennessee (TDEC 
2010, pp. 64-73). For water bodies on the 303(d) (impaired) list, 
States are required under the Clean Water Act to establish a TMDL for 
the pollutants of concern that will bring water quality into the 
applicable standard. The TDEC has developed TMDLs for the Nolichucky 
River watershed to address the problems of fecal coliform loads, 
siltation, and habitat alteration by agriculture.
    The chucky madtom receives incidental protection under the Act due 
to the coexistence of the Federally endangered Cumberland bean (Villosa 
trabalis), which is still thought to occur in Little Chucky Creek, 
Greene County, Tennessee (Ahlstedt pers. comm. 2008). However, this 
protection has been insufficient to mitigate the threats to either 
species.
    The chucky madtom was listed as Endangered by the State of 
Tennessee in September of 2000. Under the Tennessee Nongame and 
Endangered or Threatened Wildlife Species Conservation Act of 1974 
(Tennessee Code Annotated Sec. Sec.  70-8-101-112), ``[I]t is unlawful 
for any person to take, attempt to take, possess, transport, export, 
process, sell or offer for sale or ship nongame wildlife, or for any 
common or contract carrier knowingly to transport or receive for 
shipment nongame wildlife.'' Further, regulations included in the 
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered 
Or Threatened Species state the following: ``Except as provided for in 
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be 
unlawful for any person to take, harass, or destroy wildlife listed as 
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due 
consideration of alternatives for the welfare of the species listed in 
(1) of this proclamation, or (2) the United States list of Endangered 
fauna.'' Under these regulations, potential collectors of this species 
are required to have a State collection permit. However, in terms of 
project management, this regulation only provides for the consideration 
of alternatives, and does not require the level of project review 
afforded by the Act.
    In summary, population declines and degradation of habitat for the 
chucky madtom are ongoing despite the protection afforded by State and 
Federal laws and corresponding regulations. Despite these laws, 
sedimentation and non-point source pollution continue to adversely 
affect the species. Because of the vulnerability of the small remaining 
populations of the chucky madtom and the imminence of these threats, we 
find the inadequacy of existing regulatory mechanisms to be a 
significant threat of high magnitude. Further, the information 
available to us at this time does not indicate that the magnitude or 
imminence of this threat is likely to be appreciably reduced in the 
foreseeable future.
Laurel Dace
    The laurel dace and its habitats are afforded some protection from 
water quality and habitat degradation under the Clean Water Act and by 
TDEC's Division of Water Pollution Control under the TWQCA. However, as 
demonstrated under Factor A, population declines and degradation of 
habitat for this species are ongoing despite the protection afforded by 
these laws. While these laws have resulted in improved water quality 
and stream habitat for aquatic life, including the laurel dace, they 
alone have not been adequate to fully protect this species; 
sedimentation and non-point source pollutants continue to be a 
significant problem. Sediment is the most abundant pollutant in the 
watershed and one of the greatest threats to the laurel dace.
    The State of Tennessee maintains water-use classifications through 
issuance of NPDES permits to industries, municipalities, and others 
that set maximum limits on certain pollutants or pollutant parameters. 
For water bodies on the 303(d) list, States are required under the 
Clean Water Act to establish a TMDL for the pollutants of concern that 
will bring water quality into the applicable standard. The TDEC has not 
identified any impaired water bodies in the Soddy Creek, the Sale Creek 
system, or the Piney River system (TDEC 2008).
    The TWRA lists the laurel dace as endangered. Under the Tennessee 
Nongame and Endangered or Threatened Wildlife Species Conservation Act 
of 1974 (Tennessee Code Annotated Sec. Sec.  70-8-101-112), ``[I]t is 
unlawful for any person to take, attempt to take, possess, transport, 
export, process, sell or offer for sale or ship nongame wildlife, or 
for any common or contract carrier knowingly to transport or receive 
for shipment nongame wildlife.'' Further, regulations included in the 
Tennessee Wildlife Resources Commission Proclamation 00-15 Endangered 
Or Threatened Species state the following: ``Except as provided for in 
Tennessee Code Annotated, Section 70-8-106 (d) and (e), it shall be 
unlawful for any person to take, harass, or destroy wildlife listed as 
threatened or endangered or otherwise to violate terms of Section 70-8-
105 (c) or to destroy knowingly the habitat of such species without due 
consideration of alternatives for the welfare of the species listed in 
(1) of this proclamation, or (2) the United States list of Endangered 
fauna.'' Under these regulations, potential collectors of this species 
are required to have a State collection permit. However, in terms of

[[Page 48739]]

project management, this regulation only provides for the consideration 
of alternatives, and does not require the level of project review 
afforded by the Act.
    In summary, population declines and degradation of habitat for the 
laurel dace are ongoing despite the protection afforded by State and 
Federal water quality laws. While these laws have resulted in improved 
water quality and stream habitat for aquatic life, including the laurel 
dace, they alone have not been adequate to fully protect this species; 
sedimentation and non-point source pollutants continue to be a 
significant problem. Non-point source pollution is not regulated by the 
Clean Water Act. Due to the vulnerability of the laurel dace to water 
quality and habitat degradation, we find the inadequacy of regulatory 
mechanisms that address water quality to be an imminent threat of high 
magnitude. Further, the information available to us at this time does 
not indicate that the magnitude or imminence of this threat is likely 
to be appreciably reduced in the foreseeable future.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Restricted Range and Population Size
    The Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace have limited geographic ranges and small 
population sizes. Their existing populations are extremely localized, 
and geographically isolated from one another, leaving them vulnerable 
to localized extinctions from intentional or accidental toxic chemical 
spills, habitat modification, progressive degradation from runoff (non-
point source pollutants), natural catastrophic changes to their habitat 
(e.g., flood scour, drought), other stochastic disturbances, and to 
decreased fitness from reduced genetic diversity. Potential sources of 
unintentional spills include accidents involving vehicles transporting 
chemicals over road crossings of streams inhabited by one of these five 
fish, or the accidental or intentional release of chemicals used in 
agricultural or residential applications into streams.
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
decreasing their ability to adapt to environmental changes, and 
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter 
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is 
likely that some of the Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace populations are below the 
effective population size required to maintain long-term genetic and 
population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 105-
107). The long-term viability of a species is founded on the 
conservation of numerous local populations throughout its geographic 
range (Harris 1984, pp. 93-104). These separate populations are 
essential for the species to recover and adapt to environmental change 
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The 
level of isolation seen in these five species makes natural 
repopulation following localized extirpations virtually impossible 
without human intervention.
Climate Change
    Climate change has the potential to increase the vulnerability of 
the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, 
and laurel dace to random catastrophic events (e.g., McLaughlin et al. 
2002; Thomas et al. 2004). Climate change is expected to result in 
increased frequency and duration of droughts and the strength of storms 
(e.g., Cook et al. 2004). During 2007, a severe drought affected the 
upper Cumberland River basin in Kentucky and Tennessee. Streamflow 
values for the Cumberland River at Williamsburg, Kentucky (USGS Station 
Number 03404000), in September and October of 2007 were among the 
lowest recorded monthly values (99th percentile for low-flow periods) 
during the last 67 years (Cinotto pers. comm. 2008). Climate change 
could intensify or increase the frequency of drought events, such as 
the one that occurred in 2007. Thomas et al. (2004, p. 112) report that 
the frequency, duration, and intensity of droughts are likely to 
increase in the Southeast as a result of global climate change.
    Fluker et al. (2007, p. 10) reported that drought conditions, 
coupled with rapid urbanization in watersheds that contain rush 
darters, render the populations vulnerable, especially during the 
breeding season when they concentrate in wetland pools and shallow 
pools of headwater streams. Drought conditions from 2006 to 2007 
greatly reduced spawning habitat for rush darter in Jefferson County 
(Drennen pers. obs. 2007). Survey numbers for the rush darter within 
the spring-fed headwaters for the unnamed tributary to Turkey Creek 
during 2007 were reduced due to a lack of water (Kuhajda pers. comm. 
2008). In Winston County, Stiles and Mills (2008, pp. 5-6) noted that 
Doe Branch almost completely dried up during the summer of 2007 (Stiles 
pers. comm. 2008).
    The Little Red River watershed in Arkansas experienced moderate 
drought conditions during 1997-2000 (Southern Regional Climate Center 
2000), which reduced flows in its tributaries and affected yellowcheek 
darter populations. During a status survey for the species conducted in 
2000, the stage height of the Little Red River was 0.3 m (1 ft) lower 
than what was reported during a 1979-1980 status survey of the darter 
(Wine et al. 2000, p. 7). Stream flow is strongly correlated with 
important physical and chemical parameters that limit the distribution 
and abundance of riverine species (Power et al. 1995, p. 159; Resh et 
al. 1988, p. 437) and it regulates the ecological integrity of flowing 
water systems (Poff et al. 1997, p. 769). During the 2000 status 
survey, the yellowcheek darter was not found in the upper reaches of 
any study streams or in the Turkey/Beech Fork reach of Devils Fork, a 
likely result of drought conditions. This indicates a contraction of 
yellowcheek darter range to stream reaches lower in the watershed where 
flows are maintained for a greater portion of the year (Wine et al. 
2000, p. 11). It is possible that the perceived contraction in range 
occurs only during low precipitation years in north-central Arkansas. 
The threat of drought is imminent and moderate to high, respectively, 
in all four watersheds for the yellowcheek darter. Exacerbation of 
natural drought cycles as a result of global climate change could have 
detrimental effects on the species, which could continue for the 
foreseeable future.
Competition From Introduced Species
    The Federally endangered watercress darter (Etheostoma nuchale) was 
translocated outside of its native range by the Service into Tapawingo 
Springs in 1988 in order to assist in the species' recovery by 
expanding its range (Moss 1995, p. 5). The watercress darter is now 
reproducing and is competing with the rush darter in Tapawingo Springs 
(USFWS 1993, p. 1; Drennen pers. obs. 2004; George et al. 2009, p. 
532). In 2001, a population of watercress darters was found in the 
Penny Springs site (Stiles and Blanchard 2001, p. 3). The introduced 
watercress darter appears to be out-competing the rush darter at this 
site (Fluker et al. 2008, p. 1; George et al. 2009, p. 532), even 
though the rush darter has always been considered rare in the Tapawingo 
Spring area (Stiles pers. comm. 2008). Further investigation may be 
required to determine whether interspecific competition is occurring

[[Page 48740]]

between the watercress darter and the rush darter at this site (Stiles 
pers. comm. 2008). However, Fluker et al. (2008, p. 1) and George et 
al. (2009, p. 532) consider the rush darter to be extirpated after 
completing 2 years of surveys (2008-2009) in Tapawingo Spring.
Reduced Fecundity
    The low fecundity rates exhibited by many madtom catfishes (Breder 
and Rosen 1966 in Dinkins and Shute 1996, p. 58) could limit the 
potential for populations to rebound from disturbance events. The short 
lifespan exhibited by members of the N. hildebrandi clade (a taxonomic 
group of organisms classified together on the basis of homologous 
features traced to a common ancestor) of madtoms, if also true of 
chucky madtoms, would further limit the species' viability by rendering 
it vulnerable to severe demographic shifts from disturbances that 
prevent reproduction in even a single year, and could be devastating to 
the population if the disturbance persists for successive years.
Summary
    Because the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace all have limited geographic ranges and 
small population sizes, they are subject to several ongoing natural and 
manmade threats. Since these threats are ongoing, they are considered 
to be imminent. The magnitude of these threats is high for each of 
these species because they result in a reduced ability to adapt to 
environmental change. Further, the information available to us at this 
time does not indicate that the magnitude or imminence of this threat 
is likely to be appreciably reduced in the foreseeable future.
    Exacerbation of natural drought cycles as a result of global 
climate change could have detrimental effects on these five species, 
which are expected to continue or increase in the future. The specific 
threat of global climate change is considered to be nonimminent. The 
Federally endangered watercress darter (Etheostoma nuchale) introduced 
into the range of the rush darter is now potentially competing with the 
rush darter. The low fecundity rates exhibited by many madtom catfishes 
could specifically affect the chucky madtom and exacerbate the problem 
of its recovering from disturbance events. These threats are considered 
moderate/low in magnitude because of the uncertainty of their effects, 
but are considered imminent as they are ongoing.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace. Section 3(6) of the Act defines an endangered 
species as ``any species which is in danger of extinction throughout 
all or a significant portion of its range.'' We find that each of these 
five species is presently in danger of extinction throughout its entire 
range, based on the immediacy and magnitude of the threats described 
above. Based on our analysis, we have no reason to believe that the 
negative population trends for any of the five species addressed in 
this final rule will improve, nor will the effects of current threats 
acting on the species be ameliorated in the foreseeable future. 
Therefore, on the basis of the best available scientific and commercial 
information, we are listing the Cumberland darter, rush darter, 
yellowcheek darter, chucky madtom, and laurel dace as endangered under 
the Act.
    Without the protection of the Act, these five species are in danger 
of extinction throughout all of their highly localized ranges. 
Extinction could occur within a few years, given the reduction of 
habitats and ranges, small population sizes, current habitat threats, 
and natural or human-induced catastrophic events. Furthermore, because 
of the immediate and ongoing significant threats to each species 
throughout their entire respective ranges, as described above in the 
five-factor analysis, we find that it is unnecessary to analyze whether 
there are any significant portions of ranges for each species that may 
warrant a different determination of status.

Critical Habitat

    In the June 24, 2010 proposed listing rule (75 FR 36035) we 
determined that designation of critical habitat was prudent for all 
five species. However, we found that critical habitat was not 
determinable at the time, and set forth the steps we would undertake to 
obtain the information necessary to develop a proposed designation of 
critical habitat. We have completed these steps and intend to publish a 
proposed designation in the next few months for all five species. We 
were unable to include the critical habitat with the final listing rule 
due to an internal publishing issue requiring separate publication of 
proposed and final rules in the Federal Register.

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 results in public awareness and 
conservation actions by Federal, State, and private organizations; and 
individuals. The Act encourages cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
The protection measures required of Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include, but are not limited to, the carrying out or the 
issuance of permits for reservoir construction, stream alterations, 
discharges, wastewater facility development, water withdrawal projects, 
pesticide registration, mining, and road and bridge construction.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered 
wildlife, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt any of these), import or export, ship in interstate

[[Page 48741]]

commerce in the course of commercial activity, or sell or offer for 
sale in interstate or foreign commerce any listed species. It also is 
illegal to possess, sell, deliver, carry, transport, or ship any 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.22 for 
endangered species, and at 17.32 for threatened species. With regard to 
endangered wildlife, a permit must be issued for the following 
purposes: for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities.

Required Determinations

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

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

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

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

Authors

    The primary authors of this document are the staff members of the 
Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.11(h) by adding entries for ``Dace, laurel,'' 
``Darter, Cumberland,'' ``Darter, rush,'' ``Darter, yellowcheek,'' and 
``Madtom, chucky'' to the List of Endangered and Threatened Wildlife, 
in alphabetical order, under FISHES, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Dace, laurel.....................  Chrosomus saylori...  U.S.A (TN).........  Entire.............  E                       791           NA           NA
 
                                                                      * * * * * * *
Darter, Cumberland...............  Etheostoma susanae..  U.S.A. (KY, TN)....  Entire.............  E                       791           NA           NA
 
                                                                      * * * * * * *
Darter, rush.....................  Etheostoma            U.S.A. (AL)........  Entire.............  E                       791           NA           NA
                                    phytophilum.
 
                                                                      * * * * * * *
Darter, yellowcheek..............  Etheostoma moorei...  U.S.A. (AR)........  Entire.............  E                       791           NA           NA
 
                                                                      * * * * * * *
Madtom, chucky...................  Noturus crypticus...  U.S.A. (TN)........  Entire.............  E                       791           NA           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: July 27, 2011.
 James J. Slack,
 Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-20018] Filed 8-8-11; 8:45 am]
BILLING CODE 4310-55-P