[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63360-63418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25655]



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Vol. 76

Wednesday,

No. 197

October 12, 2011

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for the Cumberland Darter, Rush Darter, Yellowcheek 
Darter, Chucky Madtom, and Laurel Dace; Proposed Rule

  Federal Register / Vol. 76 , No. 197 / Wednesday, October 12, 2011 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0074; MO 92210-0-0009 B4]
RIN 1018-AX76


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Cumberland Darter, Rush Darter, 
Yellowcheek Darter, Chucky Madtom, and Laurel Dace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
critical habitat 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). 
Approximately 85 river kilometers (rkm) (53 river miles (rmi)) are 
being proposed for designation of critical habitat for the Cumberland 
darter in McCreary and Whitley Counties, Kentucky, and Campbell and 
Scott Counties, Tennessee; 42 rkm (27 rmi) and 19 hectares (ha) (22 
acres (ac)) are being proposed for designation of critical habitat for 
the rush darter in Etowah, Jefferson, and Winston Counties, Alabama; 
157 rkm (98 rmi) are being proposed for designation of critical habitat 
for the yellowcheek darter in Cleburne, Searcy, Stone, and Van Buren 
Counties, Arkansas; 32 rkm (20 rmi) are being proposed for designation 
of critical habitat for the chucky madtom in Greene County, Tennessee; 
and 42 rkm (26 rmi) are being proposed for designation of critical 
habitat for the laurel dace in Bledsoe, Rhea, and Sequatchie Counties, 
Tennessee.

DATES: We will accept comments received or postmarked on or before 
December 12, 2011. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by November 28, 
2011.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments on Docket no. FWS-R4-ES-2011-
0074.
    (2) U.S. mail or hand-delivery: Public Comments Processing, Attn: 
FWS-R4-ES-2011-0074; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; 
Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: 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, Room 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 or laurel 
dace, contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife 
Service, Tennessee Ecological Services Field Office, 446 Neal Street, 
Cookeville, TN 38501; telephone 931-525-4973; 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:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and effective as possible. Therefore, we request 
comments or information from government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to any of the five species 
from human activity, the degree of which can be expected to increase 
due to the designation, and whether that increase in threat outweighs 
the benefit of designation such that the designation of critical 
habitat may not be prudent.
    (2) Specific information on:
    (a) The amount and distribution of each species' habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of any of the five species, should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change, and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of any of the five species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on any of the five species or their proposed critical 
habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will 
post your entire comment--including your personal identifying 
information--on http://www.regulations.gov. You may request at the top 
of your document that we withhold personal information such as your 
street address, phone number, or e-mail address from public review; 
however, we cannot guarantee that we will be able to do so.

[[Page 63361]]

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

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the Cumberland darter (Etheostoma susanae), rush darter 
(Etheostoma phytophilum), yellowcheek darter (Etheostoma moorei), 
chucky madtom (Noturus crypticus), and laurel dace (Chrosomus saylori), 
refer to the final listing rule published in the Federal Register on 
August 9, 2011 (76 FR 48722). See also the discussion of habitat in the 
Physical and Biological Features section below.

Cumberland Darter

    The Cumberland darter (Etheostoma susanae) is a narrowly endemic 
fish species, occurring in sparse, fragmented, and isolated populations 
in the upper Cumberland River system of Kentucky and Tennessee. The 
species 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 
centimeters (cm) (8 to 30 inches (in)).
    The Cumberland darter's current distribution is limited to 13 
streams in McCreary and Whitley Counties, Kentucky, and Campbell and 
Scott Counties, Tennessee (Thomas 2007, pp. 11-12). Occurrences from 
these streams are thought to form six population clusters (Bunches 
Creek, Indian Creek, Marsh Creek, Jellico Creek, Wolf Creek, 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).
    The primary threat to the Cumberland darter 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; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p. 
5).

Rush Darter

    The rush darter (Etheostoma phytophilum) is a narrowly endemic, 
rare, and difficult to collect fish species in north-central Alabama. 
The rush darter occurs in sparse, fragmented, and isolated populations. 
The species is currently known from tributaries and associated spring 
systems of the Turkey Creek (Jefferson County), Clear Creek (Winston 
County), and Little Cove Creek watersheds (Etowah County). Most of 
these tributaries contain sites with intact physical characteristics 
such as riffles, runs, pools, transition zones, and emergent 
vegetation. Rush darters prefer springs and spring-fed reaches of 
relatively low-gradient, small streams (Bart and Taylor 1999, p. 32; 
Johnston and Kleiner 2001, pp. 3-4; Stiles and Blanchard 2001, pp. 1-4; 
Bart 2002, p. 1; Fluker et al. 2007, p. 1; Stiles and Mills 2008, pp. 
1-4). Rush darters are also found in wetland pools and in some 
ephemeral tributaries of the aforementioned watersheds (Stiles and 
Mills 2008, pp. 2-3). This species also relies heavily on aquatic 
vegetation (Fluker et al. 2007, p. 1), including both small clumps and 
dense stands, and root masses of emergent vegetation along stream 
margins. These habitats tend to be shallow, clear, and cool, with 
moderate current and substrates composed of a combination of sand with 
silt, muck, gravel, or bedrock.
    The species is found in both urban and industrial zoned areas 
(Jefferson County) and rural settings (Winston and Etowah Counties). 
Within these areas, the rush darters' habitat has been degraded by 
alteration of stream banks and bottoms; channelization; inadequate 
storm water management; inappropriate placement of culverts, pipes, and 
bridges; road maintenance; and haphazard silvicultural and agricultural 
practices. The persistence of a constant flow of clean groundwater from 
various springs has somewhat offset the destruction of the species' 
habitat, water quality, and water quantity; however, the species' 
status still appears to be declining.

Yellowcheek Darter

    The yellowcheek darter (Etheostoma moorei) is endemic to the 
Devil's, Middle, South, and Archey forks of the Little Red River in 
Cleburne, Searcy, Stone, and Van Buren Counties in Arkansas (Robison 
and Buchanan 1988, p. 429). These streams are located primarily within 
the Boston Mountains subdivision of the Ozark Plateau. 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 Devil's Fork, Middle Fork, South Fork, and portions of 
the main stem Little Red River, thus extirpating the species from these 
reaches. Cold tailwater releases below the dam preclude the yellowcheek 
darter from inhabiting the main stem Little Red River. The yellowcheek 
darter inhabits high-gradient headwater tributaries with clear water; 
permanent flow; moderate to strong riffles; and gravel, cobble, and 
boulder substrates (Robison and Buchanan 1988, p. 429). Prey items 
consumed by yellowcheek darters include blackfly larvae, stoneflies, 
and mayflies.
    Robison and Harp (1981, p. 5) estimated the range of the 
yellowcheek darter in the South Fork to extend from 2.9 km (1.8 mi) 
north northeast of Scotland, Arkansas, to U.S. Highway 65 in Clinton, 
Arkansas. The Middle Fork population was estimated to extend from just 
upstream of U.S. Highway 65 near Leslie, Arkansas, to 4.8 km (3.0 mi) 
west of Shirley, Arkansas. The Archey Fork population extended from its 
confluence with South Castleberry Creek to immediately downstream of 
U.S. Highway 65 in Clinton, Arkansas. The Devil's Fork population 
extended from 4.8 km (3.0 mi) north of Prim, Arkansas, to 6.1 km (3.8 
mi) east southeast of Woodrow, Arkansas.
    The yellowcheek darter is threatened primarily by factors 
associated with the present destruction, modification, or curtailment 
of its habitat or range. Threats include sedimentation and nutrient 
enrichment from impoundment, water diversion, gravel mining, 
channelization or channel instability, and natural gas development.

Chucky Madtom

    The chucky madtom (Noturus crypticus) is a rare catfish found in 
Greene County, Tennessee. Specimens collected in Little Chucky Creek 
have been found in stream runs with slow to moderate current over pea 
gravel,

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cobble, or slab-rock boulder substrates (Burr and Eisenhour 1994, p. 
2). These habitats are 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).
    Little is known about chucky madtom lifehistory and behavior; 
however, this information is available for other similar members of the 
Noturus group. Dinkins and Shute (1996, p. 50) found smoky madtoms (N. 
baileyi) underneath slab-rock boulders 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 (N. fasciatus) in gravel, cobble, and slab-rock boulders 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 restricted to an 
approximate 3-km (1.8-mi) reach of Little Chucky Creek in Greene 
County, Tennessee. Degradation from sedimentation, physical habitat 
disturbance, and contaminants threaten the habitat and water quality on 
which the chucky madtom depends. Sedimentation could negatively affect 
the chucky madtom by reducing growth rates, disease tolerance, and gill 
function; reducing spawning habitat, reproductive success, and egg, 
larval, 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.

Laurel Dace

    The laurel dace (Chrosomus saylori) is endemic to seven streams on 
the Walden Ridge portion of the Cumberland Plateau (Bledsoe, Rhea, and 
Sequatchie Counties, Tennessee), where drainages generally meander 
eastward before dropping abruptly down the plateau escarpment and 
draining into the Tennessee River. Laurel dace are known historically 
from seven streams in three disjunct 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 (Youngs, Moccasin, and Bumbee Creeks). 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 had been extirpated from the stream (Skelton 1997, p. 
13; Skelton 2001, p. 126; Skelton 2009, pers. comm.).
    The current distribution of laurel dace encompasses six of seven 
historical streams; the species is considered extirpated from Laurel 
Branch (see above). In these six streams, the species is known to 
occupy reaches ranging in length from 0.3 to 8.0 km (0.2 to 5 mi). 
Laurel dace have been most often collected from pools or slow runs from 
undercut banks or beneath slab-rock boulders, typically in first or 
second order, clear, cool (maximum temperature 26 [deg]C or 78.8 
[deg]F) streams. Substrates in laurel dace streams 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).
    The primary threat to laurel dace throughout its range is excessive 
siltation resulting from agriculture and extensive silviculture, 
especially those involving inadequate riparian buffers in harvest areas 
and the failure to use best management practices (BMPs) during road 
construction. Severe degradation from sedimentation, physical habitat 
disturbance, and contaminants threaten the habitat and water quality on 
which the laurel dace depends. Sedimentation negatively affects the 
laurel dace by reducing growth rates, disease tolerance, and gill 
function; reducing spawning habitat, reproductive success, and egg, 
larvae, and juvenile development; reducing food availability through 
reductions in prey; and reducing foraging efficiency.

Previous Federal Action

    The Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace were listed as endangered under the Act on 
August 9, 2011 (76 FR 48722). In the June 24, 2010 proposed listing 
rule (75 FR 36035) for the five species 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 were unable to 
include a proposal to designate critical habitat with the final listing 
rule of the five species (76 FR 48722) due to an internal publishing 
requirement that proposed and final rules be separately published in 
the Federal Register. For the full history of previous federal actions 
regarding these five species, please refer to the final listing rule 
(76 FR 48722).

Critical Habitat

Background
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features.
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require

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implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features which are essential 
to the conservation of the species and which may require special 
management considerations or protection. Critical habitat designations 
identify, to the extent known using the best scientific and commercial 
data available, those physical and biological features that are 
essential to the conservation of the species (such as space, food, 
cover, and protected habitat), focusing on the principal biological or 
physical constituent elements (primary constituent elements) within an 
area that are essential to the conservation of the species (such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type). Primary constituent elements are the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life history 
processes, are essential to the conservation of the species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include articles in peer-reviewed journals, 
conservation plans developed by States and Counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah et al. 
2005, p. 4). Current climate change predictions for terrestrial areas 
in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 
1181). Climate change may lead to increased frequency and duration of 
severe storms and droughts (McLaughlin et al. 2002, p. 6074; Golladay 
et al. 2004, p. 504; Cook et al. 2004, p. 1015).
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of the location and magnitude of the effects. Nor are 
we currently aware of any climate change information specific to the 
habitat of the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, or laurel dace that would indicate what areas may become 
important to the species in the future. Therefore, we are unable to 
determine what additional areas, if any, may be appropriate to include 
in the final critical habitat for these species to address the effects 
of climate change.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.
Physical and Biological Features
    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical and biological 
features essential to the conservation of the species and which may 
require special management considerations or

[[Page 63364]]

protection. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distribution of a species.
    We derive the specific physical and biological features required 
for the Cumberland darter, rush darter, yellowcheek darter, chucky 
madtom, and laurel dace from studies of these species' habitats, 
ecology, and life history as described below. Additional information 
can be found in the final listing rule published in the Federal 
Register on August 9, 2011 (76 FR 48722). To identify the physical and 
biological features essential to the conservation of the these species, 
we have relied on current conditions at locations where the species 
survive, the limited information available on these species and their 
close relatives, as well as factors associated with the decline of 
other fishes that occupy similar habitats in the Southeast. We have 
determined that these five species require the following physical and 
biological features:
Space for Individual and Population Growth and for Normal Behavior

Cumberland Darter

    Little is known about the specific space requirements of the 
Cumberland darter; however, the species is typically found in low to 
moderate gradient, second- to fourth-order, geomorphically stable 
streams, where it occupies shallow pools or runs with gentle current 
over sand or sand-covered bedrock substrates with patches of gravel or 
debris (O'Bara 1991, p. 10; Thomas 2007, p. 4). Geomorphically stable 
streams transport sediment while maintaining their horizontal and 
vertical dimensions (width to depth ratio and cross-sectional area), 
pattern (sinuosity), and longitudinal profile (riffles, runs, and 
pools), thereby conserving the physical characteristics of the stream, 
including bottom features such as riffles, runs, and pools and the 
transition zones between these features. The protection and maintenance 
of these habitat features accommodate spawning, rearing, growth, 
migration, and other normal behaviors of the Cumberland darter.
    Limited information exists with regard to upstream or downstream 
movements of Cumberland darters; however, Winn (1958a, pp. 163-164) 
reported considerable pre-spawn movements for its closest relative, the 
Johnny darter. In Beer Creek, Monroe County, Michigan, Johnny darters 
migrated several miles between temporary stream habitats and permanent 
pools in downstream reaches. Recent capture data for tagged individuals 
in Cogur Fork, McCreary County, Kentucky, demonstrate that Cumberland 
darters may make similar movements (Thomas 2010, pers. comm.). 
Individuals tagged and released by the Kentucky Department of Fish and 
Wildlife Resources (KDFWR) and Conservation Fisheries, Inc. (CFI) 
traveled distances ranging from 0.4 to 0.7 km (0.2 to 0.4 mi) between 
their release date of September 22, 2010, and their recapture date of 
November 9, 2010 (period of 48 days) (Thomas 2010, pers. comm.). Over 
longer periods, it is likely that Cumberland darters can utilize stream 
reaches longer than 0.7 km (0.4 mi).
    The current range of the Cumberland darter has been reduced to 13 
streams (15 occurrences) due to destruction and fragmentation of 
habitat. Fragmentation of the species' habitat has subjected these 
small populations to genetic isolation, reduced space for rearing and 
reproduction, reduced adaptive capabilities, and an increased 
likelihood of local extinctions (Burkhead et al. 1997, pp. 397-399; 
Hallerman 2003, pp. 363-364). Genetic variation and diversity within a 
species are essential for recovery, adaptation to environmental change, 
and long-term viability (capability to live, reproduce, and develop) 
(Noss and Cooperrider 1994, pp. 282-297; Harris 1984, pp. 93-107; 
Fluker et al. 2007, p. 2). 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). Connectivity of these 
habitats is essential in preventing further fragmentation and isolation 
of Cumberland darter populations and promoting species movement and 
genetic flow between populations.
    Therefore, based on the information above, we identify shallow 
pools and runs and associated stream segments of geomorphically stable, 
second- to fourth-order streams to be a physical or biological feature 
for the Cumberland darter. The connectivity of these habitats is 
essential in accommodating feeding, breeding, growth, and other normal 
behaviors of the Cumberland darter and in promoting gene flow within 
the species.

Rush Darter

    Little is known about the specific space requirements of the rush 
darter in the Turkey Creek, Little Cove Creek, and Clear Creek systems 
(Boschung and Mayden 2004, p. 551); however, in general, darters depend 
on space within geomorphically stable streams with varying water 
quantities and flow. Specifically, rush darters appear to prefer 
springs and spring-fed reaches of relatively low-gradient, small 
streams (Bart and Taylor 1999, p. 32; Johnston and Kleiner 2001, pp. 3-
4; Stiles and Blanchard 2001, pp. 1-4; Bart 2002, p. 1; Fluker et al. 
2007, p. 1; Stiles and Mills 2008, pp. 1-4) and wetland pools (Stiles 
and Mills 2008, pp. 2-3). This species also relies heavily on aquatic 
vegetation (Fluker et al. 2007, p. 1) including: root masses of 
emergent vegetation along the margins of spring-fed streams in very 
shallow, clear, cool, and flowing water; and both small clumps and 
dense stands of bur reed (Sparganium sp.), coontail (Ceratophyllum 
sp.), watercress (Nasturtium officinale), and rush (Juncus sp.). The 
rush darter inhabits streams with substrates of silt, sand, sand and 
silt, muck and sand or some gravel with sand, and bedrock.
    Geomorphically stable streams transport sediment while maintaining 
their horizontal and vertical dimensions (width to depth ratio and 
cross-sectional area), pattern (sinuosity), and longitudinal profile 
(riffles, runs, and pools), thereby conserving the physical 
characteristics of the stream, including bottom features such as 
riffles, runs, and pools and the transition zones between these 
features that contain some silt, sand, and finer substrates. The 
riffles, runs, and pools not only provide space for the rush darter, 
but also provide space for emergent vegetation in shallow water along 
the margins of the small streams and springs for cover, and shelter 
necessary for breeding, reproduction, and growth of offspring.
    The current range of the rush darter within the entire Turkey 
Creek, Clear Creek, and Little Cove Creek watersheds is reduced to 
localized sites due to fragmentation, separation, and destruction of 
rush darter habitats and populations. There are dispersal barriers 
(pipes and culverts for road crossings; channelized stream segments; 
and emergent aquatic plant control, which eliminates cover habitat for 
the species) that may contribute to the separation and isolation of 
rush darter populations and affect water quality. Fragmentation

[[Page 63365]]

of the species' habitat has isolated populations and reduced available 
spaces for rearing and reproduction, thereby reducing adaptive 
capability and increasing the likelihood of local extinctions (Burkhead 
et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic 
variation and diversity within a species are essential for recovery, 
adaptation to environmental changes, and long-term viability 
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; 
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). 
Long-term viability is founded on numerous interbreeding, local 
populations throughout the range (Harris 1984, pp. 93-107). Continuity 
of water flow between suitable habitats is essential in preventing 
further fragmentation of the species' habitat and populations, 
conserving the essential emergent vegetation in shallow water on the 
margins of small streams and springs, and promoting genetic flow 
throughout the populations. Continuity of habitat will maintain 
spawning, foraging, and resting sites, and allow for gene flow 
throughout the population. Connectivity of habitats, as a whole, also 
permits improvement in water quality and water quantity by allowing 
unobstructed water flow throughout the connected habitats.
    Therefore, based on the information above, we identify springs and 
spring-fed reaches of relatively low-gradient, geomorphically stable 
streams with emergent vegetation to be a physical or biological feature 
for the rush darter. The connectivity of these habitats is essential in 
accommodating feeding, breeding, growth, and other normal behaviors of 
the rush darter and in promoting gene flow within the species.

Yellowcheek Darter

    The yellowcheek darter is typically found in clear, high-gradient, 
second- to fifth-order, geomorphically stable streams, maintaining 
permanent year-round flows (Robison and Buchanan 1988, p. 429). The 
species occupies riffles with moderate to fast current over gravel, 
cobble, and boulder substrates (Robison and Buchanan 1988, p. 429). 
Geomorphically stable streams transport sediment while maintaining 
their horizontal and vertical dimensions (width to depth ratio and 
cross-sectional area), pattern (sinuosity), and longitudinal profile 
(riffles, runs, and pools), thereby conserving the physical 
characteristics of the stream, including bottom features such as 
riffles, runs, and pools and the transition zones between these 
features. The protection and maintenance of these habitat features 
accommodate spawning, rearing, growth, migration, and other normal 
behaviors of the yellowcheek darter.
    In 1962, the construction of Little Red River Dam to create Greers 
Ferry Reservoir impounded much of the range of the yellowcheek darter, 
including the lower reaches of Devil's Fork, Middle Fork, South Fork, 
and portions of the main stem Little Red River, thus extirpating the 
species from these reaches. The 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 genetic isolation of populations (McDaniel 1984, p. 
1), with only the South and Archey forks of the Little Red River 
maintaining a non-inundated confluence.
    As stated earlier, of the four streams supporting the yellowcheek 
darter, only the South and Archey forks maintain a non-inundated 
confluence. Instream habitat at the confluence of the two streams is 
suboptimal due to previous channelization, but restoration could 
provide an opportunity for vital population interactions between 
streams to maintain genetic diversity. Fragmentation of the species' 
habitat has subjected these small populations to genetic isolation, 
reduced space for rearing and reproduction, reduced adaptive 
capabilities, and an increased likelihood of local extinctions 
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). 
Genetic variation and diversity within a species are essential for 
recovery, adaptation to environmental change, and long-term viability 
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; 
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). 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). Connectivity of these habitats is essential to 
prevent further fragmentation and isolation of yellowcheek darter 
populations and to promote species movement and genetic flow between 
populations.
    Therefore, based on the information above, we identify riffles of 
geomorphically stable, second- to fifth-order streams to be a physical 
or biological feature for the yellowcheek darter. The connectivity of 
these habitats is essential to accommodate feeding, breeding, growth, 
and other normal behaviors of the yellowcheek darter and to promote 
gene flow within the species.

Chucky Madtom

    Little is known about the specific space requirements of the chucky 
madtom; however, all of the specimens collected in Little Chucky Creek 
have been found in shallow pool and run habitats with slow to moderate 
current over pea gravel, cobble, or slab-rock boulder substrates (Burr 
and Eisenhour 1994, p. 2). Geomorphically stable streams transport 
sediment while maintaining their horizontal and vertical dimensions 
(width to depth ratio and cross-sectional area), pattern (sinuosity), 
and longitudinal profile (riffles, runs, and pools), thereby conserving 
the physical characteristics of the stream, including bottom features, 
such as riffles, runs, and pools and the transition zones between these 
features. The protection and maintenance of these habitat features 
accommodate spawning, rearing, growth, migration, and other normal 
behaviors of the chucky madtom.
    The current range of the chucky madtom has been reduced to only one 
stream due to fragmentation and destruction of habitat. Habitat 
fragmentation has subjected the small population to genetic isolation, 
reduced space for rearing and reproduction, reduced adaptive 
capabilities, and increased the likelihood of extinction (Burkhead et 
al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). Genetic variation 
and diversity within a species are essential for recovery, adaptation 
to environmental change, and long-term viability (capability to live, 
reproduce, and develop) (Harris 1984, pp. 93-107; Noss and Cooperrider 
1994, pp. 282-297; Fluker et al. 2007, p. 2). 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). 
Connecting instream habitats is essential in preserving the genetic 
viability of the chucky madtom in Little Chucky Creek.
    Therefore, based on the information above, we identify shallow 
pools and runs of geomorphically stable streams to be a physical or 
biological feature for the chucky madtom. The connectivity of these 
habitats is essential to accommodate feeding, breeding, growth, and 
other normal behaviors of the chucky madtom and to promote gene flow 
within the species.

Laurel Dace

    Little is known about the specific space requirements of the laurel 
dace; however, the species is typically found in low to moderate 
gradient, first- to second-order, geomorphically stable

[[Page 63366]]

streams. The laurel dace occupies pools or slow runs beneath undercut 
banks or slab-rock boulders in clear, cool (maximum temperature 26 
[deg]C (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).
    Geomorphically stable streams transport sediment while maintaining 
their horizontal and vertical dimensions (width to depth ratio and 
cross-sectional area), pattern (sinuosity), and longitudinal profile 
(riffles, runs, and pools), thereby conserving the physical 
characteristics of the stream, including bottom features such as 
riffles, runs, and pools and the transition zones between these 
features. The protection and maintenance of these habitat features 
accommodate spawning, rearing, growth, migration, and other normal 
behaviors of the laurel dace.
    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.
    The current range of the laurel dace has been reduced to short 
reaches (approximately 0.3 to 8 km (0.2 to 5 mi) in length) of six 
streams due to fragmentation and destruction of habitat. Fragmentation 
of the species' habitat has subjected these small populations to 
genetic isolation, reduced space for rearing and reproduction, reduced 
adaptive capabilities, and an increased likelihood of local extinctions 
(Burkhead et al. 1997, pp. 397-399; Hallerman 2003, pp. 363-364). 
Genetic variation and diversity within a species are essential for 
recovery, adaptation to environmental change, and long-term viability 
(capability to live, reproduce, and develop) (Harris 1984, pp. 93-107; 
Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 2007, p. 2). 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). Connectivity of these habitats is essential in 
preventing further fragmentation and isolation of laurel dace 
populations.
    Therefore, based on the information above, we identify shallow 
pools and runs and associated stream segments of geomorphically stable, 
first- to second-order streams with riparian vegetation to be a 
physical or biological feature for the laurel dace. The connectivity of 
these habitats is essential in accommodating feeding, breeding, growth, 
and other normal behaviors of the laurel dace and in promoting gene 
flow within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

Cumberland Darter

    Feeding habits of the Cumberland darter are unknown but are likely 
similar to that of its sister species, the Johnny darter (E. nigrum 
Rafinesque). Johnny darters are diurnal sight feeders, with prey items 
consisting of midge larvae, mayfly nymphs, caddisfly larvae, and 
microcrustaceans (Kuehne and Barbour 1983, p. 104; Etnier and Starnes 
1993, p. 511). Similar to other darters, juvenile Cumberland darters 
likely feed on planktonic organisms or other small invertebrates.
    Like most other darters, the Cumberland darter depends on perennial 
stream flows that create suitable habitat conditions needed for 
successful completion of its life cycle. An ample supply of flowing 
water provides a means of transporting nutrients and food items, 
moderating water temperatures and dissolved oxygen levels, removing 
fine sediments that could damage spawning or foraging habitats, and 
diluting nonpoint source pollutants. Water withdrawals do not represent 
a significant threat to the species, but the species is faced with 
occasional low-flow conditions that occur during periods of drought. 
One such event occurred in the summer and fall of 2007 when recorded 
streamflows in the upper Cumberland River basin of Kentucky and 
Tennessee (USGS Station Number 03404000) were among the lowest monthly 
values of the last 67 years (Cinotto 2008, pers. comm.).
    Water quality is also important to the persistence of the 
Cumberland darter. The species requires relatively clean, cool, flowing 
water to successfully complete its life cycle, but specific water 
quality requirements (such as temperature, dissolved oxygen, pH, and 
conductivity) that define suitable habitat conditions for the 
Cumberland darter have not been determined. In general, optimal water 
quality conditions for fishes and other aquatic organisms are 
characterized by moderate stream temperatures, acceptable dissolved 
oxygen concentrations, and the lack of harmful levels of pollutants, 
such as inorganic contaminants like iron, manganese, selenium, and 
cadmium; organic contaminants such as human and animal waste products; 
pesticides and herbicides; nitrogen, potassium, and phosphorus 
fertilizers; and petroleum distillates.
    Sediment is the most common pollutant within the upper Cumberland 
River system (KDOW 1996, pp. 50-53, 71-75; 2002, pp. 39-40; 2006, pp. 
178-185), and the primary sources of sediment include resource 
extraction (e.g., coal mining, silviculture, natural gas development), 
agriculture, road construction, and urban development (Waters 1995, pp. 
2-3; Skelton 1997, pp. 17, 19; KDOW 2006, pp. 178-185; Thomas 2007, p. 
5). Siltation (excess sediments suspended or deposited in a stream) has 
been shown to abrade and suffocate bottom-dwelling organisms; 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). O'Bara (1991, p. 11) reported that Cumberland 
darter habitats are very susceptible to siltation because of the 
habitat's low to moderate gradient, low velocity, and shallow depth. 
O'Bara (1991, p. 11) concluded that siltation was the major limiting 
factor for the species' continued existence and its ability to colonize 
new stream systems.
    Cumberland darters are threatened by water quality degradation 
caused by a variety of nonpoint source pollutants. Coal mining 
represents a major source of nonpoint source pollutants (O'Bara 1991, 
p. 11; Thomas 2007, p. 5), because it has the potential to contribute 
high concentrations of dissolved metals and other solids that lower 
stream pH or lead to elevated levels of stream conductivity (Pond 2004, 
pp. 6-7, 38-41; Mattingly et al. 2005, p. 59). These impacts have been 
shown to negatively affect fish species, including listed species, in 
the Clear Fork system of the Cumberland basin (Weaver 1997, pp. 29; 
Hartowicz 2008, pers. comm.). The direct effect of elevated stream 
conductivity on fishes, including the Cumberland darter, is poorly 
understood, but some species, such as blackside dace (Chrosomus 
cumberlandensis), have shown declines in abundance over time as 
conductivity increased in streams affected by mining (Hartowicz 2008, 
pers. comm.). Other nonpoint 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

[[Page 63367]]

chemicals associated with oil and gas development. Nonpoint 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 negatively impact aquatic species (KDOW 1996, pp. 
48-50; 2006, pp. 70-73).
    Therefore, based on the information above, we identify aquatic 
macroinvertebrate prey items; permanent surface flows, as measured 
during average rainfall years; and adequate water quality with 
substrates that are relatively silt-free to be physical or biological 
features for the Cumberland darter. Relatively silt-free is defined for 
the purpose of this rule as silt or fine sand within interstitial 
spaces of substrates in amounts low enough to have minimal impact to 
the species.

Rush Darter

    Feeding habits of the rush darter are unknown but are likely 
similar to that of its sister species, the goldstripe darter 
(Etheostoma parvipinnis). The goldstripe darter is a benthic (bottom) 
insectivore and is known to consume midge larvae, mayfly nymphs, 
blackfly larvae, beetles, and microcrustaceans (Mettee et al. 1996, p. 
655). Variations in instream flows maintain the stream bottom 
substrates, providing oxygen and other attributes to various 
invertebrate life stages. Sedimentation has been shown to wear away and 
suffocate periphyton (organisms that live attached to objects 
underwater) and disrupt aquatic insect communities (Waters 1995, pp. 
53-86; Knight and Welch 2001, pp. 132-135). In addition, nutrification 
promotes heavy algal growth that covers and eliminates the clean rock 
or gravel habitats necessary for rush darter feeding. Thus, a decrease 
in water quality and instream flow would correspondingly cause a 
decline in the major food species for the rush darter.
    Much of the cool, clean water provided to the Turkey Creek system 
(Beaver Creek, Unnamed Tributary to Beaver Creek, Tapawingo or Penny 
Springs and the Highway 79 site; Jefferson County) and Cove Spring run 
of Little Cove Creek (Etowah County) comes from consistent and steady 
groundwater sources (springs and seeps). Clear, flowing water provides 
a means for transporting nutrients and food items, moderating water 
temperatures and dissolved oxygen levels, and diluting nonpoint and 
point source pollution. Without clean water sources, water quality and 
water quantity would be considerably lower and would significantly 
impair the normal life stages and behavior of the rush darter.
    Favorable water quantity for the rush darter includes moderate 
water velocity in riffles and no flow or low flow in pools (Stiles and 
Mills 2008, pp. 1-4), a continuous daily discharge that allows for 
longitudinal connectivity within the species' habitat (Instream Flow 
Council 2004, p. 117), and discharge from both surface water runoff and 
groundwater sources (springs and seepages). Along with the continuous 
daily discharge, both minimum and flushing flows are necessary to 
remove fine sediments and dilute other pollutants (Moffett and Moser 
1978, pp. 20-21; Gilbert et al., eds. 1994, pp. 505-522; Instream Flow 
Council 2004, pp.103-104; Drennen 2009, pers. obs.). At some sites, 
water depth ranges from 3.0 to 50 cm (0.1 to 1.6 ft). Groundwater 
provides a constant source of flows to dilute pollutants and maintain 
water quality for the persistence of the rush darter.
    Factors that can potentially alter water quality include: droughts 
and periods of low seasonal flow, precipitation events, nonpoint source 
runoff, human activities within the watershed, random spills, 
unregulated stormwater discharge events (Instream Flow Council 2004, 
pp. 29-50), and water extraction. Instream pooling may also affect 
water quality by reducing water flow, altering temperatures, 
concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36), and 
retarding aquatic and emergent vegetation growth.
    Fishes require acceptable levels of dissolved oxygen. Generally, 
among fishes, the young life forms require more dissolved oxygen and 
are the most sensitive. The amount of dissolved oxygen that is present 
in the water (the saturation level) depends upon water temperature. As 
water temperature increases, the saturated dissolved oxygen level 
decreases. The more oxygen there is in the water, the greater the 
assimilative capacity (ability to consume organic wastes with minimal 
impact) of that water; lower water flows have a reduced assimilative 
capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical 
environment occupied by fishes; extended low-flow conditions coupled 
with higher pollutant levels could likely result in behavioral changes 
within all life stages, which could be particularly detrimental to 
early life stages (e.g., embryo, larvae, and juvenile).
    Optimal water quality lacks harmful levels of pollutants, such as 
inorganic contaminants like copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorous fertilizers; and petroleum distillates (Alabama Department 
of Environmental Management (ADEM) 1996, pp. 13-15). Sediment is the 
most abundant pollutant produced in the Mobile River Basin (ADEM 1996, 
pp. 13-15). Siltation (excess sediments suspended or deposited in a 
stream) contributes to turbidity of the water and has been shown to 
reduce photosynthesis in aquatic plants, suffocate aquatic insects, 
smother fish eggs, clog fish gills, and may fill in essential 
interstitial spaces (spaces between stream substrates) used by aquatic 
organisms for spawning and foraging; therefore, excessive siltation 
negatively impacts fish growth, physiology, behavior, reproduction, and 
survival. Nutrification (excessive nutrients present, such as nitrogen 
and phosphorous) promotes heavy algal growth that covers and eliminates 
clean rock or gravel habitats and aquatic and emergent vegetation, 
necessary for rush darter feeding and spawning. Generally, early life 
stages of fishes are less tolerant of environmental contamination than 
adults or juveniles (Little et al. 1993, p. 67). Appropriate water 
quality and quantity are necessary to dilute impacts from stormwater 
and other non-natural effluents. Harmful levels of pollutants impair 
critical behavior processes in fishes, as reflected in population-level 
responses (reduced population size, biomass, year class success, etc.). 
However, excessive water quantity in the form of substantial stormwater 
runoff may destabilize and move bottom and bankside substrates and 
increase instream sedimentation.
    Essential water quality attributes for darters and other fish 
species in fast to medium water flow streams include the following: 
dissolved oxygen levels greater than 6 parts per million (ppm), 
temperatures between 7 and 26.7 [deg]C (45 and 80 [deg]F) with spring 
egg incubation temperatures from 12.2 to 18.3 [deg]C (54 to 65 [deg]F), 
a specific conductance (ability of water to conduct an electric 
current, based on dissolved solids in the water) of less than 
approximately 225 micro Siemens per cm at 26.7 [deg]C (80 [deg]F), and 
low concentrations of free or suspended solids (organic and inorganic 
sediments) less than 10 Nephelometric Turbidity Units (NTU; units used 
to measure sediment discharge) and 15 milligrams/Liter (mg/L) Total 
Suspended Solids (TSS; measured as mg/L of sediment in water) (Teels et 
al. 1975, pp. 8-9;

[[Page 63368]]

Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp. 131-138; 
Kundell and Rasmussen 1995, pp. 211-212; Henley et al. 2000, pp. 125-
139; Meyer and Sutherland 2005, pp. 43-64).
    Therefore, based on the information above, we identify cool, clean, 
flowing water; shallow depths; moderate water velocity in riffles and 
low flow in pools; aquatic macroinvertebrate prey items; and adequate 
water quality to be physical or biological features for the rush 
darter.

Yellowcheek Darter

    Adult and juvenile yellowcheek darters' prey items include blackfly 
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae among 
other stream insects (McDaniel 1984, p. 56). McDaniel (1984, p. 37) 
noted a strong selectivity by yellowcheek darters for fly larvae year 
round, while other prey taxa were consumed proportionally depending on 
seasonal availability. Larval stages of yellowcheek darters have not 
been studied in the field but are assumed to feed on planktonic 
organisms based on laboratory rearing efforts and known larval fish 
dietary habits.
    Drought conditions and low water levels have been identified as 
contributing factors in the decline of the yellowcheek darter (Wine et 
al. 2000, p. 11). Expanding natural gas development activities that 
began in the upper Little Red River watershed in 2005 require large 
quantities of water and pose a threat to the continued existence of the 
yellowcheek darter (75 FR 36045, June 24, 2010). Water diversion from 
the Middle and South forks has increased in recent years due to large-
scale extraction of natural gas in the Fayetteville Shale (which 
encompasses nearly all of the upper Little Red River drainage). Natural 
gas development is imminent in the Archey and Devil's forks as well and 
is predicted to affect numerous tributaries in all four watersheds. 
Because the yellowcheek darter requires permanent flows with moderate 
to strong current (Robison and Buchanan 1988, p. 429), seasonal 
fluctuations in stream flows exacerbated by water diversion for natural 
gas, agricultural, municipal or other land uses represent a serious 
threat to the species.
    In addition to water quantity, water quality is also important to 
the persistence of the yellowcheek darter. Although the Middle Fork is 
designated as an Extraordinary Resource Water, it is listed as impaired 
along a 33.5-km (20.8-mi) reach due to fecal coliform bacteria 
contamination according to the Arkansas Department of Environmental 
Quality (ADEQ) List of Impaired Waterbodies. This same report listed a 
3.2-km (2.0-mi) stretch of the South Fork as impaired due to elevated 
mercury levels (ADEQ 2010, p. 22). Boston Mountain streams that support 
the yellowcheek darter are typically characterized by adequate water 
quality; however, increasing activity within the watersheds related to 
resource extraction, urban development, and other human related 
activities is reason for concern regarding the recovery potential of 
the yellowcheek darter.
    Therefore, based on the information above, we identify aquatic 
macroinvertebrate prey items; permanent surface flows, as measured 
during average rainfall years; moderate to strong water velocity in 
riffles; and adequate water quality to be physical or biological 
features for the yellowcheek darter.

Chucky Madtom

    The chucky madtom's prey items are unknown; however, least madtom 
(N. hildebrandi) 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, followed by fly, mosquito, 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.
    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, nonpoint 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 City of Greeneville also discharges 
sediments and contaminants into the creek, thereby threatening the 
chucky madtom. Wood and Armitage (1997, pp. 211-212) identify at least 
five impacts of sedimentation on fish, including: (1) Reduction of 
growth rate, disease tolerance, and gill function; (2) reduction of 
spawning habitat and egg, larvae, and juvenile development; (3) 
modification of migration patterns; (4) reduction of food availability 
through the blockage of primary production; and (5) reduction of 
foraging efficiency.
    Water quality is important to the persistence of the chucky madtom. 
The species requires relatively clean, cool, flowing water to 
successfully complete its life cycle, but specific water quality 
requirements (such as temperature, dissolved oxygen, pH, and 
conductivity) that define suitable habitat conditions for the chucky 
madtom have not been determined. In general, optimal water quality 
conditions for fishes and other aquatic organisms are characterized by 
moderate stream temperatures and acceptable dissolved oxygen 
concentrations, and they lack harmful levels of pollutants, such as 
inorganic contaminants like iron, manganese, selenium, and cadmium; 
organic contaminants such as human and animal waste products; 
pesticides and herbicides; nitrogen, potassium, and phosphorus 
fertilizers; and petroleum distillates.
    As relatively sedentary animals, madtoms must tolerate the full 
range of such parameters that occur naturally within the streams where 
they persist. Both the amount of water (flow) and its physical and 
chemical conditions (water quality) vary widely according to seasonal 
precipitation events and seasonal human activities within the 
watershed. In general, the species survives in areas where the 
magnitude, frequency, duration, and seasonality of water flow is 
adequate to remove fine particles and sediments (silt-free) without 
causing degradation, and where water quality is adequate for year-round 
survival (for example, moderate to high levels of dissolved oxygen, low 
to moderate input of nutrients, and relatively unpolluted water and 
sediments). Relatively silt-free is defined for the purpose of this 
rule as silt or fine sand within interstitial spaces of substrates in 
amounts low enough to have minimal impact to the species.
    Therefore, based on the information above, we identify aquatic 
macroinvertebrate prey items; cool, clean, flowing water; shallow 
depths; permanent surface flows, as measured during average rainfall 
years; and adequate water quality with substrates that are relatively 
silt-free to be physical or biological features for the chucky madtom.

Laurel Dace

    The laurel dace's 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 a large 
mouth, short digestive tract, reduced number of pharyngeal (located 
within the throat) teeth, and primitively shaped basioccipital bone 
(bone that articulates the vertebra), are consistent

[[Page 63369]]

with a diet consisting largely of animal material.
    Strange and Skelton (2005, p. 7 and Appendix 2) identified 
siltation as a threat in all of the occupied Piney River tributaries 
(Youngs, Moccasin, and Bumbee Creeks). The Bumbee Creek type locality 
for the laurel dace is located within industrial forest that has been 
subjected to extensive clear-cutting and road construction in close 
proximity to the stream. Strange and Skelton (2005, p. 7) noted a heavy 
sediment load at this locality and commented that conditions there in 
2005 had deteriorated since the site was visited by Skelton in 2002. In 
general, the species occupies areas that are relatively silt-free. 
Relatively silt-free is defined for the purpose of this rule as silt or 
fine sand within interstitial spaces of substrates in amounts low 
enough to have minimal impact to the species.
    Strange and Skelton (2005, pp. 7 and 8 and Appendix 2) also 
commented on excessive siltation in localities they sampled on Youngs 
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 quality is important to the persistence of the laurel dace. 
The species requires relatively clean, cool, flowing water to 
successfully complete its life cycle, but specific water quality 
requirements (such as temperature, dissolved oxygen, pH, and 
conductivity) that define suitable habitat conditions for the laurel 
dace have not been determined. In general, optimal water quality 
conditions for fishes and other aquatic organisms are characterized by 
moderate stream temperatures and acceptable dissolved oxygen 
concentrations, and they lack harmful levels of pollutants, such as 
inorganic contaminants like iron, manganese, selenium, and cadmium; 
organic contaminants such as human and animal waste products; 
pesticides and herbicides; nitrogen, potassium, and phosphorus 
fertilizers; and petroleum distillates.
    Other factors that can potentially alter water quality and quantity 
are droughts and periods of low flow, nonpoint source run-off from 
adjacent land surfaces (for example, excessive amounts of nutrients, 
pesticides, and sediment), and random spills or unregulated discharge 
events. Run-off or discharges could be particularly harmful during 
drought conditions when flows are depressed and pollutants are more 
concentrated. Adequate water quality is essential for normal behavior, 
growth, and viability during all life stages of the laurel dace. 
Adequate water quantity and flow and good to optimal water quality are 
essential for normal behavior, growth, and viability during all life 
stages. Culverts, pipes, and bridge or road maintenance sites within 
the watersheds serve as dispersal barriers and have altered stream 
flows from natural conditions.
    Other nonpoint source pollutants that affect the laurel dace 
include domestic sewage (through septic tank leakage or straight pipe 
discharges); agricultural pollutants such as fertilizers, pesticides, 
herbicides, and animal waste. There are no active coal mines within the 
range of the laurel dace; however, coal mining represents a potential 
threat to the species in the foreseeable future. Coal mining represents 
a major source of nonpoint source pollutants 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). 
The direct effect of elevated stream conductivity on fishes, including 
the laurel dace, is poorly understood, but some species, such as 
blackside dace, have shown declines in abundance over time as 
conductivity increased in streams affected by mining (Hartowicz 2008, 
pers. comm.).
    Water temperature may also 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 sp.), 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 2008, pers. comm.). Riparian buffers 
filter sediment and nutrients from overland runoff, allow water to soak 
into the ground, protect stream banks and lakeshores, and provide shade 
for streams. Because eastern hemlock is primarily found in riparian 
areas, the loss of this species adjacent to laurel dace streams would 
be detrimental to fish habitat.
    Therefore, based on the information above, we identify aquatic 
macroinvertebrate prey items; cool, clean, flowing water; shallow 
depths; permanent surface flows, as measured during average rainfall 
years; and adequate water quality with substrates that are relatively 
silt-free to be physical or biological features for the laurel dace.
Cover or Shelter

Cumberland Darter

    Cumberland darters depend on specific habitats and bottom 
substrates for normal life processes such as spawning, rearing, 
resting, and foraging. As described above, the species' preferred 
habitats (shallow pools and runs) are dominated by sand or sand-covered 
bedrock with patches of gravel or debris (Thomas 2007, p. 4). 
Individuals were observed by O'Bara (1991, p. 10) and Thomas (2007, p. 
4) in gently flowing runs or pools at depths ranging from 20 to 76 cm 
(average 36.2 cm) (3.9 to 30 in, average 14.3 in). Most of these 
habitats contain isolated boulders and large cobble that the species 
likely uses as cover. According to O'Bara (1991, p. 11), areas used by 
the Cumberland darter for cover and shelter are very susceptible to the 
effects of siltation, and the presence of relatively silt-free 
substrates is the major limiting factor for both the species' continued 
existence and its ability to colonize new habitats. Relatively silt-
free is defined for the purpose of this rule as silt or fine sand--
within interstitial spaces of substrates in amounts low enough to have 
minimal impact to the species.
    Therefore, based on the information above, we identify stable, 
shallow pools and runs with relatively silt-free sand, sand-covered 
bedrock substrates, and isolated boulders and large cobble substrates 
to be a physical or biological feature for the Cumberland darter.

Rush Darter

    Rush darters depend on specific stream substrates and stream 
margins consisting of aquatic vegetation for normal and robust life 
processes such as spawning, rearing, protection of young, protection of 
adults when threatened, foraging, and feeding. Preferred substrates are 
dominated by fine gravel, with lesser amounts of sand, fine silt, 
coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24-26; 
Drennen 2009, pers. obs.). In addition to these preferred substrates, 
rush darters generally prefer aquatic emergent

[[Page 63370]]

vegetation such as watercress (Nasturtium officinale), parrots feather 
(Myriophyllum sp.), rushes (Juncus spp.), and sedges (Carex spp.). This 
emergent vegetation is utilized by the rush darter, especially in the 
quiet water along stream margins and in ephemeral pools and tributaries 
(Boschung and Mayden 2004, p. 552; Stiles 2011, pers. comm.).
    Excessive siltation of gravel substrates removes foraging and 
feeding sites for the rush darter (Sylte and Fischenich 2002, pp. 1-
25), and eliminates conditions necessary for some aquatic plant species 
to flourish. Similarly, excessive nutrients promote dense filamentous 
algae growth on the substrate and within the water column (Drennen 
2007, pers. obs.; Stiles 2011, pers. comm.), which may restrict rush 
darter habitat for foraging and spawning (Stiles 2011, pers. comm.).
    Stormwater flows may result in scouring and erosion of important 
cover and shelter sites for the rush darter. Conversely, drought 
conditions render the darter populations vulnerable to higher water 
temperatures and restricted habitat, especially during the breeding 
season when they concentrate in wetland pools and shallow pools of 
headwater streams (Fluker et al 2007, p. 10).
    Therefore, based on the information above, we identify quiet water 
along stream margins and in shallow ephemeral pools and headwater 
tributaries; aquatic emergent vegetation; a combination of silt, sand, 
and gravel substrates; and seasonal stream flows sufficient to provide 
connectivity and to remove excessive sediment covering the vegetation 
and stream bottom substrates to be a physical or biological feature for 
the rush darter.

Yellowcheek Darter

    Summertime habitat selected by the yellowcheek darter includes 
high-velocity (greater than 0.4 meters per second or 1.3 feet per 
second) water over 8 to 128 millimeters (mm) (0.3 to 5.0 in) gravel and 
cobble substrate at depths of 11 to 30 cm (4.3 to 11.8 in) (Brophy and 
Stoeckel 2006, p. 42), which lends evidence to the suggestion by other 
researchers that it is a ``riffle-obligate'' species and is unlikely to 
occupy pool or run habitats when riffles are available. Preferred water 
depths for yellowcheek darters ranged between 11 and 30 cm (4.3 and 
11.8 in), but yellowcheek darters have been found in shallower water, 
when greater depths with suitable velocities were scarce. Gravel and 
cobble from 8 to 128 mm (0.3 to 5.0 in) median diameter appears to be 
the important substrate type for yellowcheek darter (Brophy and 
Stoeckel 2006, p. 42). Larger boulder substrates are important during 
spring spawning periods (McDaniel 1984, p. 82). Siltation (excess 
sediments suspended or deposited in a stream) contributes to turbidity 
of the water and has been shown to suffocate aquatic insects, smother 
fish eggs, clog fish gills, and may fill in essential interstitial 
spaces (spaces between stream substrates) used by aquatic organisms for 
spawning and foraging; therefore, excessive siltation negatively 
impacts fish growth, physiology, behavior, reproduction, and survival. 
In general, the species occupies areas that are relatively silt-free. 
Relatively silt-free is defined for the purpose of this rule as silt or 
fine sand within interstitial spaces of substrates in amounts low 
enough to have minimal impact to the species.
    Therefore, based on the information above, we identify high-quality 
riffle substrates that are relatively silt-free and contain a mixture 
of gravel, cobble, and boulder substrates to be a physical or 
biological feature for the yellowcheek darter.

Chucky Madtom

    While nothing is known specifically about chucky madtom habitat 
preferences, available information for other similar members of the 
Noturus group is known. Both smoky and elegant madtoms (N. elegans) 
were found to nest under flat rocks (slab-rock boulders) at or near the 
head of riffles (Burr and Dimmick 1981, p. 116; Dinkins and Shute 1996, 
p. 56). Smoky madtoms have also been observed using shallow pools and 
to select rocks of larger dimension for nesting than were used for 
shelter during other times of year (Dinkins and Shute 1996, p. 56). 
Siltation (excess sediments suspended or deposited in a stream) 
contributes to turbidity of the water and has been shown to smother 
fish eggs, clog fish gills, and may fill in essential interstitial 
spaces (spaces between stream substrates) used by aquatic organisms for 
spawning and foraging; therefore, excessive siltation negatively 
impacts fish growth, physiology, behavior, reproduction, and survival.
    Dinkins and Shute (1996, p. 50) found smoky madtoms underneath 
slab-rock boulders 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 boulder substrates in riffle habitats with depths 
ranging from 0.1 to 0.3 m (0.33 to 0.98 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.
    Therefore, based on the information above, we identify gently 
flowing runs and pools with relatively silt-free flat gravel, cobble, 
and slab-rock boulder substrates to be a physical or biological feature 
for the chucky madtom.

Laurel Dace

    Laurel dace have been most often collected from pools or slow runs 
from undercut banks or beneath slab-rock boulders, typically in first- 
or second- order, clear, cool (maximum recorded 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 boulder and 
the streams tend to have a dense riparian zone consisting largely of 
mountain laurel (Skelton 2001, pp. 125-126). Siltation (excess 
sediments suspended or deposited in a stream) contributes to turbidity 
of the water and has been shown to smother fish eggs, clog fish gills, 
and may fill in essential interstitial spaces (spaces between stream 
substrates) used by aquatic organisms for spawning and foraging; 
therefore, excessive siltation negatively impacts fish growth, 
physiology, behavior, reproduction, and survival.
    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). 
Riparian buffers filter sediment and nutrients from overland runoff, 
allow water to soak into the ground, protect stream banks and 
lakeshores, and provide shade for streams. The hemlock woolly adelgid 
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 2008, pers. 
comm.). 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

[[Page 63371]]

road crossings in most of the streams inhabited by laurel dace may 
disrupt upstream dispersal within those systems (Chance 2008, pers. 
obs.). Such dispersal barriers could prevent re-establishment of laurel 
dace populations in reaches where they suffer localized extinctions due 
to natural or human-caused events.
    Therefore, based on the information above, we identify stream 
connectivity, gently flowing runs and pools with relatively silt-free 
cobble and slab-rock boulder substrates with undercut banks, and canopy 
cover to be a physical or biological feature for the laurel dace.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

Cumberland Darter

    Little is known regarding the reproductive habits of the Cumberland 
darter. Thomas (2007, p. 4) reported the collection of male Cumberland 
darters in breeding condition in April and May, with water temperatures 
ranging from 15 to 18 [deg]C (59 to 64 [deg]F). Extensive searches by 
Thomas (2007, p. 4) produced no evidence of nests or eggs at these 
sites. Reproductive habits of its closest relative, the Johnny darter, 
have been well studied by Winn (1958a, pp. 163-183; 1958b, pp. 205-
207), Speare (1965, pp. 308-314), and Bart and Page (1991, pp. 80-86). 
Spawning occurs from April to June, with males migrating to spawning 
areas prior to females and establishing territories at selected 
spawning sites. Males establish a nest under a submerged object 
(boulder or woody debris) by using fin movements to remove silt and 
fine debris. Females enter the nests, the spawning pair inverts, and 
females deposit between 40 and 200 adhesive eggs on the underside of 
the nest object. Males care for the nest by periodically fanning the 
area to remove silt. The eggs hatch in about 6 to 16 days, depending on 
water temperature. Hatchlings are about 5 mm (0.2 in) and reach 29 to 
38 mm (1.1 to 1.5 in) at age 1. Given these specialized reproductive 
behaviors, it is apparent that the Cumberland darter requires second- 
to fourth-order streams containing gently flowing run and pool habitats 
with sand and bedrock substrates, boulders, woody debris, or other 
cover and that are relatively silt-free. It is essential to maintain 
the connectivity of these sites, to accommodate breeding, growth, and 
other normal behaviors of the Cumberland darter and to promote gene 
flow within the species.
    Therefore, based on the information above, we identify stable, 
second- to fourth-order streams containing gently flowing run and pool 
habitats with sand and bedrock substrates, boulders, large cobble, 
woody debris, or other cover and that are relatively silt-free and 
stream connectivity to be a physical or biological feature for the 
Cumberland darter.

Rush Darter

    Rush darters depend on bottom substrates dominated by sand, fine 
silt, fine gravel and some coarse gravel, and that have significant 
amounts of emergent aquatic vegetation (Drennen 2009, pers. obs.).
    In July 2008, rush darter young-of-the-year were collected within 
areas of very little water in the headwaters of an unnamed tributary in 
Jefferson County (Kuhajda 2008, pers. comm.), and in January 2008, the 
same tributary was dry. In previous years, this area was a spawning and 
nursery site for rush darters (Kuhajda 2008, pers. comm.). During May 
and June, rush darters spawned at this site even though the area had 
been dewatered occasionally in the summer, fall, and winter (Kuhajda 
2008, pers. comm.). Adults may be migrating upstream from watered areas 
or juveniles and adults may be moving downstream from the spring-fed 
wetland that constitutes the headwaters of the unnamed tributary 
(Kuhajda 2008, pers. comm.).
    Therefore, based on the information above, we identify permanent 
and ephemeral shallow streams with quiet water along stream margins and 
in shallow ephemeral pools and headwater tributaries, along with 
seasonal stream flows sufficient to provide connectivity and promote 
the emergent aquatic vegetation necessary for spawning and rearing of 
young, to be a physical or biological feature for the rush darter.

Yellowcheek Darter

    Yellowcheek darter spawning occurs from late May through June in 
the swift to moderately swift portions of riffles, often around or 
under the largest rocks (McDaniel 1984, p. 82), although brooding 
females have been found at the head of riffles in smaller gravel 
substrate (Wine et al. 2000, p. 3). During non-spawning months, there 
is a general movement to portions of the riffle with smaller substrate, 
such as gravel or cobble, and less turbulence (Robison and Harp 1981, 
p. 3). Weston and Johnson (2005, p. 24) observed that the yellowcheek 
darter moved very little during a 1-year migration study, 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 suggest 
that yellowcheek darters deposit eggs on the undersides of larger 
rubble in swift water (McDaniel 1984, p. 82). Wine and Blumenshine 
(2002, p. 10) noted that during laboratory spawning, yellowcheek darter 
females bury themselves in fine gravel or sand substrates (often behind 
large, fist-sized cobble) with only their heads and caudal fin exposed. 
A yellowcheek darter male will then position himself upstream of the 
buried female and fertilize her eggs. Clutch size and nest defense 
behavior were not observed. Given these specialized reproductive 
behaviors, the importance of riffle habitats that are characterized by 
good water quality and sufficient substrates that are relatively silt-
free is apparent.
    Therefore, based on the information above, we identify swift to 
moderately swift riffles with gravel, cobble, and boulder substrates 
that are characterized by good water quality and are relatively silt-
free to be a physical or biological feature for the yellowcheek darter.

Chucky Madtom

    Little is known regarding the reproductive habits of the chucky 
madtom; however, both smoky and elegant madtoms were found to nest 
under flat slab-rock boulders at or near the head of riffles (Burr and 
Dimmick 1981, p. 116; Dinkins and Shute 1996, p. 56). Shallow pools 
were also used by the smoky madtom. Smoky madtoms selected larger rocks 
for nesting than were used for shelter during other times of year 
(Dinkins and Shute 1996, p. 56). A single male madtom guards the nest 
in the cases of smoky, elegant, Ozark (N. albater), and least madtoms 
(Mayden et al. 1980, p. 337; Burr and Dimmick 1981, p. 116; Mayden and 
Walsh 1984, p. 357; Dinkins and Shute 1996, p. 56). While guarding the 
nest, many were found to have empty stomachs suggesting that they do 
not feed during nest guarding, which can last as long as 3 weeks.
    Siltation (excess sediments suspended or deposited in a stream) 
contributes to turbidity of the water and has been shown to smother 
fish eggs, clog fish gills, and may fill in essential interstitial 
spaces (spaces between stream substrates) used by aquatic organisms for 
spawning and foraging; therefore, excessive siltation negatively 
impacts fish growth, physiology, behavior, reproduction, and survival.
    Therefore, based on the information above, we identify streams 
containing

[[Page 63372]]

gently flowing run and pool habitats with flat or slab-rock boulder 
substrates that are relatively silt-free to be a physical or biological 
feature for the chucky madtom.

Laurel Dace

    Little is known regarding the reproductive habits of the laurel 
dace. Skelton (2001, p. 126) reported having collected nuptial 
individuals from late March until mid-June, although Call (2004, pers. 
obs.) observed males in waning nuptial color during surveys on July 22, 
2004. Laurel dace may be a spawning nest associate 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) collected a nest-building minnow with laurel 
dace. The nests used by blackside dace had moderate flow and consisted 
of gravel substrate at depths of 20 cm (7.9 in) (Starnes and Starnes 
1981, p. 366). These nests were noted to be approximately 0.7 m (2.3 
ft) from undercut banks (Starnes and Starnes 1981, p. 366).
    Siltation (excess sediments suspended or deposited in a stream) 
contributes to turbidity of the water and has been shown to smother 
fish eggs, clog fish gills, and may fill in essential interstitial 
spaces (spaces between stream substrates) used by aquatic organisms for 
spawning and foraging; therefore, excessive siltation negatively 
impacts fish growth, physiology, behavior, reproduction, and survival.
    Therefore, based on the information above, we identify headwater 
streams containing moderately flowing run and pool habitats with gravel 
substrates, containing undercut banks, and that are relatively silt-
free to be a physical or biological feature for the laurel dace.

Primary Constituent Elements

    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 
and biological features that, when laid out in the appropriate quantity 
and spatial arrangement to provide for a species' life-history 
processes, are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the five 
species' life history processes, we determine that the primary 
constituent elements are:

Cumberland darter

    (1) Primary Constituent Element 1--Shallow pools and gently flowing 
runs of geomorphically stable second- to fourth-order streams with 
connectivity between spawning, foraging, and resting sites to promote 
gene flow throughout the species' range.
    (2) Primary Constituent Element 2--Stable bottom substrates 
composed of relatively silt-free sand and sand-covered bedrock, 
boulders, large cobble, woody debris, or other cover.
    (3) Primary Constituent Element 3--An instream flow regime 
(magnitude, frequency, duration, and seasonality of discharge over 
time) sufficient to provide permanent surface flows, as measured during 
years with average rainfall, and maintain benthic habitats utilized by 
the species.
    (4) Primary Constituent Element 4--Adequate water quality 
characterized by moderate stream temperatures, acceptable dissolved 
oxygen concentrations, moderate pH, and low levels of pollutants. 
Adequate water quality is defined for the purpose of this rule as the 
quality necessary for normal behavior, growth, and viability of all 
life stages of the Cumberland darter.
    (5) Primary Constituent Element 5--Prey base of aquatic 
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly 
larvae, and microcrustaceans.

Rush Darter

    (1) Primary Constituent Element 1--Springs and spring-fed reaches 
of geomorphically stable, relatively low-gradient, headwater streams 
with appropriate habitat (bottom substrates) to maintain essential 
riffles, runs, and pools; emergent vegetation in shallow water and on 
the margins of small streams and spring runs; cool, clean, flowing 
water; and connectivity between spawning, foraging, and resting sites 
to promote gene flow throughout the species' range.
    (2) Primary Constituent Element 2--Stable bottom substrates 
consisting of a combination of sand with silt, muck, gravel, or bedrock 
and adequate emergent vegetation in shallow water on the margins of 
small permanent and ephemeral streams and spring runs.
    (3) Primary Constituent Element 3--Instream flow with moderate 
velocity and a continuous daily discharge that allows for a 
longitudinal connectivity regime inclusive of both surface runoff and 
groundwater sources (springs and seepages) and exclusive of flushing 
flows caused by stormwater runoff.
    (4) Primary Constituent Element 4--Water quality with temperature 
not exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams 
or greater per liter, turbidity of an average monthly reading of 10 
Nephelometric Turbidity Units (NTU; units used to measure sediment 
discharge) and 15mg/L Total Suspended Solids (TSS; measured as mg/L of 
sediment in water) or less; and a specific conductance (ability of 
water to conduct an electric current, based on dissolved solids in the 
water) of no greater than 225 micro Siemens per centimeter at 26.7 
[deg]C (80 [deg]F).
    (5) Primary Constituent Element 5--Prey base of aquatic 
macroinvertebrates, including midge larvae, mayfly nymphs, blackfly 
larvae, beetles, and microcrustaceans.

Yellowcheek Darter

    (1) Primary Constituent Element 1--Geomorphically stable second- to 
fifth-order streams with riffle habitats; and connectivity between 
spawning, foraging, and resting sites to promote gene flow within the 
species' range where possible.
    (2) Primary Constituent Element 2--Stable bottom composed of 
relatively silt-free, moderate to strong velocity riffles with gravel, 
cobble, and boulder substrates.
    (3) Primary Constituent Element 3--An instream flow regime 
(magnitude, frequency, duration, and seasonality of discharge over 
time) sufficient to provide permanent surface flows, as measured during 
years with average rainfall, and maintain benthic habitats utilized by 
the species.
    (4) Primary Constituent Element 4--Adequate water quality 
characterized by moderate stream temperatures, acceptable dissolved 
oxygen concentrations, moderate pH, and low levels of pollutants. 
Adequate water quality is defined for the purpose of this rule as the 
quality necessary for normal behavior, growth, and viability of all 
life stages of the yellowcheek darter.
    (5) Primary Constituent Element 5--Prey base of aquatic 
macroinvertebrates, including blackfly larvae, stonefly larvae, mayfly 
nymphs, and caddisfly larvae.

Chucky Madtom

    (1) Primary Constituent Element 1--Gently flowing run and pool 
reaches of geomorphically stable streams with cool, clean, flowing 
water; shallow depths; and connectivity between spawning, foraging, and 
resting sites to promote gene flow throughout the species' range.
    (2) Primary Constituent Element 2--Stable bottom substrates 
composed of

[[Page 63373]]

relatively silt-free, flat gravel, cobble, and slab-rock boulders.
    (3) Primary Constituent Element 3--An instream flow regime 
(magnitude, frequency, duration, and seasonality of discharge over 
time) sufficient to provide permanent surface flows, as measured during 
years with average rainfall, and maintain benthic habitats utilized by 
the species.
    (4) Primary Constituent Element 4--Adequate water quality 
characterized by moderate stream temperatures, acceptable dissolved 
oxygen concentrations, moderate pH, and low levels of pollutants. 
Adequate water quality is defined for the purpose of this rule as the 
quality necessary for normal behavior, growth, and viability of all 
life stages of the chucky madtom.
    (5) Primary Constituent Element 5--Prey base of aquatic 
macroinvertebrates, including midge larvae, mayfly nymphs, caddisfly 
larvae, and stonefly larvae.

Laurel Dace

    (1) Primary Constituent Element 1--Pool and run habitats of 
geomorphically stable first- to second-order streams with riparian 
vegetation; cool, clean, flowing water; shallow depths; and 
connectivity between spawning, foraging, and resting sites to promote 
gene flow throughout the species' range.
    (2) Primary Constituent Element 2--Stable bottom substrates 
composed of relatively silt-free cobble and slab-rock boulder 
substrates with undercut banks and canopy cover.
    (3) Primary Constituent Element 3--An instream flow regime 
(magnitude, frequency, duration, and seasonality of discharge over 
time) sufficient to provide permanent surface flows, as measured during 
years with average rainfall, and maintain benthic habitats utilized by 
the species.
    (4) Primary Constituent Element 4--Adequate water quality 
characterized by moderate stream temperatures, acceptable dissolved 
oxygen concentrations, moderate pH, and low levels of pollutants. 
Adequate water quality is defined for the purpose of this rule as the 
quality necessary for normal behavior, growth, and viability of all 
life stages of the laurel dace.
    (5) Primary Constituent Element 5--Prey base of aquatic 
macroinvertebrates, including midge larvae, caddisfly larvae, and 
stonefly larvae.
    With this proposed designation of critical habitat, we intend to 
identify the physical and biological features essential to the 
conservation of these five species, through the identification of the 
appropriate quantity and spatial arrangement of the primary constituent 
elements sufficient to support the life-history processes of the 
species. All units proposed to be designated as critical habitat are 
currently occupied by these five species, except for Cumberland darter 
Units 5 (Indian Creek) and 7 (Kilburn Fork). All occupied units for 
these five species contain the primary constituent elements in the 
appropriate quantity and spatial arrangement sufficient to support the 
life-history needs of these species. All unoccupied units for the 
Cumberland darter are considered essential to the conservation of the 
species.
Special Management Considerations or Protection
    When designating critical habitat, we assess whether the areas 
within the geographical area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection.

Cumberland Darter

    The 15 units we are proposing for designation as critical habitat 
for the Cumberland darter will require some level of management to 
address the current and future threats to the physical and biological 
features of the species. Due to their location on the Daniel Boone 
National Forest (DBNF), at least a portion of 13 of the 15 proposed 
critical habitat units are being managed and protected under DBNF's 
Land and Resource Management Plan (LRMP) (United States Forest Service 
(USFS) 2004, pp. 1-14). The LRMP is implemented through a series of 
project-level decisions based on appropriate site-specific analysis and 
disclosure. It does not contain a commitment to select any specific 
project; rather, it sets up a framework of desired future conditions 
with goals, objectives, and standards to guide project proposals. 
Projects are proposed to solve resource management problems, move the 
forest environment toward desired future conditions, and supply goods 
and services to the public (USFS 2004, pp. 1-14). The LRMP contains a 
number of protective standards that in general are designed to avoid 
and minimize potential adverse effects to the Cumberland darter and 
other federally listed species; however, the DBNF will continue to 
conduct project-specific section 7 consultation under the Act when 
their activities may adversely affect streams supporting Cumberland 
darters.
    Two of the 15 proposed critical habitat units are located entirely 
on private property and are not presently under the special management 
or protection provided by a legally operative plan or agreement for the 
conservation of the species. Activities in or adjacent to these areas 
of proposed critical habitat may affect one or more of the physical and 
biological features essential to the Cumberland darter. For example, 
features in this proposed critical habitat designation may require 
special management due to threats posed by resource extraction (coal 
surface mining, silviculture, natural gas and oil exploration 
activities), agricultural activities (livestock), lack of adequate 
riparian buffers, construction and maintenance of State and county 
roads, nonpoint source pollution arising from stormwater runoff, and 
canopy loss caused by infestations of the hemlock wooly adelgid. These 
threats are in addition to adverse effects of drought, floods, or other 
natural phenomena. Other activities that may affect physical and 
biological features in the proposed critical habitat units include 
those listed in the Effects of Critical Habitat Designation section 
below.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater springs and streams; regulation of 
off-road vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    In summary, we find that the areas we are proposing as critical 
habitat for the Cumberland darter contain the physical or biological 
features for the species, and that these features may require special 
management considerations or protection. Special management 
consideration or protection may be required to eliminate, or to reduce 
to negligible levels, the threats affecting the physical or biological 
features of each unit. Additional discussion of threats facing 
individual units is provided in the individual unit descriptions below.

Rush Darter

    The eight units we are proposing for designation as critical 
habitat will require some level of management to address the current 
and future threats to the physical and biological features of the rush 
darter. None of the proposed critical habitat units are presently under 
special management or protection provided by a legally operative plan 
or agreement for the conservation of the

[[Page 63374]]

rush darter. However, 4.7 km (2.9 mi) of the Turkey Creek watershed 
(Jefferson County) is designated critical habitat for the vermilion 
darter (Etheostoma chermocki) (75 FR 75913, December 7, 2010) which 
includes a portion of proposed rush darter unit 2. Various activities 
in or adjacent to the critical habitat units described in this proposed 
rule may affect one or more of the physical and biological features. 
For example, features in the proposed critical habitat designation may 
require special management due to threats posed by the following 
activities or disturbances: urbanization activities and inadequate 
stormwater management (such as stream channel modification for flood 
control or gravel extraction) that could cause an increase in bank 
erosion; significant changes in the existing flow regime within the 
streams due to water diversion or withdrawal; significant alteration of 
water quality; significant alteration in the quantity of groundwater 
and alteration of spring discharge sites; significant changes in stream 
bed material composition and quality due to construction projects and 
maintenance activities; off-road vehicle use; sewer, gas, and water 
easements; bridge construction; culvert and pipe installation; and 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water. Other activities that may affect physical and 
biological features in the proposed critical habitat units include 
those listed in the Effects of Critical Habitat Designation section 
below.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater springs, spring runs, and ephemeral 
rivulets; regulation of off-road vehicle use; and reduction of other 
watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water.
    In summary, we find that the areas we are proposing as critical 
habitat for the rush darter contain the physical or biological features 
for the species, and that these features may require special management 
considerations or protection. Special management consideration or 
protection may be required to eliminate, or to reduce to negligible 
levels, the threats affecting the physical or biological features of 
each unit. Additional discussion of threats facing individual units is 
provided in the individual unit descriptions below.

Yellowcheek Darter

    The four units we are proposing for designation as critical habitat 
for the yellowcheek darter will require some level of management to 
address the current and future threats to the physical and biological 
features of the species. The yellowcheek darter is currently covered 
under a Candidate Conservation Agreement with Assurances (CCAA) in the 
upper Little Red River watershed in Arkansas, along with the endangered 
speckled pocketbook mussel, which does not have critical habitat 
designated. Of the 205,761 hectares (ha) (508,446 acres (ac)) within 
the upper Little Red River watershed and known to support the 
yellowcheek darter, approximately 35,208 ha (87,000 ac) are owned by 
private parties (Service 2007, p. 4). To date, multiple landowners have 
enrolled 4,672 ha (11,544 ac) in the program since its inception in 
mid-2007 and 10 more landowners with approximately 20,234 ha (50,000 
ac) have pending draft agreements. Lands enrolled in these conservation 
programs include areas within the proposed critical habitat as well as 
riparian and upland areas that are outside of the proposed critical 
habitat boundary. Various activities in or adjacent to proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
natural gas extraction; timber harvest; gravel mining; unrestricted 
cattle access into streams; water diversion for agriculture, industry, 
municipalities, or other purposes; lack of adequate riparian buffers; 
construction and maintenance of county and State roads; and nonpoint 
source pollution arising from development and a broad array of human 
activities. These threats are in addition to random effects of drought, 
floods, or other natural phenomena. Other activities that may affect 
physical and biological features in the proposed critical habitat units 
include those listed in the Effects of Critical Habitat Designation 
section below.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater springs and streams; regulation of 
off-road vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    In summary, we find that the areas we are proposing as critical 
habitat for the yellowcheek darter contain the physical or biological 
features for the species, and that these features may require special 
management considerations or protection. Special management 
consideration or protection may be required to eliminate, or to reduce 
to negligible levels, the threats affecting the physical or biological 
features of each unit. Additional discussion of threats facing 
individual units is provided in the individual unit descriptions below.

Chucky Madtom

    The single unit we are proposing for designation of critical 
habitat for the chucky madtom will require some level of management to 
address the current and future threats to the physical and biological 
features of the species. The critical habitat unit is located on 
private property and is not presently under the special management or 
protection provided by a legally operative plan or agreement for the 
conservation of the species. Various activities in or adjacent to the 
critical habitat unit described in this proposed rule may affect one or 
more of the physical and biological features. For example, features in 
this proposed critical habitat designation may require special 
management due to threats posed by agricultural activities (e.g., row 
crops and livestock), lack of adequate riparian buffers, construction 
and maintenance of State and county roads, gravel mining, and nonpoint 
source pollution arising from a wide variety of human activities. These 
threats are in addition to random effects of drought, floods, or other 
natural phenomena. Other activities that may affect physical and 
biological features in the proposed critical habitat unit include those 
listed in the Effects of Critical Habitat Designation section below.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater springs and streams; regulation of 
off-road vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.

[[Page 63375]]

    In summary, we find that the area we are proposing as critical 
habitat for the chucky madtom contains the physical or biological 
features for the species, and that these features may require special 
management considerations or protection. Special management 
consideration or protection may be required to eliminate, or to reduce 
to negligible levels, the threats affecting the physical or biological 
features of the unit. Additional discussion of threats facing the unit 
is provided in the unit description below.

Laurel Dace

    The six units we are proposing for designation as critical habitat 
will require some level of management to address the current and future 
threats to the physical and biological features of the laurel dace. 
These units are located on private property and are not presently under 
the special management or protection provided by a legally operative 
plan or agreement for the conservation of the species. Various 
activities in or adjacent to these areas of proposed critical habitat 
may affect one or more of the physical and biological features. For 
example, features in this proposed critical habitat designation may 
require special management due to threats posed by resource extraction 
(coal and gravel mining, silviculture, natural gas and oil exploration 
activities), agricultural activities (row crops and livestock), lack of 
adequate riparian buffers, construction and maintenance of State and 
county roads, nonpoint source pollution arising from a wide variety of 
human activities, and canopy loss caused by infestations of the hemlock 
wooly adelgid. These threats are in addition to random effects of 
drought, floods, or other natural phenomena. Other activities that may 
affect physical and biological features in the proposed critical 
habitat units include those listed in the Effects of Critical Habitat 
Designation section below.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of BMPs designed to reduce sedimentation, 
erosion, and bank side destruction; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater springs and streams; regulation of 
off-road vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    In summary, we find that the areas we are proposing as critical 
habitat for the laurel dace contain the physical or biological features 
for the species, and that these features may require special management 
considerations or protection. Special management consideration or 
protection may be required to eliminate, or to reduce to negligible 
levels, the threats affecting the physical or biological features of 
each unit. Additional discussion of threats facing individual units is 
provided in the individual unit descriptions below.
Criteria Used To Identify Proposed Critical Habitat
    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species. In accordance with the Act and its implementing 
regulation at 50 CFR 424.12(e), we consider whether designating 
additional areas--outside those currently occupied as well as those 
occupied at the time of listing--are necessary to ensure the 
conservation of the species.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands usually 
lack physical and biological features for endangered species. The scale 
of the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical and biological features in the adjacent critical 
habitat. The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of the species.

Cumberland Darter

    We are proposing to designate critical habitat in areas within the 
geographical area occupied by the Cumberland darter at the time of 
listing in 2011. We also are proposing to designate specific areas 
outside the geographical area occupied by the species at the time of 
listing because we have determined that: (1) Such areas are essential 
for the conservation of the species; and (2) designation of only 
occupied habitats is not sufficient to conserve this species. 
Unoccupied habitats provide additional habitat for population expansion 
and promote greater genetic diversity, which will decrease the risk of 
extinction for the species.
    We used information from surveys and reports prepared by the 
Kentucky Department of Fish and Wildlife Resources, Kentucky Division 
of Water, and Service records to identify specific locations occupied 
by the Cumberland darter. Delineations were based on the best available 
scientific information indicating portions of streams containing 
necessary physical and biological features to support the Cumberland 
darter. We set the upstream and downstream limits of each critical 
habitat unit by identifying landmarks (bridges, confluences, road 
crossings, dams) above and below the upper and lowermost reported 
locations of the Cumberland darter in each stream reach to ensure 
incorporation of all potential sites of occurrence.
    We used ARCGIS to delineate the specific stream segments occupied 
by the Cumberland darter at the time of listing, and those locations 
outside the geographical area occupied by the species at the time it 
was listed that were determined to be essential for the conservation of 
the species. Areas proposed for critical habitat for the Cumberland 
darter include only stream channels within the ordinary high water line 
and do not contain any developed areas or structures. The designation 
of critical habitat does not imply that lands outside of critical 
habitat do not play an important role in the conservation of the 
Cumberland darter.
    We are proposing to designate as critical habitat all stream 
reaches in occupied habitat. We have defined occupied habitat as those 
stream reaches occupied at the time of listing and still known to be 
occupied by the Cumberland darter. These stream reaches comprise the 
entire known range of the species. As discussed above, currently 
occupied habitat for the Cumberland darter is limited to 13 streams in 
McCreary and Whitley Counties, Kentucky, and Campbell and Scott 
Counties, Tennessee. All currently occupied areas contain the physical 
and biological features of the species.
    To identify essential areas outside of the geographical area 
occupied at the time of listing, we focused on identifying areas 
historically occupied (currently unoccupied) in the upper Cumberland 
River basin in Kentucky

[[Page 63376]]

(McCreary and Whitley Counties) and Tennessee (Campbell and Scott 
Counties). We then assessed the critical life-history components of the 
Cumberland darter, as they relate to the physical and biological 
features. We determined the appropriate length of stream segments by 
identifying the upstream and downstream limits of unoccupied sections 
necessary for the conservation of the Cumberland darter.
    The unoccupied reaches we are proposing as critical habitat were 
not occupied by the Cumberland darter at the time of listing, but they 
are located within the historical range of the species. During our 
evaluation of unoccupied stream reaches that could be essential for the 
conservation of the Cumberland darter, we considered the availability 
of potential habitat throughout the historical range that may be 
essential to the survival and conservation of the species. We 
eliminated from consideration streams with degraded habitat and water 
quality conditions and other streams with potentially suitable habitat, 
but separated from basins with occupied habitats. This screening 
process produced two unoccupied stream reaches (Indian Creek and 
Kilburn Fork), which we are proposing as critical habitat. These 
reaches are adjacent to currently occupied areas where there is 
potential for natural dispersal and reoccupation by the species.
    Currently occupied habitats of the Cumberland darter are highly 
localized and fragmented, with populations separated from one another 
by an average distance of 30.5 stream km (19 stream mi). As explained 
above, this fragmentation and isolation of populations reduces the 
amount of space for rearing and reproduction, reduces the connectivity 
between populations, and decreases genetic diversity. Long-term 
viability is founded on the conservation of numerous local populations 
that can move freely between habitats and exchange genetic information. 
These reaches are essential to the Cumberland darter because they 
provide additional habitat for population expansion and will promote 
connectivity and genetic exchange between populations; in addition both 
streams support diverse fish assemblages, including federally listed 
and at-risk species.
    We are proposing for designation as critical habitat streams that 
we determined were occupied at the time of listing and contain 
sufficient elements of physical and biological features to support 
life-history processes essential for the conservation of the species, 
and lands outside of the geographical area occupied at the time of 
listing that we determined are essential to the conservation of the 
Cumberland darter. Thirteen units are proposed for designation based on 
sufficient elements of physical and biological features present to 
support Cumberland darter life-history processes. We consider these 
thirteen units to contain all of the identified elements of physical 
and biological features and to support multiple life-history processes 
for the Cumberland darter. Two additional units are proposed for 
designation because we consider them to be essential to the 
conservation of the species, and they may require special management 
considerations or protection.

Rush Darter

    We are proposing to designate critical habitat in areas within the 
geographical area occupied by the rush darter at the time of listing in 
2011. We are not currently proposing to designate any areas outside the 
geographical area occupied by the rush darter because occupied areas 
are sufficient for the conservation of the species.
    We used information from surveys and reports prepared by the 
Alabama Department of Conservation and Natural Resources, Alabama 
Geological Survey, Samford University, University of Alabama, the U.S. 
Forest Service, the Natural Resources Conservation Service, and the 
Service to identify the specific locations occupied by the rush darter. 
Currently, occupied habitat for the species is limited and isolated. 
The species is currently located within tributaries of three watersheds 
in three counties in Alabama: the Turkey Creek watershed (Jefferson 
County) (Drennen 2008, pers. obs.); the Clear Creek watershed (Winston 
County); and the Cove Creek watershed (Etowah County). In the Turkey 
Creek watershed, the species is found in four tributaries including 
Beaver Creek, an unnamed tributary to Beaver Creek, the Highway 79 
site, and Tapawingo or Penny Springs. In the Clear Creek watershed, it 
is found in Wildcat Branch, Doe Branch, and Mill Creek. In the Cove 
Creek watershed, it found in Little Cove Creek, Cove Spring and spring 
run, and Bristow Creek.
    Following the identification of the specific locations occupied by 
the rush darter, we determined the appropriate length of stream 
segments by identifying the upstream and downstream limits of these 
occupied sections necessary for the conservation of the rush darter. 
Because populations of rush darters are isolated due to dispersal 
barriers, to set the upstream and downstream limits of each critical 
habitat unit, we identified landmarks (bridges, confluences, road 
crossings, and dams), and in some instances latitude and longitude 
coordinates and section lines above and below the upper and lowermost 
reported locations of the rush darter, in each stream reach to ensure 
incorporation of all potential sites of occurrence. In addition, within 
the Cove Spring run and Tapawingo or Penny Spring run, the total area 
of water that is pooled, and is rush darter habitat, was calculated in 
hectares (acres). The proposed critical habitat areas were then mapped 
using ARCGIS to produce the critical habitat map.
    We are proposing to designate as critical habitat all stream and 
spring reaches in occupied habitat. We have defined occupied habitat as 
those stream reaches occupied at the time of listing and still known to 
be occupied by the rush darter; these stream reaches comprise the 
entire known range of the rush darter. We are not proposing to 
designate any areas outside the occupied range of the species because 
occupied areas are sufficient for the conservation of the species, and 
because the historical range of the rush darter, beyond currently 
occupied areas, is unknown and dispersal beyond the current range is 
not likely due to dispersal barriers. Areas proposed for critical 
habitat for the rush darter below include only stream channels within 
the ordinary high water line and spring pool areas and do not contain 
any developed areas or structures.
    We are proposing for designation as critical habitat streams that 
we have determined were occupied at the time of listing and contain 
sufficient elements of physical and biological features to support 
life-history processes essential to the conservation of rush darter. 
Eight units are proposed for designation based on sufficient elements 
of physical and biological features present to support rush darter 
life-history processes. Some units contain all of the identified 
elements of physical and biological features and support multiple life-
history processes. Some units contain only some elements of the 
physical and biological features necessary to support the rush darter's 
particular use of that habitat.

Yellowcheek Darter

    We are proposing to designate critical habitat in areas within the 
geographical area occupied by the yellowcheek darter at the time of 
listing in 2011. We are not currently proposing to designate any areas 
outside the geographical area occupied by the yellowcheek darter

[[Page 63377]]

because occupied areas are sufficient for the conservation of the 
species.
    We used information from surveys and reports prepared by Arkansas 
State University, Arkansas Tech University, Arkansas Game and Fish 
Commission, Arkansas Department of Environmental Quality, and the 
Service to identify the specific locations occupied by the yellowcheek 
darter. We identified those areas to propose for designation as 
critical habitat, within the geographical area occupied by the species 
at the time of listing, that contain the physical and biological 
features of the yellowcheek darter and which may require special 
management consideration or protection. All of the areas we considered 
for designation are currently part of ongoing recovery initiatives for 
this species and are targeted for special management considerations.
    We used ARCGIS to delineate the specific stream segments occupied 
by the yellowcheek darter at the time of listing, which contain the 
physical and biological features essential to the species. We assessed 
the critical life-history components of the yellowcheek darter, as they 
relate to habitat. Delineations were based on the best available 
scientific information indicating portions of streams containing 
necessary physical and biological features necessary to support the 
yellowcheek darter. We set the upstream and downstream limits of each 
critical habitat unit by identifying landmarks (bridges, confluences, 
road crossings, dams, reservoir inundation elevations) above and below 
the upper and lowermost reported locations of the yellowcheek darter in 
each stream reach to ensure incorporation of all potential sites of 
occurrence. Areas proposed as yellowcheek darter critical habitat 
include only stream channels within the ordinary high water line and do 
not contain any developed areas or structures.
    We are proposing for designation as critical habitat streams that 
we have determined were occupied at the time of listing and contain 
sufficient elements of physical and biological features to support 
life-history processes essential to the conservation of the yellowcheek 
darter. Four units are proposed for designation based on sufficient 
elements of physical and biological features present to support 
yellowcheek darter life-history processes. All units contain all of the 
identified elements of physical and biological features and support 
multiple life-history processes.

Chucky Madtom

    We are proposing to designate critical habitat in areas within the 
geographical area occupied by the chucky madtom darter at the time of 
listing in 2011. We are not currently proposing to designate any areas 
outside the geographical areas occupied by the chucky madtom at the 
time of listing because the historical range, beyond currently occupied 
areas, is not well known.
    We used information from surveys and reports prepared by 
Conservation Fisheries, Inc., and the Tennessee Valley Authority to 
identify the specific locations occupied by the chucky madtom. 
Currently, occupied habitat for the species is limited and isolated. At 
the time of listing, the current range of the chucky madtom was 
restricted to an approximately 3-km (1.8-mi) reach of Little Chucky 
Creek in Greene County, Tennessee.
    Following the identification of the specific locations occupied by 
the chucky madtom, we determined the appropriate length of stream 
segments by identifying the upstream and downstream limits of these 
occupied sections necessary for the conservation of the species. To set 
the upstream and downstream limits of the single critical habitat unit, 
we identified landmarks (bridges, confluences, and road crossings) 
above and below the upper and lowermost reported locations of the 
chucky madtom in Little Chucky Creek to ensure incorporation of all 
potential sites of occurrence. The proposed critical habitat areas were 
then mapped using ARCGIS to produce the critical habitat unit map.
    We are proposing to designate as critical habitat a single stream 
reach in Little Chucky Creek, which is occupied habitat. This stream 
reach comprises the entire known range of the chucky madtom. The 
proposed unit contains one or more of the physical and biological 
features in the appropriate quantity and spatial arrangement essential 
to the conservation of this species and support multiple life processes 
for the chucky madtom. The area proposed for critical habitat for the 
chucky madtom includes only the stream channel within the ordinary high 
water line and does not contain any developed areas or structures.
    We are proposing for designation as critical habitat a stream that 
we have determined was occupied at the time of listing and contain 
sufficient elements of physical and biological features to support 
life-history processes essential to the conservation of the chucky 
madtom. One unit is proposed for designation based on sufficient 
elements of physical and biological features present to support chucky 
madtom life-history processes.

Laurel Dace

    We are proposing to designate critical habitat in areas within the 
geographical area occupied by the laurel dace at the time of listing in 
2011. We are not currently proposing to designate any areas outside the 
geographical area occupied by the laurel dace because occupied areas 
are sufficient for the conservation of the species.
    We used information from surveys and reports prepared by the 
Tennessee Valley Authority, Tennessee Wildlife Resources Agency, 
University of Tennessee, and the Service to identify the specific 
locations occupied by the laurel dace. Currently, occupied habitat for 
the species is limited and isolated. The species is currently located 
in three independent systems: Soddy Creek, the Sale Creek system, and 
the Piney River system. Following the identification of the specific 
locations occupied by the laurel dace, we determined the appropriate 
length of stream segments by identifying the upstream and downstream 
limits of these occupied sections necessary for the conservation of the 
laurel dace. Because populations of laurel dace are isolated due to 
dispersal barriers, to set the upstream and downstream limits of each 
critical habitat unit, we identified landmarks (bridges, confluences, 
and road crossings), and in some instances latitude and longitude 
coordinates and section lines above and below the upper and lowermost 
reported locations of the laurel dace, in each stream reach to ensure 
incorporation of all potential sites of occurrence. The proposed 
critical habitat areas were then mapped using ARCGIS to produce the 
critical habitat unit maps.
    We are proposing to designate as critical habitat all stream 
reaches in occupied habitat. We have defined occupied habitat as those 
stream reaches occupied at the time of listing and still known to be 
occupied by the laurel dace; these stream reaches comprise the entire 
known range of the laurel dace. The six proposed units contain one or 
more of the physical and biological features in the appropriate 
quantity and spatial arrangement essential to the conservation of this 
species and support multiple life-history processes for the laurel 
dace. Areas proposed for critical habitat for the laurel dace include 
only stream channels within the ordinary high water line and do not 
contain any developed areas or structures.
    We are proposing for designation of critical habitat streams that 
we determined were occupied at the time of listing and contain 
sufficient elements of physical and biological features to

[[Page 63378]]

support life-history processes essential to the conservation of the 
laurel dace. Six units are proposed for designation based on sufficient 
elements of physical and biological features present to support laurel 
dace life-history processes. All units contain all of the identified 
elements of physical and biological features and support multiple life-
history processes.

Proposed Critical Habitat Designation

Cumberland Darter

    We are proposing 15 units as critical habitat for the Cumberland 
darter. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the Cumberland darter. The 15 areas we propose as critical 
habitat are as follows: (1) Bunches Creek, (2) Calf Pen Fork, (3) 
Youngs Creek, (4) Barren Fork, (5) Indian Creek, (6) Cogur Fork, (7) 
Kilburn Fork, (8) Laurel Fork, (9) Laurel Creek, (10) Elisha Branch, 
(11) Jenneys Branch, (12) Wolf Creek, (13) Jellico Creek, (14) Rock 
Creek, and (15) Capuchin Creek. Critical habitat units are either in 
private ownership or public ownership (DBNF). In Kentucky and 
Tennessee, landowners own the land under non-navigable streams (e.g., 
the stream channel or bottom), but the water is under State 
jurisdiction. Portions of the public-to-private boundary for units 6, 
7, 8, 9, and 13 were located along the mid-line of the stream channel; 
lengths for these segments were divided equally between public and 
private ownership. Table 1 shows the occupancy of the units and 
ownership of the proposed designated areas for the Cumberland darter.

        Table 1--Occupancy and Ownership of the Proposed Critical Habitat Units for the Cumberland Darter
----------------------------------------------------------------------------------------------------------------
                                                                                     Federal,
                                                                      Private     State, County,   Total length
        Unit                 Location              Occupied        ownership km   City ownership    km (miles)
                                                                       (mi)           km (mi)
----------------------------------------------------------------------------------------------------------------
1...................  Bunches Creek........  Yes................               0       5.3 (3.3)       5.3 (3.3)
2...................  Calf Pen Fork........  Yes................               0       2.9 (1.8)       2.9 (1.8)
3...................  Youngs Creek.........  Yes................       7.4 (4.6)               0       7.4 (4.6)
4...................  Barren Fork..........  Yes................               0       6.3 (3.9)       6.3 (3.9)
5...................  Indian Creek.........  No.................               0       4.0 (2.5)       4.0 (2.5)
6...................  Cogur Fork...........  Yes................       2.7 (1.7)       5.9 (3.7)       8.6 (5.4)
7...................  Kilburn Fork.........  No.................       0.9 (0.6)       3.7 (2.3)       4.6 (2.9)
8...................  Laurel Fork..........  Yes................       1.3 (0.8)       2.2 (1.4)       3.5 (2.2)
9...................  Laurel Creek.........  Yes................       0.6 (0.4)       8.8 (5.5)       9.4 (5.9)
10..................  Elisha Branch........  Yes................               0       2.1 (1.3)       2.1 (1.3)
11..................  Jenneys Branch.......  Yes................               0       3.1 (1.9)       3.1 (1.9)
12..................  Wolf Creek...........  Yes................       6.3 (3.9)               0       6.3 (3.9)
13..................  Jellico Creek........  Yes................       8.2 (5.1)       3.3 (2.1)      11.5 (7.2)
14..................  Rock Creek...........  Yes................       3.9 (2.4)       2.2 (1.4)       6.1 (3.8)
15..................  Capuchin Creek.......  Yes................       3.4 (2.1)       0.8 (0.5)       4.2 (2.6)
                                                                 -----------------------------------------------
    Total...........  .....................  ...................  ..............  ..............     85.3 (53.2)
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units and reasons why they 
meet the definition of critical habitat for the Cumberland darter. The 
proposed critical habitat units include the stream channels of the 
creek within the ordinary high water line. As defined in 33 CFR 329.11, 
the ordinary high water mark on nontidal rivers is the line on the 
shore established by the fluctuations of water and indicated by 
physical characteristics, such as a clear, natural line impressed on 
the bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas. For each stream reach proposed as a critical habitat unit, the 
upstream and downstream boundaries are described generally below. More 
precise definitions are provided in the Proposed Regulation 
Promulgation at the end of this proposed rule.
Unit 1: Bunches Creek, Whitley County, Kentucky
    This unit is located between Kentucky Highway 90 (KY 90) and the 
Cumberland River and includes 5.3 km (3.3 mi) of Bunches Creek from the 
confluence of Seminary Branch and Amos Falls Branch downstream to its 
confluence with the Cumberland River. Live Cumberland darters have been 
captured at two sites within proposed Unit 1 (Thomas 2007, pp. 11-12), 
specifically at the mouth of Bunches Creek and just below its 
confluence with Calf Pen Fork. This unit was included in the 
geographical area occupied by the species at the time of listing. This 
unit is located entirely on federal lands within the DBNF. Land and 
resource management decisions and activities within the DBNF are guided 
by DBNF's LRMP (USFS 2004, pp. 1-14). The lower portion of Bunches 
Creek (stream km 0 to 0.3 (mi 0 to 0.1)) flows through a designated 
Kentucky Wild River corridor (KRS 146.200 to 146.360) that extends 
along an approximately 25.7-km (16-mi) reach of the Cumberland River. 
This Wild River corridor extends from Summer Shoals downstream to the 
backwaters of Lake Cumberland (KRS 146.241). The Bunches Creek-
Cumberland River confluence is located approximately 3.0 km (1.9 mi) 
upstream of Cumberland Falls. The Bunches Creek watershed is relatively 
undisturbed and access is limited (no road crossings). The channel 
within proposed Unit 1 is relatively stable, with excellent instream 
habitat (PCE 1). There is an abundance of pool and run habitats (PCE 
1), with relatively silt-free sand and bedrock substrates (PCE 2) and 
adequate instream flows (PCE 3). Water quality is good to excellent 
(PCE 4), as evidenced by diverse fish and macroinvertebrate communities 
(PCE 5).
    Within proposed Unit 1, the Cumberland darter and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with silviculture-related 
activities, natural gas and oil exploration activities in headwater 
reaches, illegal off-road

[[Page 63379]]

vehicle use and other recreational activities, nonpoint source 
pollution originating in headwater reaches, and canopy loss caused by 
infestations of the hemlock wooly adelgid.
Unit 2: Calf Pen Fork, Whitley County, Kentucky
    This unit includes 2.9 km (1.8 mi) of Calf Pen Fork, a tributary of 
Bunches Creek, from its confluence with Polly Hollow downstream to its 
confluence with Bunches Creek. Live Cumberland darters have been 
captured in Calf Pen Fork just above its confluence with Bunches Creek 
(Thomas 2007, pp. 11-12). This unit was included in the geographical 
area occupied by the species at the time of listing. This unit is 
located entirely on federal lands within the DBNF. Land and resource 
management decisions and activities within the DB proposed NF are 
guided by DBNF's LRMP (USFS 2004, pp. 1-14). Similar to the watershed 
of Unit 1, the Calf Pen Fork watershed is relatively undisturbed and 
access is limited (no road crossings). Within proposed Unit 2, the 
channel is relatively stable, with excellent instream habitat (PCE 1), 
an abundance of run and pool habitats (PCE 1), relatively silt-free 
sand and bedrock substrates (PCE 2), and adequate instream flows (PCE 
3). Water quality is good to excellent (PCE 4), with diverse fish and 
macroinvertebrate communities (PCE 5).
    Within proposed Unit 2, the Cumberland darter and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with silviculture-related 
activities, natural gas and oil exploration activities, illegal off-
road vehicle use and other recreational activities, nonpoint source 
pollution arising from headwater reaches, and canopy loss caused by 
infestations of the hemlock wooly adelgid.
Unit 3: Youngs Creek, Whitley County, Kentucky
    Proposed Unit 3 includes 7.4 km (4.6 mi) of Youngs Creek from Brays 
Chapel Road downstream to its confluence with the Cumberland River. 
Live Cumberland darters have been captured within proposed Unit 3 
(Thomas 2007, pp. 11-12), specifically at the KY 204 bridge crossing. 
This unit was included in the geographical area occupied by the species 
at the time of listing. This unit is located entirely on private land. 
The watershed of Youngs Creek is less forested than proposed Units 1 
and 2, with scattered residences and small farms. The channel is 
relatively stable (PCE 1), but activities associated with agriculture, 
silviculture, and residential development have contributed to a more 
open riparian zone, increased bank erosion, and some siltation of 
instream habitats. Despite these impacts, proposed Unit 3 continues to 
provide pool and run habitats with suitable sand and bedrock substrates 
for Cumberland darters to use in spawning, foraging, and other 
behaviors (PCEs 1 and 2). Flow is adequate as measured during years 
with average rainfall (PCE 3), water quality is adequate (PCE 4), and 
macroinvertebrate prey items are present (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, illegal off-road vehicle use, 
nonpoint source pollution arising from a wide variety of human 
activities, and canopy loss caused by infestations of the hemlock wooly 
adelgid.
Unit 4: Barren Fork, McCreary County, Kentucky
    Proposed Unit 4 includes 6.3 km (3.9 mi) of Barren Fork from its 
confluence with an unnamed tributary downstream to its confluence with 
Indian Creek. Based on survey results by Thomas (2007, pp. 11-12) and 
Stephens (2009, pp. 10-23), Barren Fork supports the most robust 
population of Cumberland darters within the species' range. Over the 
past 4 years, over 75 Cumberland darters have been observed within this 
unit (Thomas 2007, pp. 11-12; Stephens 2009, pp. 10-23). This unit was 
included in the geographical area occupied by the species at the time 
of listing. This unit is located entirely on federal lands within the 
DBNF. Land and resource management decisions and activities within the 
DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14). In the summer and 
fall of 2008, the Barren Fork watershed was adversely affected by 
several large sedimentation events originating from a county park 
construction site in the headwaters of the basin. Inadequate site 
planning and poor BMP implementation allowed significant quantities of 
sediment to leave the construction site and enter headwater tributaries 
of Barren Fork. The sediment was carried downstream into the mainstem 
of Barren Fork, eventually affecting the entire reach of proposed Unit 
4. Until the construction site was stabilized in 2009, important 
spawning and foraging habitats for the Cumberland darter were degraded.
    Despite these significant adverse effects, habitat conditions have 
improved since 2008, and are now similar to those described for 
proposed Units 1 and 2. The watershed is mostly forested, with 
relatively stable channels (PCE 1), abundant pool and run habitats (PCE 
1), relatively silt-free sand and bedrock substrates (PCE 2), adequate 
flow (PCE 3), adequate water quality (PCE 4), and a diverse 
macroinvertebrate community (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, construction and maintenance of county roads, illegal off-road 
vehicle use, nonpoint source pollution arising from a wide variety of 
human activities, and canopy loss caused by infestations of the hemlock 
wooly adelgid.
Unit 5: Indian Creek, McCreary County, Kentucky
    Proposed Unit 5 includes 4.0 km (2.5 mi) of Indian Creek from its 
confluence with an unnamed tributary, downstream to its confluence with 
Barren Fork. Live Cumberland darters have not been captured within 
proposed Unit 5. This unit was not included in the geographical area 
occupied by the species at the time of listing and it is not currently 
occupied by the species.
    This unit is located entirely on federal lands within the DBNF. 
Land and resource management decisions and activities within the DBNF 
are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
    This unit is located within the historical range of the species, 
and is adjacent to currently occupied areas where there is potential 
for natural dispersal and reoccupation by the Cumberland darter. This 
unit is essential to the conservation of the Cumberland darter because 
it provides additional habitat for population expansion and will 
promote connectivity and genetic exchange between adjacent units to the 
south (Unit 4, Barren Fork) and to the north (Unit 6, Cogur Fork).
Unit 6: Cogur Fork, McCreary County, Kentucky
    Proposed Unit 6 includes 8.6 km (5.4 mi) of Cogur Fork from its 
confluence with an unnamed tributary downstream to its confluence with 
Indian Creek. Live Cumberland darters have been captured at several 
locations within an approximately 1-km (0.62-mi) reach

[[Page 63380]]

upstream of the KY 1045 road crossing (Thomas 2010, pers. comm.). This 
unit was included in the geographical area occupied by the species at 
the time of listing. The majority of this unit (5.9 km (3.7 mi)) is in 
public ownership (DBNF), with the remainder of the unit (2.7 km (1.7 
mi)) in private ownership. Land and resource management decisions and 
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
    Cumberland darters have been captured within proposed Unit 6, but 
the population is considered to be small (Thomas 2010, pers. comm.). 
From 2008 to present, the fauna has been bolstered through propagation 
and augmentation efforts by KDFWR, Conservation Fisheries, Inc. (CFI), 
and the Service (Thomas et al. 2010, p. 107). Initial brood stock were 
collected in 2008, with subsequent releases of propagated darters in 
2009 (60 individuals (inds)) and 2010 (335 inds). Both tagged 
(propagated, 50 inds) and non-tagged (native, 4 inds) darters were 
observed during recent surveys in November 2010. Individuals tagged and 
released by KDFWR and CFI traveled distances ranging from 0.4 to 0.7 km 
(0.2 to 0.4 mi) between their release date of September 22, 2010, and 
their recapture date of November 9, 2010 (period of 48 days) (Thomas 
2010, pers. comm.).
    Similar to other units located entirely or predominately on the 
DBNF (Units 1, 2, 4, and 5), this unit has relatively stable channels 
(PCE 1), abundant pool and run habitats (PCE 1), relatively silt-free 
sand and bedrock substrates (PCE 2), adequate flow (PCE 3), adequate 
water quality (PCE 4), and a diverse macroinvertebrate community (PCE 
5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, construction and maintenance of county roads, illegal off-road 
vehicle use, nonpoint source pollution arising from a wide variety of 
human activities, and canopy loss caused by infestations of the hemlock 
wooly adelgid.
Unit 7: Kilburn Fork, McCreary County, Kentucky
    Proposed Unit 7 includes 4.6 km (2.9 mi) of Kilburn Fork from its 
confluence with an unnamed tributary downstream to its confluence with 
Laurel Fork. Live Cumberland darters have not been captured within 
proposed Unit 7 over the last 15 years (Thomas 2007, pp. 11-12). This 
unit was not included in the geographical area occupied by the species 
at the time of listing, and it is not currently occupied by the 
species.
    The majority of this unit (3.7 km (2.3 mi)) is in public ownership 
(DBNF), with the remainder of the unit (0.9 km (0.6 mi)) in private 
ownership. Land and resource management decisions and activities within 
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
    This unit is located within the historical range of the species, 
and is adjacent to currently occupied areas where there is potential 
for natural dispersal and reoccupation by the Cumberland darter. This 
unit is essential to the conservation of the Cumberland darter because 
it provides additional habitat for population expansion and will 
promote connectivity and genetic exchange between adjacent units to the 
south (Unit 6, Cogur Fork) and to the north (Unit 8, Laurel Fork).
Unit 8: Laurel Fork, McCreary County, Kentucky
    Proposed Unit 8 includes 3.5 km (2.2 mi) of Laurel Fork from its 
confluence with Tom Fork downstream to its confluence with Indian 
Creek. Live Cumberland darters have been captured within proposed Unit 
8 (Thomas 2007, pp. 11-12), specifically just upstream of its 
confluence with Kilburn Fork. This unit was included in the 
geographical area occupied by the species at the time of listing.
    The majority of this unit (2.2 km (1.4 mi)) is in public ownership 
(DBNF), with the remainder of the unit (1.3 km (0.8 mi)) in private 
ownership. Land and resource management decisions and activities within 
the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
    Similar to other streams with major portions of their basins in the 
DBNF, the watershed of Laurel Fork is relatively intact and access is 
limited (limited roads and residential development). The channel within 
proposed Unit 8 is relatively stable (PCE 1), with suitable instream 
habitat to support the life-history functions of the Cumberland darter. 
There is an abundance of pool and run habitats (PCE 1), with relatively 
silt-free sand and bedrock substrates (PCE 2) and adequate flows (PCE 
3). Water quality is good to excellent (PCE 4), as evidenced by diverse 
fish and macroinvertebrate communities (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, construction and maintenance of county roads, illegal off-road 
vehicle use, nonpoint source pollution arising from a wide variety of 
human activities, and canopy loss caused by infestations of the hemlock 
wooly adelgid.
Unit 9: Laurel Creek, McCreary County, Kentucky
    Proposed Unit 9 includes 9.4 km (5.9 mi) of Laurel Fork Creek from 
Laurel Fork Reservoir downstream to its confluence with Jenneys Branch. 
Live Cumberland darters have been captured within proposed Unit 9 
(Thomas 2007, pp. 11-12), specifically just upstream of its confluence 
with Elisha Branch and at the KY 478 bridge crossing. This unit was 
included in the geographical area occupied by the species at the time 
of listing. The majority of this unit (8.8 km (5.5 mi)) is in public 
ownership (DBNF), with the remainder of the unit (0.6 km (0.4 mi)) in 
private ownership. Land and resource management decisions and 
activities within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-
14).
    The watershed of Laurel Creek is relatively intact, with extensive 
forest cover and few roads. The channel within Proposed Unit 9 is 
relatively stable (PCE 1), with suitable instream habitat to support 
the life-history functions of the Cumberland darter. There is an 
abundance of pool and run habitats (PCE 1), with relatively silt-free 
sand and bedrock substrates (PCE 2) and adequate instream flows (PCE 
3). Water quality is good to excellent (PCE 4), with a diverse 
macroinvertebrate community (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, construction and maintenance of county roads, illegal off-road 
vehicle use, nonpoint source pollution arising from a wide variety of 
human activities, and canopy loss caused by infestations of the hemlock 
wooly adelgid.
Unit 10: Elisha Branch, McCreary County, Kentucky
    Proposed Unit 10 includes 2.1 km (1.3 mi) of Elisha Branch from its 
confluence with an unnamed tributary (36.70132, -84.40843) downstream 
to its confluence with Laurel Creek. Live Cumberland darters have been 
captured within proposed Unit 10 (Thomas 2007, pp. 11-12), specifically 
just upstream of

[[Page 63381]]

its confluence with Laurel Creek. This unit was included in the 
geographical area occupied by the species at the time of listing. This 
unit is located entirely on public lands within the DBNF. Land and 
resource management decisions and activities within the DBNF are guided 
by DBNF's LRMP (USFS 2004, pp. 1-14).
    The watershed of Elisha Branch is relatively intact, with extensive 
forest cover and no road crossings. Within proposed Unit 10, the 
channel is relatively stable, with excellent instream habitat (PCE 1), 
an abundance of run and pool habitats (PCE 1), relatively silt-free 
sand and bedrock substrates (PCE 2), and adequate flows (PCE 3). Water 
quality is good to excellent (PCE 4), with diverse fish and 
macroinvertebrate communities (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, illegal off-road vehicle use, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid.
Unit 11: Jenneys Branch, McCreary County, Kentucky
    Proposed Unit 11 includes 3.1 km (1.9 mi) of Jenneys Branch from 
its confluence with an unnamed tributary (36.73680, -84.42420) 
downstream to its confluence with Laurel Creek. Live Cumberland darters 
have been captured within proposed Unit 11 (Thomas 2007, pp. 11-12), 
specifically just upstream of its confluence with Laurel Creek. This 
unit was included in the geographical area occupied by the species at 
the time of listing. This unit is located entirely on public lands 
within the DBNF. Land and resource management decisions and activities 
within the DBNF are guided by DBNF's LRMP (USFS 2004, pp. 1-14).
    The watershed of Jenneys Branch is relatively intact and remote, 
with extensive forest cover and only one road crossing in its 
headwaters. Within proposed Unit 11, the stream channel is relatively 
stable, with excellent instream habitat (PCE 1), an abundance of run 
and pool habitats (PCE 1), relatively silt-free sand and bedrock 
substrates (PCE 2), and adequate instream flows (PCE 3). Water quality 
is good to excellent (PCE 4), with diverse fish and macroinvertebrate 
communities (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), lack of adequate riparian 
buffers, illegal off-road vehicle use, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid.
Unit 12: Wolf Creek, Whitley County, Kentucky
    Proposed Unit 12 includes 6.3 km (3.9 mi) of Wolf Creek from its 
confluence with Sheep Creek downstream to Wolf Creek River Road. Live 
Cumberland darters have been captured within proposed Unit 12 just 
downstream of the Little Wolf Creek River Road bridge crossing (Thomas 
2007, pp. 11-12). This unit was included in the geographical area 
occupied by the species at the time of listing.
    This unit is located entirely on private land. Land use within the 
watershed of Wolf Creek is similar to proposed Unit 3 and is less 
forested than units within the DBNF. The channel is relatively stable 
(PCE 1), but activities associated with agriculture, silviculture, and 
residential development have contributed to a more open riparian zone, 
increased bank erosion, and some siltation of instream habitats. 
Despite these impacts, proposed Unit 12 continues to provide pool and 
run habitats with suitable sand and bedrock substrates for Cumberland 
darters to use in spawning, foraging, and other behaviors (PCEs 1 and 
2). Flow is adequate as measured during years with average rainfall 
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey 
items are present (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, illegal off-road vehicle use, 
and nonpoint source pollution arising from a wide variety of human 
activities.
Unit 13: Jellico Creek, McCreary County, Kentucky, and Scott County, 
Tennessee
    Proposed Unit 13 includes 11.5 km (7.2 mi) of Jellico Creek from 
its confluence with Scott Branch, Scott County, Tennessee downstream to 
its confluence with Capuchin Creek, McCreary County, Kentucky. Live 
Cumberland darters have been captured within proposed Unit 13 at the 
Jellico Creek and Shut-In Branch confluence and at the Gum Fork and 
Jellico Creek confluence (O'Bara 1988, p. 12; Thomas 2007, pp. 11-12). 
This unit was included in the geographical area occupied by the species 
at the time of listing. A portion of this unit in Kentucky (3.3 km (2.1 
mi)) is in public ownership (DBNF), with the remainder of the unit (8.2 
km (5.1 mi)) in private ownership. Land and resource management 
decisions and activities within the DBNF are guided by DBNF's LRMP 
(USFS 2004, pp. 1-14).
    Land use within the watershed of Jellico Creek is predominately 
forest, with scattered residences and small farms (cattle and hay 
production). The channel in proposed Unit 13 is relatively stable (PCE 
1), but activities associated with agriculture, silviculture, and 
residential development have contributed to a more open riparian zone, 
increased bank erosion, and some siltation of instream habitats. 
Despite these impacts, proposed Unit 13 continues to provide pool and 
run habitats with suitable sand and bedrock substrates for Cumberland 
darters to use in spawning, foraging, and other behaviors (PCEs 1 and 
2). Flow is adequate as measured during years with average rainfall 
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey 
items are present (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, illegal off-road vehicle use, 
and nonpoint source pollution arising from a wide variety of human 
activities.
Unit 14: Rock Creek, McCreary County, Kentucky
    Proposed Unit 14 includes 6.1 km (3.8 mi) of Rock Creek from its 
confluence with Sid Anderson Branch downstream to its confluence with 
Jellico Creek. Live Cumberland darters have been captured within 
proposed Unit 14 just above the mouth of Rock Creek at its confluence 
with Jellico Creek (Thomas 2007, pp. 11-12). This unit was included in 
the geographical area occupied by the species at the time of listing. A 
portion of this unit (2.2 km (1.4 mi)) is in public ownership (DBNF), 
but the majority (3.9 km (2.4 mi)) is in private ownership. Land and 
resource management decisions and activities within the DBNF are guided 
by DBNF's LRMP (USFS 2004, pp. 1-14).

[[Page 63382]]

    Most of the watershed is forested (especially along the ridge 
tops), but the valley floor has several open fields and is easily 
accessible via Little Rock Creek Road. Portions of the channel in Unit 
14 have been modified by beaver (with some ponding), but it continues 
to be relatively stable, with excellent instream habitat (PCE 1), an 
abundance of run and pool habitats (PCE 1), relatively silt-free sand 
and bedrock substrates (PCE 2), and adequate instream flows (PCE 3). 
Water quality is good to excellent (PCE 4), with diverse fish and 
macroinvertebrate communities (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, illegal off-road vehicle use, 
nonpoint source pollution arising from a wide variety of human 
activities, and canopy loss caused by infestations of the hemlock wooly 
adelgid.
Unit 15: Capuchin Creek, McCreary County, Kentucky, and Campbell 
County, Tennessee
    Proposed Unit 15 includes 4.2 km (2.6 mi) of Capuchin Creek from 
its confluence with Hatfield Creek downstream to its confluence with 
Jellico Creek. Live Cumberland darters have been captured within 
proposed Unit 15 at the Kentucky-Tennessee State line (Thomas 2007, pp. 
11-12). This unit was included in the geographical area occupied by the 
species at the time of listing. A portion of this unit in Kentucky (0.8 
km (0.5 mi)) is in public ownership (DBNF); the remainder in Kentucky 
and Tennessee (3.4 km (2.1 mi)) is in private ownership. Land and 
resource management decisions and activities within the DBNF are guided 
by DBNF's LRMP (USFS 2004, pp. 1-14).
    Land use within the watershed of Capuchin Creek is predominately 
forest, with scattered residences and small farms (cattle and hay 
production). The channel in proposed Unit 15 is relatively stable (PCE 
1), but activities associated with agriculture, silviculture, and 
residential development have contributed to a more open riparian zone, 
increased bank erosion, and some siltation of instream habitats. 
Despite these impacts, proposed Unit 15 continues to provide pool and 
run habitats with suitable sand and bedrock substrates for Cumberland 
darters to use in spawning, foraging, and other behaviors (PCEs 1 and 
2). Flow is adequate as measured during years with average rainfall 
(PCE 3), water quality is adequate (PCE 4), and macroinvertebrate prey 
items are present (PCE 5).
    Within this unit, the Cumberland darter and its habitat may require 
special management considerations or protection to address potential 
adverse effects caused by resource extraction (mining, silviculture, 
natural gas and oil exploration activities), agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, illegal off-road vehicle use, 
and nonpoint source pollution arising from a wide variety of human 
activities.

Rush Darter

    We are proposing eight units as critical habitat for the rush 
darter. The critical habitat areas described below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the rush darter. The eight areas we propose as critical 
habitat are as follows: (1) Beaver Creek, (2) Unnamed Tributary to 
Beaver Creek and Highway 79 Spring Site, (3) Tapawingo or Penny Spring 
and Spring Run, (4) Wildcat Branch, (5) Mill Creek, (6) Doe Branch, (7) 
Little Cove Creek, Cove Spring Site, and (8) Bristow Creek. Table 2 
shows the occupancy of the units and ownership of the proposed 
designated areas for the rush darter.

           Table 2--Occupancy and Ownership of the Proposed Critical Habitat Units for the Rush Darter
----------------------------------------------------------------------------------------------------------------
                                                      Private     State, county,
     Unit           Location         Occupied      ownership km   city ownership   Total length    Total area**
                                                       (mi)           km (mi)         km (mi)         ha (ac)
----------------------------------------------------------------------------------------------------------------
1.............  Beaver Creek....  Yes...........       0.9 (0.6)   < 0.1 (< 0.1)       1.0 (0.6)  ..............
2.............  Unnamed           Yes...........       3.6 (2.2)       0.7 (0.4)       4.3 (2.6)  ..............
                 Tributary to
                 Beaver Creek
                 and Highway 79
                 Spring Site.
3.............  Tapawingo or      Yes...........       0.6 (0.4)  < 0.1 (< 0.06)       0.6 (0.4)      6.7 (16.5)
                 Penny Spring
                 and Spring Run.
4.............  Wildcat Branch..  Yes...........       6.6 (4.1)  < 0.1 (< 0.06)       6.6 (4.1)  ..............
5.............  Mill Creek......  Yes...........       5.9 (3.7)  < 0.1 (< 0.06)       5.9 (3.7)  ..............
6.............  Doe Branch......  Yes...........       4.3 (2.7)  < 0.1 (< 0.06)       4.3 (2.7)  ..............
7.............  Little Cove       Yes...........      11.2 (6.1)  < 0.1 (< 0.06)      11.2 (6.1)      5.1 (12.7)
                 Creek, Cove
                 Spring, Spring
                 Run.
8.............  Bristow Creek...  Yes...........      10.2 (6.3)  < 0.1 (< 0.06)      10.2 (6.3)  ..............
                                                 ---------------------------------------------------------------
    Total *...  ................  ..............  ..............  ..............     42.3 (26.9)     19.4 (21.7)
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
** Total area in ha (ac) are in private ownership.

    We present brief descriptions of each unit and reasons why they 
meet the definition of critical habitat below. The proposed critical 
habitat units include the stream channels of the creek within the 
ordinary high water line, and the flooded spring pool in the case of 
Tapawingo or Penny Springs (Jefferson County) and Cove Springs (Etowah 
County). As defined in 33 CFR 329.11, the ordinary high water line on 
nontidal rivers is the line on the shore established by the 
fluctuations of water and indicated by physical characteristics such as 
a clear, natural water line impressed on the bank; shelving; changes in 
the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. In Alabama, the riparian 
landowner owns the stream to the middle of the channel for non-
navigable streams and rivers. For the spring pools, the area was 
determined and delineated by the presence of emergent vegetation 
patterns as noted on aerial photographs.
    For each stream reach of proposed critical habitat, the upstream 
and downstream boundaries are described generally below; more precise 
descriptions are provided in the Proposed Regulation Promulgation at 
the end of this proposed rule.

[[Page 63383]]

Unit 1: Beaver Creek, Jefferson County, Alabama
    Proposed Unit 1 includes 1.0 km (0.6 mi) of Beaver Creek from the 
confluence with Dry Creek, downstream to the confluence with Turkey 
Creek. This unit was included in the geographical area occupied by the 
species at the time of listing. Almost 0.9 km (0.6 mi), or 94 percent 
of this area is privately owned. The remaining 0.1 km (< 0.1 mi), or 6 
percent, is publicly owned by the City of Pinson or Jefferson County in 
the form of bridge crossings and road easements.
    Beaver Creek contains adequate bottom substrate and emergent 
vegetation for rush darters to use in spawning, foraging, and other 
life processes (PCE 2). Beaver Creek makes available additional habitat 
and spawning sites, and offers connectivity with other rush darter 
populations within the Highway 79 Spring System site and the Unnamed 
Tributary to Beaver Creek (PCE 1).
    Beaver Creek provides habitat for the rush darters with adequate 
number of pools, riffles, runs (PCE 1), and emergent vegetation (PCE 
2). These geomorphic structures provide the species with spawning, 
foraging, and resting areas (PCE 1), along with good water quality, 
quantity, and flow, which support the normal life stages and behavior 
of the rush darter (PCEs 3 and 4), the species' prey sources (PCE 5), 
and associated aquatic vegetation.
    Threats to the rush darter and its habitat at Beaver Creek that may 
require special management of the PCEs include the potential of: 
urbanization activities (such as channel modification for flood 
control, construction of impoundments, and gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to inadequate stormwater management, water 
diversion, or water withdrawal; significant alteration of water 
quality; and significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities, destruction of emergent vegetation, off-road vehicle use, 
sewer, gas and water easements, bridge and road construction and 
maintenance, culvert and pipe installation, and other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water.
    There are three road crossings over Beaver Creek (Pinson Valley 
Parkway, Old Bradford Road, and Spring Street) that at times may limit 
the overall connectivity and movement of the species within this unit. 
Movement might be limited due to changes in flow regime and habitat 
including: emergent vegetation, water quality, water quantity, and 
stochastic events such as drought. Populations of rush darters are 
small and isolated within specific habitat sites of Beaver Creek.
Unit 2: Unnamed Tributary to Beaver Creek and Highway 79 Spring Site, 
Jefferson County, Alabama
    Proposed Unit 2 includes 4.3 km (2.6 mi) of the Unnamed Tributary 
of Beaver Creek and a spring run. The site begins at the Section 1 and 
2 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5 
topographical map (Pinson quadrangle), downstream to its confluence 
with Dry Creek, and includes a spring run beginning at the springhead 
(33.67449, -86.69300) just northwest of Old Pinson Road and 
intersecting with the Unnamed Tributary to Beaver Creek on the west 
side of Highway 79. This unit was included in the geographical area 
occupied by the species at the time of listing.
    Almost 3.6 km (2.2 mi), or 85 percent, of this area is privately 
owned. The remaining 0.7 km (0.4 mi), or 15 percent, is publicly owned 
by the City of Pinson or Jefferson County in the form of bridge 
crossings and road easements.
    The Unnamed Tributary to Beaver Creek supports populations of rush 
darters and is a feeder stream to Beaver Creek (PCEs 1 and 2). The 
Unnamed Tributary to Beaver Creek has been intensely geomorphically 
changed by man over the last 100 years. The majority of this reach has 
been channelized for flood control, as it runs parallel to Highway 79. 
There are several bridge crossings, and the reach has a history of 
industrial uses along the bank. However, owing to the groundwater that 
constantly supplies this reach with clean and flowing water (PCEs 3 and 
4), the reach has been able to support significant emergent vegetation 
in shallow water on the margins to support several rush darter 
populations. The headwaters of the Unnamed Tributary to Beaver Creek is 
characterized by natural flows that are attributed to an abundance of 
spring groundwater discharges contributing adequate water quality, 
water quantity, emergent vegetation and appropriate substrates (PCEs 1, 
2, 3, and 4). Increasing the connectivity of the rush darter 
populations (PCE 1) throughout the reaches of this tributary is an 
essential conservation requirement as it would decrease the 
vulnerability of these populations to stochastic threats. The Highway 
79 Spring Site is the type locality for the species (Bart 2004, p. 
194), supporting populations of rush darters and providing supplemental 
water quantity to the Unnamed Tributary to Beaver Creek (PCEs 1 and 3). 
The reach contains adequate bottom substrate and emergent vegetation 
for rush darters to use in spawning, foraging, and other life processes 
(PCE 2). The Highway 79 Spring site provides habitat and spawning 
sites, and offers connectivity with rush darter populations in the 
Unnamed Tributary to Beaver Creek (PCE 1).
    Threats to the rush darter and its habitat that may require special 
management and protection of PCEs are: Urbanization activities (such as 
channel modification for flood control, and gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to inadequate stormwater management and 
impoundment construction, water diversion, or water withdrawal; 
significant alteration of water quality; and significant changes in 
stream bed material composition and quality as a result of construction 
projects and road maintenance activities, off-road vehicle use, sewer, 
gas and water easements, bridge construction, culvert and pipe 
installation, and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.
Unit 3: Tapawingo or Penny Spring and Spring Run, Jefferson County, 
Alabama
    Proposed Unit 3 includes 0.6 km (0.4 mi) of spring run, 
historically called Tapawingo Plunge, along with 6.7 ha (16.5 ac) of 
flooded spring basin making up Penny Springs. Unit 3 is located south 
of Turkey Creek, north of Bud Holmes Road, and just east of Tapawingo 
Trail Road. The east boundary is at (33.69903, -86.66528): 1.0 km (0.6 
mi) west of Section Line 28 to 29 (T15S, R1W) (U.S. Geological Survey 
7.5 topographical map (Pinson quadrangle)). This unit was included in 
the geographical area occupied by the species at the time of listing. 
All 0.6 km (0.4 mi) stream miles and 6.7 ha (16.5 ac) of Unit 3 is 
privately owned except for that small amount that is publicly owned in 
the form of bridge crossings and road easements.
    The Tapawingo or Penny Spring complex consists of an abundance of 
springs that drain directly into Turkey Creek by means of a large 
spring run at the old railroad crossing and Tapawingo Springs Road 
(PCEs 1 and 2). The historical spring run discharge ranges from 0.03 to 
2.4 cubic meters per second (m\3\/s) (500 to 38,800 gallons per minute 
(gal/min)) (Chandler and Moore 1987, p. 49), and there is an abundance 
of emergent vegetation (PCEs 1, 2, and 3).

[[Page 63384]]

Historically small numbers of rush darter have been collected in the 
spring area.
    Threats to the rush darter and its habitat that may require special 
management and protection of physical and biological features are: 
Urbanization activities (such as channel modification for flood 
control, vegetation management, and gravel extraction) that could 
result in increased bank erosion; significant changes in the existing 
flow regime due to inadequate stormwater management and impoundment 
construction, water diversion, or water withdrawal; significant 
alteration of water quality; significant alteration or destruction of 
aquatic and emergent vegetation, and significant changes in stream bed 
material composition and quality as a result of construction projects 
and maintenance activities, off-road vehicle use, sewer, gas and water 
easements, bridge construction, culvert and pipe installation, and 
other watershed and floodplain disturbances that release sediments or 
nutrients into the water.
Unit 4: Wildcat Branch, Winston County, Alabama
    Proposed Unit 4 includes 6.6 km (4.1 mi) of Wildcat Branch from the 
streams headwaters just east of Winston County Road 29 to the 
confluence with Clear Creek. This unit was included in the geographical 
area occupied by the species at the time of listing. Almost 6.6 km (4.1 
mi), or 100 percent, of this area is privately owned except for that 
small amount that is publicly owned by Winston County in the form of 
bridge crossings and road easements.
    Wildcat Branch provides habitat for rush darters with a network of 
small pools and spring runs, along with an abundance of emergent 
vegetation (PCE 1 and 2). These geomorphic structures provide the 
species with spawning, foraging, and resting areas (PCE 1), along with 
good water quality, quantity, and flow (PCEs 3 and 4), which support 
the normal life stages and behavior of the rush darter, the species' 
prey sources (PCE 5). Rush darters are consistently collected in 
Wildcat Branch, but not in large numbers.
    Threats that may require special management and protection of 
physical and biological features include: Road and roadside 
maintenance, urbanization activities (such as channel modification for 
flood control and gravel extraction) that could result in increased 
bank erosion; significant changes in the existing flow regime due to 
inadequate stormwater management and impoundment construction, water 
diversion, or water withdrawal; significant alteration of water 
quality; significant alteration or destruction of aquatic and emergent 
vegetation, and significant changes in stream bed material composition 
and quality as a result of construction projects and maintenance 
activities, off-road vehicle use, sewer, gas and water easements, 
bridge construction, culvert and pipe installation, and other watershed 
and floodplain disturbances that release sediments or nutrients into 
the water.
Unit 5: Mill Creek, Winston County, Alabama
    Proposed Unit 5 includes 5.9 km (3.7 mi) of Mill Creek from the 
stream headwaters just east of Winston County Road 195 to the 
confluence with Clear Creek. This unit was included in the geographical 
area occupied by the species at the time of listing. Almost 5.9 km (3.7 
mi), or 100 percent, of this area is privately owned except for that 
small amount that is publicly owned by Winston County in the form of 
bridge crossings and road easements.
    Mill Creek provides habitat for the rush darter with a network of 
small pools, and spring runs, along with an abundance of emergent 
vegetation (PCE 1 and 2). These geomorphic structures provide the 
species with spawning, foraging, and resting areas (PCE 1), along with 
good water quality, quantity, and flow (PCEs 3 and 4), which support 
the normal life stages and behavior of the rush darter, the species' 
prey sources (PCE 5). Rush darters are consistently collected in Mill 
Creek.
    Threats that may require special management and protection of PCEs 
include: Road and roadside maintenance, urbanization activities (such 
as channel modification for flood control and gravel extraction) that 
could result in increased bank erosion; significant changes in the 
existing flow regime due to inadequate stormwater management and 
impoundment construction, water diversion, or water withdrawal; 
significant alteration of water quality; significant alteration or 
destruction of aquatic and emergent vegetation, and significant changes 
in stream bed material composition and quality as a result of 
construction projects and maintenance activities, off-road vehicle use, 
sewer, gas and water easements, bridge construction, culvert and pipe 
installation, and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.
Unit 6: Doe Branch, Winston County, Alabama
    Proposed Unit 6 includes 4.3 km (2.7 mi) of Doe Branch from the 
stream headwaters North and West of Section Line 23 and 14 (R9W, T11S; 
Popular Springs Quadrangle) to the confluence with Wildcat Branch. This 
unit was included in the geographical area occupied by the species at 
the time of listing. Almost 4.3 km (2.7 mi), or 100 percent, of this 
area is privately owned except for that small amount that is publicly 
owned by Winston County in the form of bridge crossings and road 
easements.
    Doe Branch provides habitat for the rush darter with a small 
network of small pools, and spring runs, along with adequate emergent 
vegetation (PCE 1 and 2). These geomorphic structures provide the 
species with spawning, foraging, and resting areas (PCE 1), along with 
good water quality, quantity, and flow (PCEs 3 and 4), which support 
the normal life stages and behavior of the rush darter, the species' 
prey sources (PCE 5). Although the species is considered rare in Doe 
Branch, there have been few collection attempts in the stream with a 
few darters captured (Mettee et al. 1989, p. 61). Doe Branch contains 
habitat for the species and is considered occupied. The stream joins 
Wildcat Branch before flowing into Clear Creek.
    Threats that may require special management and protection of 
physical and biological features include: road and roadside 
maintenance, urbanization activities (such as channel modification for 
flood control and gravel extraction) that could result in increased 
bank erosion; significant changes in the existing flow regime due to 
inadequate stormwater management and impoundment construction, water 
diversion, or water withdrawal; significant alteration of water 
quality; significant alteration or destruction of aquatic and emergent 
vegetation, and significant changes in stream bed material composition 
and quality as a result of construction projects and maintenance 
activities, off-road vehicle use, sewer, gas and water easements, 
bridge construction, culvert and pipe installation, and other watershed 
and floodplain disturbances that release sediments or nutrients into 
the water.
Unit 7: Little Cove Creek, Cove Spring and Spring Run, Etowah County, 
Alabama
    Proposed Unit 7 includes 11.2 km (6.1 mi) of Little Cove Creek and 
the Cove Spring run system along with 5.1 ha (12.7 ac) of the spring 
run floodplain. Specifically, the Little Cove Creek section (11.0 km 
(6.0 mi)) is from the intersection of Etowah County Road 179 near the 
creek headwaters, downstream to its confluence with the Locust Fork

[[Page 63385]]

River. The Cove Spring and spring run section includes 0.2 km (0.1 mi) 
of the spring run from the springhead at the West Etowah Water and Fire 
Authority pumping station on Cove Spring Road to the confluence with 
Little Cove Creek and includes 5.1 ha (12.7 ac) of the spring run 
floodplain due south of the pumping facility. This unit was included in 
the geographical area occupied by the species at the time of listing. 
All 11.2 km (6.1 mi) of Unit 7 is privately owned except for that small 
amount that is publicly owned by Etowah County in the form of bridge 
crossings and road easements.
    Little Cove Creek provides habitat for the rush darter with a 
network of small pools, and spring runs, along with an abundance of 
emergent aquatic vegetation (PCE 1 and 2). These geomorphic structures 
provide the species with spawning, foraging, and resting areas (PCE 1), 
along with good water quality, quantity, and flow (PCEs 3 and 4), which 
support the normal life stages and behavior of the rush darter, the 
species' prey sources (PCE 5). Rush darters are collected in Little 
Cove Creek, but not in large numbers. The Cove Spring and Spring Run 
site supports small populations of rush darters and provides 
supplemental water quantity to Little Cove Creek (PCEs 1 and 3). Water 
quantity from the spring averages 0.2 m\3\/s (3,000 gal/min) (Snead 
2011, pers. comm.) (PCE 4). The spring contains an abundance of gravel 
and silt along with significant emergent vegetation for rush darters to 
use in spawning, foraging, and other life processes (PCE 2). The Cove 
Spring and Spring Run site provides habitat and spawning sites, and 
offers connectivity with rush darter populations to Little Cove Creek 
(PCE 1).
    Threats that may require special management and protection of 
physical and biological features include: road and roadside 
maintenance, agricultural and silviculture activities that could result 
in increased bank erosion; significant changes in the existing flow 
regime due to inadequate stormwater management; impoundment 
construction, water diversion, or water withdrawal for livestock and 
irrigation; significant alteration or destruction of aquatic and 
emergent vegetation, significant alteration of water quality due to 
release of chlorinated water and other chemicals into the Cove Spring 
run or Little Cove Creek by the water pumping facility or other 
sources; off-road vehicle use, sewer, gas and water easements, bridge 
construction, culvert and pipe installation, and other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water.
Unit 8: Bristow Creek, Etowah County, Alabama
    Proposed Unit 8 includes 10.2 km (6.3 mi) of Bristow Creek 
beginning from its intersection with Fairview Cove Road, downstream to 
the confluence with the Locust Fork River. This unit was included in 
the geographical area occupied by the species at the time of listing. 
All 10.2 km (6.3 mi) of Bristow Creek, beginning at the bridge at 
Fairview Road, downstream to the confluence with the Locust Fork River 
is privately owned except for that small amount that is publicly owned 
by Etowah County in the form of bridge crossings and road easements.
    Bristow Creek, although channelized in some locations, provides 
habitat and connectivity for the rush darters (PCE 1). Locations within 
the creek have the necessary stream attributes of some small pools, and 
spring runs (PCE 1) along with emergent vegetation (PCE 2). These 
geomorphic structures provide the species with spawning, foraging, and 
resting areas (PCE 1), along with supplemental water quantity and flow 
(PCE 3), which support the normal life stages and behavior of the rush 
darter, the species' prey sources (PCE 5). The rush darter is 
considered rare in Bristow Creek, but sampling has been limited.
    Threats that may require special management and protection of 
physical and biological features include: road and roadside 
maintenance, agricultural and silviculture activities that could result 
in increased bank erosion; significant changes in the existing flow 
regime due to inadequate stormwater management; significant alteration 
or destruction of aquatic and emergent vegetation, impoundment 
construction, water diversion, or water withdrawal for livestock and 
irrigation; off-road vehicle use, sewer, gas and water easements, 
septic tank drain fields, bridge construction and maintenance, culvert 
and pipe installation, and other watershed and floodplain disturbances 
that release sediments or nutrients into the water.

Yellowcheek Darter

    We are proposing four units as critical habitat for the yellowcheek 
darter. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the yellowcheek darter. The four areas on the Little Red 
River that we propose as critical habitat are as follows: (1) Middle 
Fork, (2) South Fork, (3) Archey Fork, and (4) Devil's Fork (Includes 
Turkey Creek and Beech Fork). Table 3 shows the occupancy of the units 
and ownership of the proposed designated areas for the yellowcheek 
darter.

       Table 3--Occupancy and Ownership of the Proposed Critical Habitat Units for the Yellowcheek Darter
----------------------------------------------------------------------------------------------------------------
                                                                      Private     State, county,
        Unit                 Location              Occupied        ownership km   city ownership   Total length
                                                                       (mi)           km (mi)         km (mi)
----------------------------------------------------------------------------------------------------------------
1...................  Middle Fork of Little  Yes................     64.2 (39.9)       6.0 (3.7)     70.2 (43.6)
                       Red River.
2...................  South Fork of Little   Yes................     30.3 (18.8)       1.6 (1.0)     31.9 (19.8)
                       Red River.
3...................  Archey Fork of Little  Yes................     27.1 (16.8)       <= .3(.2)     27.4 (17.0)
                       Red River.
4...................  Devil's Fork of        Yes................     26.4 (16.4)       1.1 (0.7)     27.5 (17.1)
                       Little Red River.
                                                                                                 ---------------
    Total...........  .....................  ...................  ..............  ..............    157.0 (97.5)
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units and reasons why they 
meet the definition of critical habitat for the yellowcheek darter. The 
proposed critical habitat units include the river channels within the 
ordinary high water line. As defined in 33 CFR 329.11, the ordinary 
high water mark on nontidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics, 
such as a clear, natural line impressed on the bank; shelving; changes 
in the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. In Arkansas, the riparian 
landowner owns the stream to the middle of the channel for non-
navigable streams and

[[Page 63386]]

rivers. For each stream reach proposed as a critical habitat unit, the 
upstream and downstream boundaries are described generally below.
Unit 1: Middle Fork of the Little Red River, Searcy, Stone, and Van 
Buren Counties, Arkansas
    Proposed Unit 1 includes 70.2 km (43.6 mi) of the Middle Fork of 
the Little Red River from Searcy County Road 167 approximately 3.4 km 
(2.1 miles) southwest of Leslie, Arkansas, to a point on the stream 7.7 
river km (4.8 mi) downstream (35.66515, -92.25942) of the Arkansas 
Highway 9 crossing of the Middle Fork near Shirley, Arkansas. The lower 
boundary coincides with the 140.5-m (461-ft) elevation of the 
conservation pool for Greers Ferry Lake where suitable habitat becomes 
inundated by Greers Ferry Lake and no longer supports the yellowcheek 
darter. Live yellowcheek darters have been collected from four sites 
within proposed Unit 1. The uppermost site is immediately below the Hwy 
65 Bridge near Leslie, Arkansas, and the lowermost site is immediately 
below the Hwy 9 Bridge in Shirley, Arkansas (Wine and Blumenshine 2002, 
p. 18). This unit was included in the geographical area occupied by the 
species at the time of listing. Approximately 64.2 km (39.9 mi), or 92 
percent, of proposed Unit 1 is privately owned, and 6.0 km (3.7 mi) is 
within the Cherokee Wildlife Management Area owned by the State of 
Arkansas. County and State road crossings exist in all three counties 
and account for less than one percent of total proposed Unit 1 
ownership.
    This unit contains stable riffle areas of moderate to swift 
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain 
surface flows year round (PCE 3). Such characteristics are necessary 
for reproductive and sheltering requirements of yellowcheek darters. 
Water quality within this unit is also characterized by moderate 
temperatures, relatively high dissolved oxygen concentrations, moderate 
pH, and low levels of pollutants (PCE 4), which support abundant 
populations of aquatic macroinvertebrates that serve as prey items for 
yellowcheek darters (PCE 5).
    The yellowcheek darter and its habitat may require special 
management considerations or protection to address changes in the 
existing stream ecology due to activities as associated with natural 
gas development, livestock grazing, county road maintenance, timber 
harvest, water diversion, gravel mining, and rock harvesting 
operations. Alteration of water quality and changes in streambed 
material composition from any other activities that would release 
sediments, nutrients, or toxins into the water also threaten the 
yellowcheek darter.
Unit 2: South Fork of the Little Red River, Van Buren County, Arkansas
    Proposed Unit 2 includes 31.9 km (19.8 mi) of the South Fork of the 
Little Red River from Van Buren County Road 9 three miles north of 
Scotland, Arkansas, to a point on the stream (35.57364, -92.42718) 
approximately 5.5 river km (3.4 mi) downstream of U.S. Highway 65 in 
Clinton, Arkansas, where suitable habitat becomes inundated by Greers 
Ferry Lake and no longer supports the yellowcheek darter. Live 
yellowcheek darters have been collected from four sites along the South 
Fork Little Red River, including the uppermost boundary at the County 
Road 9 Bridge and just above the Hwy 65 Bridge in Clinton, Arkansas. 
This unit was included in the geographical area occupied by the species 
at the time of listing. Approximately 30.3 km (18.8 mi), or 95 percent, 
of proposed Unit 2 is privately owned, and 1.6 km (1.0 mi) is within 
the Cherokee Wildlife Management Area owned by the State of Arkansas or 
the city limits of Clinton, Arkansas. County and State road crossings 
account for less than one percent of total Unit 2 ownership.
    This unit contains stable riffle areas of moderate to swift 
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain 
surface flows year round (PCE 3). Such characteristics are necessary 
for reproductive and sheltering requirements of yellowcheek darters. 
Water quality within this unit is also characterized by moderate 
temperatures, relatively high dissolved oxygen concentrations, moderate 
pH, and low levels of pollutants (PCE 4), which support abundant 
populations of aquatic macroinvertebrates that serve as prey items for 
yellowcheek darters (PCE 5).
    The yellowcheek darter and its habitat may require special 
management considerations or protection to address changes in the 
existing stream ecology due to activities as associated with natural 
gas development, livestock grazing, county road maintenance, timber 
harvest, water diversion, and gravel mining. Alteration of water 
quality and changes in streambed material composition from any other 
activities that would release sediments, nutrients, or toxins into the 
water also threaten the yellowcheek darter.
Unit 3: Archey Fork of the Little Red River, Van Buren County, Arkansas
    Proposed Unit 3 includes 27.4 km (17.0 mi) of the Archey Fork of 
the Little Red River from its junction with South Castleberry Creek to 
its confluence with the South Fork of the Little Red River near 
Clinton, Arkansas. Live yellowcheek darters have been collected just 
above the confluence of the Archey and South Forks (Wine et al. 2000, 
p. 10) and at a point 15.3 km (9.5 mi) above the confluence (Brophy and 
Stoeckel 2006, p. 3). This unit was included in the geographical area 
occupied by the species at the time of listing. Proposed Unit 3 is 
nearly 100 percent privately owned. County and state road crossings and 
portions within the city of Clinton, Arkansas, account for less than 
one percent of total Unit 3 ownership.
    This unit contains stable riffle areas of moderate to swift 
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain 
surface flows year round (PCE 3). Such characteristics are necessary 
for reproductive and sheltering requirements of yellowcheek darters. 
Water quality within this unit is also characterized by moderate 
temperatures, relatively high dissolved oxygen concentrations, moderate 
pH, and low levels of pollutants (PCE 4), which support abundant 
populations of aquatic macroinvertebrates that serve as prey items for 
yellowcheek darters (PCE 5).
    The yellowcheek darter and its habitat may require special 
management considerations or protection to address changes in the 
existing stream ecology due to activities as associated with natural 
gas development, livestock grazing, county road maintenance, timber 
harvest, water diversion, and gravel mining. Alteration of water 
quality and changes in streambed material composition from any other 
activities that would release sediments, nutrients, or toxins into the 
water also threaten the yellowcheek darter.
Unit 4: Devil's Fork of the Little Red River (Including Turkey Creek 
and Beech Fork), Stone and Cleburne Counties, Arkansas
    Proposed Unit 4 includes 27.5 km (17.1 mi) of stream from Stone 
County Road 21 approximately 3 miles north of Prim, Arkansas, to a 
point (35.63556, -92.03400) on the Devil's Fork approximately 5.1 km 
(3.2 mi) southeast of Woodrow, Arkansas, where suitable habitat becomes 
inundated by Greers Ferry Lake and no longer supports the yellowcheek 
darter. Live yellowcheek darters have not been collected at the

[[Page 63387]]

uppermost site (Turkey Creek) since 1999 (Mitchell et al. 2002, p. 
131). However, Wine and Blumenshine (2002, p. 11) did detect 
yellowcheek darters in the Beech Fork and it is likely that the species 
persists in very low numbers within the upper portions of the watershed 
during normal flow years. This unit was included in the geographical 
area occupied by the species at the time of listing. Approximately 26.4 
km (16.4 mi), or 96 percent, of proposed Unit 4 is privately owned, and 
1.1 km (0.7 mi) is within the Cherokee Wildlife Management Area owned 
by the State of Arkansas. County road crossings exist in both counties 
and account for less than one percent of total Unit 4 ownership.
    This unit contains stable riffle areas of moderate to swift 
velocity (PCE 1) that are relatively silt-free (PCE 2) and maintain 
surface flows year round (PCE 3). Such characteristics are necessary 
for reproductive and sheltering requirements of yellowcheek darters. 
Water quality within this unit is also characterized by moderate 
temperatures, relatively high dissolved oxygen concentrations, moderate 
pH, and low levels of pollutants (PCE 4), which support abundant 
populations of aquatic macroinvertebrates that serve as prey items for 
yellowcheek darters (PCE 5).
    The yellowcheek darter and its habitat may require special 
management considerations or protection to address changes in the 
existing stream ecology due to activities as associated with natural 
gas development, livestock grazing, county road maintenance, timber 
harvest, water diversion, and gravel mining. Alteration of water 
quality and changes in streambed material composition from any other 
activities that would release sediments, nutrients, or toxins into the 
water also threaten the yellowcheek darter.

Chucky Madtom

    We are proposing one unit as critical habitat for the chucky 
madtom. The critical habitat area we describe below constitutes our 
current best assessment of the area that meets the definition of 
critical habitat for the chucky madtom. Lands in the critical habitat 
unit are either in private ownership or public ownership (Greene County 
road easements). In Tennessee, landowners own the land under non-
navigable streams (e.g., the stream channel or bottom), but the water 
is under State jurisdiction. The area we propose as critical habitat 
is: Little Chucky Creek, and was occupied at the time of listing. Table 
4 shows the occupancy of the unit and ownership of the proposed 
designated area for the chucky madtom.

          Table 4--Occupancy and Ownership of the Proposed Critical Habitat Unit for the Chucky Madtom
----------------------------------------------------------------------------------------------------------------
                                                                      Private     State, county,
        Unit                 Location              Occupied        ownership km   city ownership   Total length
                                                                       (mi)           km (mi)         km (mi)
----------------------------------------------------------------------------------------------------------------
                      Little Chucky Creek..  Yes................     31.8 (19.7)  < 0.1 (< 0.06)     31.9 (19.8)
                                                                                                 ---------------
    Total...........  .....................  ...................  ..............  ..............     31.9 (19.8)
----------------------------------------------------------------------------------------------------------------

    We present a brief description of the unit and reasons why it meets 
the definition of critical habitat for the chucky madtom. The proposed 
critical habitat unit includes the river channel within the ordinary 
high water line. As defined in 33 CFR 329.11, the ordinary high water 
mark on nontidal rivers is the line on the shore established by the 
fluctuations of water and indicated by physical characteristics, such 
as a clear, natural line impressed on the bank; shelving; changes in 
the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. For the stream reach 
proposed as a critical habitat unit, the upstream and downstream 
boundaries are described generally below; a more precise description is 
provided in the Proposed Regulation Promulgation at the end of this 
proposed rule.
Unit 1: Little Chucky Creek, Greene County, Tennessee
    This unit includes 31.9 km (19.8 mi) of Little Chucky Creek from 
its confluence with an unnamed tributary, downstream to its confluence 
with the Nolichucky River, at the Greene and Cocke County line, 
Tennessee. Although the chucky madtom has not been observed since 2004, 
we still consider it to exist in Little Chucky Creek. Observations of 
the species have always been sporadic, and it is a cryptic species that 
is hard to locate. This unit was included in the geographical area 
occupied by the species at the time of listing. Almost 31.9 km (19.8 
mi), or 100 percent, of this area is privately owned except for that 
small amount that is publicly owned by Greene County in the form of 
bridge crossings and road easements.
    This proposed unit contains stable riffle and run areas of moderate 
to swift velocity (PCE 1); flat gravel, cobble, and slab-rock boulders 
that are relatively silt-free (PCE 2); and surface flows that are 
maintained year round (PCE 3). Such characteristics are necessary for 
reproductive and sheltering requirements of chucky madtoms. Water 
quality within this unit is also characterized by moderate 
temperatures, relatively high dissolved oxygen concentrations, moderate 
pH, and low levels of pollutants (PCE 4), which support abundant 
populations of aquatic macroinvertebrates that serve as prey items for 
the chucky madtom (PCE 5).
    This critical habitat unit is located on private property and is 
not presently under the special management or protection provided by a 
legally operative plan or agreement for the conservation of the 
species. Various activities in or adjacent to the critical habitat unit 
described in this proposed rule may affect one or more of the PCEs. For 
example, features in this proposed critical habitat designation may 
require special management due to threats posed by agricultural 
activities (e.g., row crops and livestock), lack of adequate riparian 
buffers, construction and maintenance of State and county roads, gravel 
mining, and nonpoint source pollution arising from a wide variety of 
human activities.

Laurel Dace

    We are proposing six units as critical habitat for the laurel dace. 
The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for the laurel dace. The six areas we propose as critical habitat are 
as follows: (1) Bumbee Creek, (2) Youngs Creek, (3) Moccasin Creek, (4) 
Cupp Creek, (5) Horn Branch, and (6) Soddy Creek. Lands in critical 
habitat units are either in private ownership or public

[[Page 63388]]

ownership (county road easements). In Tennessee, landowners own the 
land under non-navigable streams (e.g., the stream channel or bottom), 
but the water is under State jurisdiction. Table 5 shows the occupancy 
of the units and ownership of the proposed designated areas for the 
laurel dace.

           Table 5--Occupancy and Ownership of the Proposed Critical Habitat Units for the Laurel Dace
----------------------------------------------------------------------------------------------------------------
                                                                      Private     State, county,
        Unit                 Location              Occupied        ownership km   city ownership   Total length
                                                                       (mi)           km (mi)         km (mi)
----------------------------------------------------------------------------------------------------------------
1...................  Bumbee Creek.........  Yes................       7.7 (4.7)  < 0.1 (< 0.06)       7.8 (4.8)
2...................  Youngs Creek.........  Yes................       7.8 (4.8)  < 0.1 (< 0.06)       7.9 (4.9)
3...................  Moccasin Creek.......  Yes................       8.9 (5.5)  < 0.1 (< 0.06)       9.0 (5.6)
4...................  Cupp Creek...........  Yes................       4.9 (3.0)  < 0.1 (< 0.06)       5.0 (3.1)
5...................  Horn Branch..........  Yes................       3.9 (2.4)  < 0.1 (< 0.06)       4.0 (2.5)
6...................  Soddy Creek..........  Yes................       8.3 (5.1)  < 0.1 (< 0.06)       8.4 (5.2)
                                                                                                 ---------------
    Total...........  .....................  ...................  ..............  ..............     42.2 (26.2)
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units and reasons why they 
meet the definition of critical habitat for the laurel dace. The 
proposed critical habitat units include the river channels within the 
ordinary high water line. As defined in 33 CFR 329.11, the ordinary 
high water mark on nontidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics, 
such as a clear, natural line impressed on the bank; shelving; changes 
in the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. For each stream reach 
proposed as a critical habitat unit, the upstream and downstream 
boundaries are described generally below; more precise descriptions are 
provided in the Proposed Regulation Promulgation at the end of this 
proposed rule.
Unit 1: Bumbee Creek, Bledsoe and Rhea Counties, Tennessee
    Proposed Unit 1 includes 8.0 km (5.0 mi) of Bumbee Creek from its 
headwaters in Bledsoe County, downstream to its confluence with 
Mapleslush Branch in Rhea County, Tennessee. This unit was included in 
the geographical area occupied by the species at the time of listing. 
Almost 7.9 km (4.9 mi), or 100 percent, of this area is privately owned 
except for that small amount that is publicly owned by Bledsoe and Rhea 
Counties in the form of bridge crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free, contain cobble and slab-rock boulder substrates 
with canopy cover (PCE 2), and surface flows that are maintained year 
round (PCE 3). Such characteristics are necessary for reproductive and 
sheltering requirements of laurel dace. Water quality within this unit 
is also characterized by moderate temperatures, relatively high 
dissolved oxygen concentrations, moderate pH, and low levels of 
pollutants (PCE 4), which support abundant populations of aquatic 
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.
Unit 2: Youngs Creek, Bledsoe and Rhea Counties, Tennessee
    Proposed Unit 2 includes 7.8 km (4.8 mi) of Youngs Creek from its 
headwaters in Bledsoe County, downstream to its confluence with 
Moccasin Creek in Rhea County, Tennessee. This unit was included in the 
geographical area occupied by the species at the time of listing. 
Almost 7.7 km (4.7 mi), or 100 percent, of this area is privately owned 
except for that small amount that is publicly owned by Bledsoe and Rhea 
Counties in the form of bridge crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free, contain cobble and slab-rock boulder substrates 
with canopy cover (PCE 2), and surface flows that are maintained year 
round (PCE 3). Such characteristics are necessary for reproductive and 
sheltering requirements of laurel dace. Water quality within this unit 
is also characterized by moderate temperatures, relatively high 
dissolved oxygen concentrations, moderate pH, and low levels of 
pollutants (PCE 4), which support abundant populations of aquatic 
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.
Unit 3: Moccasin Creek, Bledsoe County, Tennessee
    Proposed Unit 3 includes 9.0 km (5.6 mi) of Moccasin Creek from its 
headwaters downstream to 0.1 km (0.6 mi) below its confluence with Lick 
Creek in Bledsoe County, Tennessee. This unit was included in the 
geographical area occupied by the species at the time of listing. 
Almost 8.9 km (5.5 mi), or 100 percent, of this area is privately owned 
except for that small amount that is publicly owned by Bledsoe County 
in the form of bridge crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free, contain cobble and slab-rock boulder substrates 
with canopy cover

[[Page 63389]]

(PCE 2), and surface flows that are maintained year round (PCE 3). Such 
characteristics are necessary for reproductive and sheltering 
requirements of laurel dace. Water quality within this unit is also 
characterized by moderate temperatures, relatively high dissolved 
oxygen concentrations, moderate pH, and low levels of pollutants (PCE 
4), which support abundant populations of aquatic macroinvertebrates 
that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.
Unit 4: Cupp Creek, Bledsoe County, Tennessee
    Proposed Unit 4 includes 5.0 km (3.1 mi) of Cupp Creek from its 
headwaters downstream to its confluence with an unnamed tributary in 
Bledsoe County, Tennessee. This unit was included in the geographical 
area occupied by the species at the time of listing. Almost 4.9 km (3.0 
mi), or 100 percent, of this area is privately owned except for that 
small amount that is publicly owned by Bledsoe County in the form of 
bridge crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free; contain cobble and slab-rock boulder substrates 
with canopy cover (PCE 2), and surface flows that are maintained year 
round (PCE 3). Such characteristics are necessary for reproductive and 
sheltering requirements of laurel dace. Water quality within this unit 
is also characterized by moderate temperatures, relatively high 
dissolved oxygen concentrations, moderate pH, and low levels of 
pollutants (PCE 4), which support abundant populations of aquatic 
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.
Unit 5: Horn Branch, Bledsoe County, Tennessee
    Proposed Unit 5 includes 4.0 km (2.5 mi) of Horn Branch from its 
headwaters downstream to its confluence with Rock Creek in Bledsoe 
County, Tennessee. This unit was included in the geographical area 
occupied by the species at the time of listing. Almost 3.9 km (2.4 mi), 
or 100 percent, of this area is privately owned except for that small 
amount that is publicly owned by Bledsoe County in the form of bridge 
crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free, contain cobble and slab-rock boulder substrates 
with canopy cover (PCE 2), and surface flows that are maintained year 
round (PCE 3). Such characteristics are necessary for reproductive and 
sheltering requirements of laurel dace. Water quality within this unit 
is also characterized by moderate temperatures, relatively high 
dissolved oxygen concentrations, moderate pH, and low levels of 
pollutants (PCE 4), which support abundant populations of aquatic 
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.
Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, Tennessee
    Proposed Unit 6 includes 8.4 km (5.2 mi) of Soddy Creek from its 
headwaters in Sequatchie County, downstream to its confluence with 
Harvey Creek in Sequatchie County, Tennessee. This unit was included in 
the geographical area occupied by the species at the time of listing. 
Almost 8.3 km (5.1 mi), or 100 percent, of this area is privately owned 
except for a small amount that is publicly owned by Sequatchie and 
Bledsoe Counties in the form of bridge crossings and road easements.
    This unit contains stable headwater streams (PCE 1) that are 
relatively silt-free, contain cobble and slab-rock boulder substrates 
with canopy cover (PCE 2), and surface flows that are maintained year 
round (PCE 3). Such characteristics are necessary for reproductive and 
sheltering requirements of laurel dace. Water quality within this unit 
is also characterized by moderate temperatures, relatively high 
dissolved oxygen concentrations, moderate pH, and low levels of 
pollutants (PCE 4), which support abundant populations of aquatic 
macroinvertebrates that serve as prey items for laurel dace (PCE 5).
    Various activities in or adjacent to these areas of proposed 
critical habitat may affect one or more of the physical and biological 
features. For example, features in this proposed critical habitat 
designation may require special management due to threats posed by 
resource extraction (coal and gravel mining, silviculture, natural gas 
and oil exploration activities), agricultural activities (row crops and 
livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, nonpoint source pollution 
arising from a wide variety of human activities, and canopy loss caused 
by infestations of the hemlock wooly adelgid. These threats are in 
addition to random effects of drought, floods, or other natural 
phenomena.

Effects of Critical Habitat Designation

Section 7 Consultation
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued

[[Page 63390]]

existence of any species proposed to be listed under the Act or result 
in the destruction or adverse modification of proposed critical 
habitat.
    Decisions by the 5th and 9th Circuits Court of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species or avoid the 
likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the species. As discussed 
above, the role of critical habitat is to support life-history needs of 
the species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace. These activities include, but 
are not limited to:
    (1) Actions that would alter the geomorphology of stream habitats. 
Such activities could include, but are not limited to, instream 
excavation or dredging, impoundment, channelization, road and bridge 
construction, mining, and discharge of fill materials. These activities 
could cause aggradation or degradation of the channel bed elevation or 
significant bank erosion, result in entrainment or burial of these 
fishes, and cause other direct or cumulative adverse effects to these 
species.
    (2) Actions that would significantly alter the existing flow regime 
or water quantity. Such activities could include, but are not limited 
to, impoundment, water diversion, water withdrawal, and hydropower 
generation. These activities could eliminate or reduce the habitat 
necessary for growth and reproduction of these fishes.
    (3) Actions that would significantly alter water quantity or water 
quality (for example, temperature, pH, contaminants, and excess 
nutrients). Such activities could include, but are not limited to, 
hydropower discharges, or the release of chemicals, biological 
pollutants, or heated effluents into surface water or connected 
groundwater at a point source or by dispersed release (nonpoint 
source). These activities could alter water conditions that are beyond 
the tolerances of these fishes and result in direct or cumulative 
adverse effects to the species.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, construction projects, livestock grazing, timber harvest, 
off-road vehicle use, and other watershed and floodplain disturbances 
that release sediments or nutrients into the water. These activities 
could eliminate or reduce habitats necessary for the growth and 
reproduction of these fishes by causing excessive sedimentation or 
nutrification.

Exemptions

Application of Section 4(a)(3) of the Act
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)

[[Page 63391]]

required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act
    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, and any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If the analysis indicates that the benefits of exclusion 
outweigh the benefits of inclusion, the Secretary may exercise his 
discretion to exclude the area only if such exclusion would not result 
in the extinction of the species.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Tennessee Ecological Services 
Field Office directly (see FOR FURTHER INFORMATION CONTACT section). 
During the development of a final designation, we will consider 
economic impacts, public comments, and other new information, and areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this proposal, we have determined that there is one 
conservation agreement that exists for the yellowcheek darter in the 
upper Little Red River, Arkansas. The yellowcheek darter is currently 
covered under a joint Candidate Conservation Agreement with Assurances 
(CCAA) in the upper Little Red River watershed in Arkansas along with 
the endangered speckled pocketbook mussel. The CCAA will convert to a 
SHA, as the yellowcheek darter is listed as endangered and would be 
covered by an enhancement of survival permit, which expires January 1, 
2044. We welcome comments pertaining to designation of critical habitat 
in the CCAA coverage area. Designation of critical habitat for the 
yellowcheek darter may be also beneficial to the federally endangered 
speckled pocketbook mussel given that extensive range overlap and water 
quality requirements occurs between the two species.
    There are no HCPs or other management plans for the Cumberland 
darter, rush darter, yellowcheek darter, chucky madtom, or laurel dace, 
and the proposed designation does not include any tribal lands or trust 
resources. We anticipate no impact on tribal lands, partnerships, or 
HCPs from this proposed critical habitat designation.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least 1 to 2 appropriate and independent specialists for 
each species regarding this proposed

[[Page 63392]]

rule. The purpose of peer review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We will invite these peer reviewers to comment during this 
public comment period on our specific assumptions and conclusions in 
this proposed designation of critical habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, the final decision may differ from 
this proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the Tennessee Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings, as well as how 
to obtain reasonable accommodations, in the Federal Register and local 
newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review-- Executive Order 12866
    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. This draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, we will announce availability of the draft 
economic analysis of the proposed designation in the Federal Register 
and reopen the public comment period for the proposed designation. We 
will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. On 
the basis of the development of our proposal, we have identified 
certain sectors and activities that may potentially be affected by a 
designation of critical habitat for these five fishes. These sectors 
include coal, oil, and natural gas operations; timber operations; 
industrial development; urbanization; and the accompanying 
infrastructure associated with such projects such as road, storm water 
drainage, and bridge and culvert construction and maintenance.
    We have concluded that deferring the RFA finding until completion 
of the draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that we make a sufficiently informed determination based on 
adequate economic information and provide the necessary opportunity for 
public comment.
Energy Supply, Distribution, or Use--Executive Order 13211
    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Natural gas and oil exploration and development activities 
occur or could potentially occur in the Cumberland darter (13 of 15 
critical habitat units) and Yellowcheek darter (4 of 4 critical habitat 
units) proposed critical habitat. However, compliance with State 
regulatory requirements or voluntary BMPs would be expected to minimize 
impacts of natural gas and oil exploration and development in the areas 
of proposed critical habitat for both species. The measures for natural 
gas and oil exploration and development are generally not considered a 
substantial cost compared with overall project costs and are already 
being implemented by oil and gas companies.
    Coal mining occurs or could potentially occur in 11 of the 15 
proposed critical habitat units for the Cumberland darter. Incidental 
take for listed species associated with surface coal mining activities 
is currently covered under a programmatic, non-jeopardy biological 
opinion between the Office of Surface Mining and the Service completed 
in 1996 (Service 1996, entire). The biological opinion covers existing, 
proposed, and future endangered and threatened species that may be 
affected by the implementation and administration of surface coal 
mining programs under the Surface Mining Control and Reclamation Act of 
1977. Through its analysis, the Service concluded that the proposed 
action (surface coal mining and reclamation activities) was not likely 
to jeopardize the continued existence of any threatened, endangered, or 
proposed species or result in adverse modification of designated or 
proposed critical habitat. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required. However, 
we will further evaluate this issue as we conduct our economic 
analysis, and review and revise this assessment as warranted.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local,

[[Page 63393]]

tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) A condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) This rule would not significantly or uniquely affect small 
governments. The lands being proposed for Cumberland darter critical 
habitat designation are owned by the DBNF and private landowners. The 
lands being proposed for rush darter critical habitat designation are 
mostly owned by private landowners; a small portion of the City of 
Pinson; and road easements in Etowah, Jefferson, and Winston Counties, 
Alabama. The lands being proposed for yellowcheek darter are mostly 
owned by private landowners; a small portion are owned by the State of 
Arkansas (Cherokee Wildlife Management Area and road easements); and 
road easements in Cleburne, Searcy, Stone, and Van Buren Counties, 
Arkansas. Most of the lands being proposed for chucky madtom are 
private, a small portion consisting of road easements in Greene County, 
Tennessee. Most of the lands being proposed for laurel dace are located 
on private lands, a small portion consisting of road easements in 
Bledsoe, Rhea, and Sequatchie Counties, Tennessee. Therefore, a Small 
Government Agency Plan is not required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment if appropriate.
Takings--Executive Order 12630
    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Cumberland darter, rush darter, yellowcheek 
darter, chucky madtom, and laurel dace in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this designation of critical habitat for these five 
species does not pose significant takings implications for lands within 
or affected by the designation.
Federalism--Executive Order 13132
    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Kentucky, Alabama, Arkansas, and Tennessee. The designation 
of critical habitat in areas currently occupied by these five fishes 
may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because the areas that 
contain the physical and biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist these local governments in long-range planning (rather than 
having them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical and biological features essential to the 
conservation of the Cumberland darter, rush darter, yellowcheek darter, 
chucky madtom, and laurel dace within the designated areas to assist 
the public in understanding the habitat needs of the species.

[[Page 63394]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F. 3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Clarity of the Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise this rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands that were occupied by 
the Cumberland darter, rush darter, yellowcheek darter, chucky madtom, 
or laurel dace at the time of listing that contain the features 
essential for conservation of these species, and no tribal lands 
unoccupied by these five species that are essential for the 
conservation of these species. Therefore, we are not proposing to 
designate critical habitat for these five species on tribal lands.

References Cited

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

Author(s)

    The primary authors of this package are the staff members of the 
Arkansas, Kentucky, Mississippi, and Tennessee Ecological Services 
Field Offices.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    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.

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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population  where                     When       Critical     Special
                                                            Historic  range       endangered  or        Status        listed      habitat       rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Dace, laurel.....................  Chrosomus saylori...  U.S.A (TN)..........  Entire..............  E                     791     17.95(e)           NA
 
                                                                      * * * * * * *
Darter, Cumberland...............  Etheostoma susanae..  U.S.A. (KY, TN).....  Entire..............  E                     791     17.95(e)           NA
 
                                                                      * * * * * * *
Darter, rush.....................  Etheostoma            U.S.A. (AL).........  Entire..............  E                     791     17.95(e)           NA
                                    phytophilum.
 

[[Page 63395]]

 
                                                                      * * * * * * *
Darter, yellowcheek..............  Etheostoma moorei...  U.S.A. (AR).........  Entire..............  E                     791     17.95(e)           NA
 
                                                                      * * * * * * *
Madtom, chucky...................  Noturus crypticus...  U.S.A. (TN).........  Entire..............  E                     791     17.95(e)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, amend paragraph (e) by adding entries for 
``Laurel Dace (Chrosomus saylori)'', ``Cumberland Darter (Etheostoma 
susanae)'', ``Rush Darter (Etheostoma phytophilum)'', ``Yellowcheek 
Darter (Etheostoma moorei)'', and ``Chucky madtom (Noturus crypticus)'' 
in the same alphabetical order that those species appear in the table 
at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Laurel Dace (Chrosomus saylori)
    (1) Critical habitat units are depicted for Bledsoe, Rhea, and 
Sequatchie Counties, Tennessee, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
laurel dace consist of five components:
    (i) Pool and run habitats of geomorphically stable first- to 
second-order streams with riparian vegetation; cool, clean, flowing 
water; shallow depths; and connectivity between spawning, foraging, and 
resting sites to promote gene flow throughout the species' range.
    (ii) Stable bottom substrates composed of relatively silt-free 
cobble and slab-rock boulder substrates with undercut banks and canopy 
cover. Relatively silt-free is defined for the purpose of this rule as 
silt or fine sand within interstitial spaces of substrates in amounts 
low enough to have minimal impact to the species.
    (iii) An instream flow regime (magnitude, frequency, duration, and 
seasonality of discharge over time) sufficient to provide permanent 
surface flows, as measured during years with average rainfall, and 
maintain benthic habitats utilized by the species.
    (iv) Adequate water quality characterized by moderate stream 
temperatures, acceptable dissolved oxygen concentrations, moderate pH, 
and low levels of pollutants. Adequate water quality is defined for the 
purpose of this rule as the quality necessary for normal behavior, 
growth, and viability of all life stages of the laurel dace.
    (v) Prey base of aquatic macroinvertebrates, including midge 
larvae, caddisfly larvae, and stonefly larvae.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat unit maps. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Tennessee State Plane, 
Lambert Conformal Conic Projection, units feet. Upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees and projected in WGS 1984.
    (5) Note: Overview of Critical Habitat Locations for Laurel Dace in 
Tennessee follows:

[[Page 63396]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.000

    (6) Units 1, 2, and 3: Bumbee Creek and Youngs Creek, Bledsoe and 
Rhea Counties, Tennessee; and Moccasin Creek, Bledsoe County, 
Tennessee.
    (i) Unit 1 includes 8.0 km (5.0 mi) of Bumbee Creek from its 
headwaters at (35.68933, -84.99763) in Bledsoe County, downstream to 
its confluence with Mapleslush Branch (35.66833, -84.94714) in Rhea 
County, Tennessee.
    (ii) Unit 2 includes 7.8 km (4.8 mi) of Youngs Creek from its 
headwaters at (35.68745, -85.00261) and (35.67015, -85.00935) in 
Bledsoe County, downstream to its confluence with Moccasin Creek 
(35.65003, -84.98665) in Rhea County, Tennessee.
    (iii) Unit 3 includes 9.0 km (5.6 mi) of Moccasin Creek from its 
headwaters at (35.71313, -85.02109) and (35.71179, -85.02662) 
downstream to 0.1 km (0.6 mi) below its confluence with Lick Creek 
(35.07462, -85.02876) in Bledsoe County, Tennessee.
    (iv) Note: Map of Units 1 (Bumbee Creek), 2 (Youngs Creek), and 3 
(Moccasin Creek) of critical habitat for the laurel dace follows:

[[Page 63397]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.001

    (7) Unit 4: Cupp Creek, Bledsoe County, Tennessee.
    (i) Unit 4 includes 5.0 km (3.1 mi) of Cupp Creek from its 
headwaters at (35.49533, -85.19120) downstream to its confluence with 
an unnamed tributary (35.48597, -85.15334) in Bledsoe County, 
Tennessee.
    (ii) Note: Map of Unit 4 (Cupp Creek) of critical habitat for the 
laurel dace follows:

[[Page 63398]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.002

    (8) Unit 5: Horn Branch, Bledsoe County, Tennessee.
    (i) Unit 5 includes 4.0 km (2.5 mi) of Horn Branch from its 
headwaters (35.43605, -85.25560) downstream to its confluence with Rock 
Creek (35.40999, -85.23731), Bledsoe County, Tennessee.
    (ii) Note: Map of Unit 5 (Horn Branch) of critical habitat for the 
laurel dace follows:

[[Page 63399]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.003

    (9) Unit 6: Soddy Creek, Sequatchie and Bledsoe Counties, 
Tennessee.
    (i) Unit 6 includes 8.4 km (5.2 mi) of Soddy Creek from its 
headwaters at (35.39107, -85.28803) and (35.37926, -85.28331), 
Sequatchie County, downstream to its confluence with Harvey Creek 
(35.35422, -85.25133), in Sequatchie County, Tennessee.
    (ii)Note: Map of Unit 6 (Soddy Creek) of critical habitat for the 
laurel dace follows:

[[Page 63400]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.004

* * * * *
Cumberland Darter (Etheostoma susanae)
    (1) Critical habitat units are depicted for McCreary and Whitley 
Counties, Kentucky, and Campbell and Scott Counties, Tennessee, on the 
maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
Cumberland darter consist of five components:
    (i) Shallow pools and gently flowing runs of geomorphically stable 
second- to fourth-order streams with connectivity between spawning, 
foraging, and resting sites to promote gene flow throughout the 
species' range.
    (ii) Stable bottom substrates composed of relatively silt-free sand 
and sand-covered bedrock, boulders, large cobble, woody debris, or 
other cover.
    (iii) An instream flow regime (magnitude, frequency, duration, and 
seasonality of discharge over time) sufficient to provide permanent 
surface flows, as measured during years with average rainfall, and 
maintain benthic habitats utilized by the species.
    (iv) Adequate water quality characterized by moderate stream 
temperatures, acceptable dissolved oxygen concentrations, moderate pH, 
and low levels of pollutants. Adequate water quality is defined for the 
purpose of this rule as the quality necessary for normal behavior, 
growth, and viability of all life stages of the Cumberland darter.
    (v) Prey base of aquatic macroinvertebrates, including midge 
larvae, mayfly nymphs, caddisfly larvae, and microcrustaceans.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, bridges, runways, roads, and other paved areas) 
and the land on which they are located existing within the legal 
boundaries on the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Tennessee State Plane, 
Lambert Conformal Conic Projection, units feet. Upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees and projected in WGS 1984.
    Note: Overview of Critical Habitat Locations for the Cumberland 
Darter in Tennessee and Kentucky follows:
BILLING CODE 4310-55-P

[[Page 63401]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.005

    (6) Units 1 and 2: Bunches Creek and Calf Pen Fork, Whitley County, 
Kentucky.
    (i) Unit 1 includes 5.3 km (3.3 mi) of Bunches Creek from the 
Seminary Branch and Amos Falls Branch confluence (36.82754, -84.26958) 
downstream to its confluence with the Cumberland River (36.83270, -
84.31787).
    (ii) Unit 2 includes 2.9 km (1.8 mi) of Calf Pen Fork from its 
confluence with Polly Branch (36.82955, -84.30191) downstream to its 
confluence with Bunches Creek (36.82935, -83.30215).
    (iii) Note: Map of Units 1 (Bunches Creek) and 2 (Calf Pen Fork) of 
critical habitat for the Cumberland darter follows:

[[Page 63402]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.006

    (7) Unit 3: Youngs Creek, Whitley County, Kentucky.
    (i) Unit 3 includes 7.4 km (4.6 mi) of Youngs Creek from Brays 
Chapel Road (36.83902, -84.22657) downstream to its confluence with the 
Cumberland River (36.81601, -84.21902).
    (ii)Note: Map of Unit 3 (Youngs Creek) of critical habitat for the 
Cumberland darter follows:

[[Page 63403]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.007

    (8) Units 4, 5, 6, 7, and 8: Barren Fork, Indian Creek, Cogur Fork, 
Kilburn Fork, and Laurel Fork, McCreary County, Kentucky.
    (i) Unit 4 includes 6.3 km (3.9 mi) of Barren Fork from its 
confluence with an unnamed tributary (36.76642, -84.46574) downstream 
to its confluence with Indian Creek (36.78652, -84.41622).
    (ii) Unit 5 includes 4.0 km (2.5 mi) of Indian Creek from its 
confluence with an unnamed tributary (36.79511, -84.45084) downstream 
to its confluence with Barren Fork (36.78652, -84.41622).
    (iii) Unit 6 includes 8.6 km (5.4 mi) of Cogur Fork from its 
confluence with an unnamed tributary (36.81645, -84.46389) downstream 
to its confluence with Indian Creek (36.79965, -84.39775).
    (iv) Unit 7 includes 4.6 km (2.9 mi) of Kilburn Fork from its 
confluence with an unnamed tributary (36.82518, -84.41411) downstream 
to its confluence with Laurel Fork (36.81527, -84.38298).
    (v) Unit 8 includes 3.5 km (2.2 mi) of Laurel Fork from its 
confluence with Toms Fork (36.83115, -84.38582) downstream to its 
confluence with Indian Creek (36.80482, -84.37966).
    (vi) Note: Map of Units 4 (Barren Fork), 5 (Indian Creek), 6 (Cogur 
Fork), 7 (Kilburn Fork), and 8 (Laurel Fork) of critical habitat for 
the Cumberland darter follows:

[[Page 63404]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.008

    (9) Units 9, 10, and 11: Laurel Creek, Elisha Branch, and Jenneys 
Branch, McCreary County, Kentucky.
    (i) Unit 9 includes 9.4 km (5.9 mi) of Laurel Creek from Laurel 
Creek Reservoir (36.69028, -84.44313) downstream to its confluence with 
Jenneys Branch (36.73485, -84.39951).
    (ii) Unit 10 includes 2.1 km (1.3 mi) of Elisha Branch from its 
confluence with an unnamed tributary (36.70132, -84.40843) downstream 
to its confluence with Laurel Creek.
    (iii) Unit 11 includes 3.1 km (1.9 mi) of Jenneys Branch from its 
confluence with an unnamed tributary (36.73701, -84.43159) downstream 
to its confluence with Laurel Creek.
    (iv) Note: Map of Units 9 (Laurel Creek), 10 (Elisha Branch), and 
11 (Jenneys Branch) of critical habitat for the Cumberland darter 
follows:

[[Page 63405]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.009

    (10) Unit 12: Wolf Creek, Whitley County, Kentucky.
    (i) Unit 12 includes 6.3 km (3.9 mi) of Wolf Creek from its 
confluence with Sheep Creek downstream to its intersection with Wolf 
Creek River Road.
    (ii) Note: Map of Unit 12 (Wolf Creek) of critical habitat for the 
Cumberland darter follows:

[[Page 63406]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.010

    (11) Units 13, 14, and 15: Jellico Creek, Rock Creek, and Capuchin 
Creek, McCreary and Whitley Counties, Kentucky, and Campbell and Scott 
Counties, Tennessee.
    (i) Unit 13 includes 11.5 km (7.2 mi) of Jellico Creek from its 
confluence with Scott Branch, Scott County, Tennessee, downstream to 
its confluence with Capuchin Creek, McCreary County, Kentucky.
    (ii) Unit 14 includes 6.1 km (3.8 mi) of Rock Creek from its 
confluence with Sid Anderson Branch downstream to its confluence with 
Jellico Creek.
    (iii) Unit 15 includes 4.2 km (2.6 mi) of Capuchin Creek from its 
confluence with Hatfield Creek downstream to its confluence with 
Jellico Creek.
    (iv) Note: Map of Units 13 (Jellico Creek), 14 (Rock Creek), and 15 
(Capuchin Creek) of critical habitat for the Cumberland darter follows:

[[Page 63407]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.011

* * * * *
Rush Darter (Etheostoma phytophilum)
    (1) The critical habitat units are depicted for Jefferson, Winston, 
and Etowah Counties in Alabama, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
rush darter consist of five components:
    (i) Springs and spring-fed reaches of geomorphically stable, 
relatively low-gradient, headwater streams with appropriate habitat 
(bottom substrates) to maintain essential riffles, runs, and pools; 
emergent vegetation in shallow water and on the margins of small 
streams and spring runs; cool, clean, flowing water; and connectivity 
between spawning, foraging, and resting sites to promote gene flow 
throughout the species' range.
    (ii) Stable bottom substrates consisting of a combination of sand 
with silt, muck, gravel, or bedrock and adequate emergent vegetation in 
shallow water on the margins of small permanent and ephemeral streams 
and spring runs.
    (iii) Instream flow with moderate velocity and a continuous daily 
discharge that allows for a longitudinal connectivity regime inclusive 
of both surface runoff and groundwater sources (springs and seepages) 
and exclusive of flushing flows caused by stormwater runoff.
    (iv) Water quality with temperature not exceeding 26.7 [deg]C (80 
[deg]F), dissolved oxygen 6.0 milligrams or greater per liter, 
turbidity of an average monthly reading of 10 Nephelometric Turbidity 
Units (NTU; units used to measure sediment discharge) and 15mg/L Total 
Suspended Solids (TSS; measured as mg/L of sediment in water) or less; 
and a specific conductance (ability of water to conduct an electric 
current, based on dissolved solids in the water) of no greater than 225 
micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
    (v) Prey base of aquatic macroinvertebrates, including midge 
larvae, mayfly nymphs, blackfly larvae, beetles, and microcrustaceans.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) Zone 16N, NAD1983, coordinates. Upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees and projected in WGS 1984.
    (5) Note: Overview of Critical Habitat Locations for the Rush 
Darter in Alabama follows:

[[Page 63408]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.012

    (6) Units 1, 2, and 3: Beaver Creek, Unnamed Tributary to Beaver 
Creek and Highway 79 Spring Site, and Tapawingo or Penny Spring and 
Spring Run, Jefferson County, Alabama.
    (i) Unit 1 includes 1.0 km (0.62 mi) of Beaver Creek from the 
confluence with an unnamed tributary to Beaver Creek, downstream to the 
confluence with Turkey Creek.
    (ii) Unit 2 includes 4.3 km (2.57 mi) of an unnamed tributary of 
Beaver Creek and a spring run. The site begins at the section 1 and 2 
(T16S, R2W) line, as taken from the U.S. Geological Survey 7.5 
topographical map (Pinson quadrangle), downstream to its confluence 
with Dry Creek, and includes a spring run beginning at the springhead 
(latitude 33[deg]40'28.15'' N, longitude 86[deg]41'34.81'' W) just 
northwest of Old Pinson Road and intersecting with an unnamed tributary 
to Beaver Creek on the west side of Highway 79.
    (iii) Unit 3 includes 0.63 km (0.39 mi) of spring run, historically 
called Tapawingo Plunge, along with 16.5 acres (6.68 ha) of flooded 
spring basin making up Penny Springs, located south of Turkey Creek, 
north of Bud Holmes Road, east of Tapawingo Trail Road. The east 
boundary is at latitude 33[deg]41'56.50'' N and longitude 
86[deg]39'55.01'' W: 1.0 km (0.63 mi) west of section line 28 and 29 
(T15S, R1W) (U.S. Geological Survey 7.5 topographical map (Pinson 
quadrangle)).
    (iv) Note: Map of Units 1 (Beaver Creek), 2 (unnamed tributary to 
Beaver Creek and Highway 79 Spring Site), and 3 (Tapawingo or Penny 
Spring and Spring Run) of critical habitat for the rush darter follows:

[[Page 63409]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.013

    (7) Units 4, 5, and 6: Wildcat Branch, Mill Creek, and Doe Branch, 
Winston County, Alabama.
    (i) Unit 4 includes 6.63 km (4.12 mi) of Wildcat Branch from the 
streams headwaters just east of Winston County Road 29 to the 
confluence with Clear Creek.
    (ii) Unit 5 includes 5.89 km (3.66 mi) of Mill Creek from the 
streams headwaters just east of Winston County Road 195 to the 
confluence with Clear Creek.
    (iii) Unit 6 includes 4.28 km (2.66 mi) of Doe Branch from the 
streams headwaters north and west of section line 23 and 14 (R9W, T11S; 
Popular Springs Quadrangle) to the confluence with Wildcat Branch.
    (iv) Note: Map of Units 4 (Wildcat Branch), 5 (Mill Creek), and 6 
(Doe Branch) of critical habitat for the rush darter follows:

[[Page 63410]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.014

    (8) Units 7 and 8: Little Cove Creek, Cove Spring and Spring Run, 
County, Alabama; and Bristow Creek, Etowah County, Alabama.
    (i) Unit 7 includes 11.22 km (6.13 mi) of Little Cove Creek and the 
Cove Spring run system along with 12.7 acres (5.1 ha) of the spring run 
floodplain. Specifically, the Little Cove Creek section (11.01 km (6.00 
mi)) is from the intersection of Etowah County Road 179 near the creek 
headwaters, downstream to its confluence with the Locust Fork River. 
The Cove Spring and spring run section includes 0.21 km (0.13 mi) of 
the spring run from the springhead at the West Etowah Water and Fire 
Authority pumping station on Cove Spring Road to the confluence with 
Little Cove Creek and includes 12.7 acres (5.1 ha) of the spring run 
floodplain due south of the pumping facility.
    (ii) Unit 8 includes 10.12 km (6.29 mi) of Bristow Creek beginning 
from the bridge at Fairview Cove Road, downstream to the confluence 
with the Locust Fork River.
    (iii) Map of Units 7 (Little Cove Creek, Cove Spring Site) and 8 
(Bristow Creek) of critical habitat for the rush darter follows:

[[Page 63411]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.015

* * * * *
Yellowcheek darter (Etheostoma moorei)
    (1) Critical habitat units are depicted for Cleburne, Searcy, 
Stone, and Van Buren Counties, Arkansas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
yellowcheek darter consist of five components:
    (i) Geomorphically stable second- to fifth-order streams with 
riffle habitats; and connectivity between spawning, foraging, and 
resting sites to promote gene flow within the species' range where 
possible.
    (ii) Stable bottom composed of relatively silt-free, moderate to 
strong velocity riffles with gravel, cobble, and boulder substrates.
    (iii) An instream flow regime (magnitude, frequency, duration, and 
seasonality of discharge over time) sufficient to provide permanent 
surface flows, as measured during years with average rainfall, and 
maintain benthic habitats utilized by the species.
    (iv) Adequate water quality characterized by moderate stream 
temperatures, acceptable dissolved oxygen concentrations, moderate pH, 
and low levels of pollutants. Adequate water quality is defined for the 
purpose of this rule as the quality necessary for normal behavior, 
growth, and viability of all life stages of the yellowcheek darter.
    (v) Prey base of aquatic macroinvertebrates, including blackfly 
larvae, stonefly larvae, mayfly nymphs, and caddisfly larvae.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat unit maps. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) Zone 15N, NAD1983, coordinates. Upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees and projected in WGS 1984.
    (5) Note: Overview of Critical Habitat Locations for Yellowcheek 
Darter in Arkansas follows:

[[Page 63412]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.016

    (6) Unit 1: Middle Fork Little Red River; Searcy, Stone and Van 
Buren Counties, Arkansas.
    (i) Unit 1 includes 70.2 km (43.6 mi) of the Middle Fork of the 
Little Red River from Searcy County Road 167 approximately 3.4 km (2.1 
miles) southwest of Leslie, Arkansas, to a point on the stream 7.7 
river km (4.8 mi) downstream (35.665146, -92.259415) of the Arkansas 
Highway 9 crossing of the Middle Fork near Shirley, Arkansas
    (ii) Note: Map of Unit 1 (Middle Fork) of critical habitat for the 
yellowcheek darter follows:

[[Page 63413]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.017

    (7) Unit 2: South Fork Little Red River; Van Buren County, 
Arkansas.
    (i) Unit 2 includes 31.9 km (19.8 mi) of the South Fork of the 
Little Red River from Van Buren County Road 9 three miles north of 
Scotland, Arkansas, to a point on the stream (35.573636, -92.427176) 
approximately 5.5 river km (3.4 mi) downstream of U.S. Highway 65 in 
Clinton, Arkansas, where it becomes inundated by Greers Ferry Lake.
    (ii) Note: Map of Unit 2 (South Fork) of critical habitat for the 
yellowcheek darter follows:

[[Page 63414]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.018

    (8) Unit 3: Archey Fork Little Red River; Van Buren County, 
Arkansas.
    (i) Unit 3 includes 27.4 km (17.0 mi) of the Archey Fork of the 
Little Red River from its confluence with South Castleberry Creek to 
its confluence with the South Fork of the Little Red River near 
Clinton, Arkansas.
    (ii) Note: Map of Unit 3 (Archey Fork) of critical habitat for the 
yellowcheek darter follows:

[[Page 63415]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.019

    (9) Unit 4: Devil's Fork Little Red River (including Turkey Creek 
and Beech Fork); Cleburne and Stone Counties, Arkansas.
    (i) Unit 4 includes 27.5 km (17.1 mi) of stream from Stone County 
Road 21 approximately three miles north of Prim, Arkansas, to a point 
on the Devil's Fork approximately 5.1 km (3.2 mi) southeast of Woodrow, 
Arkansas, at the point of inundation by Greers Ferry Lake (35.635557, -
92.034003).
    (ii) Note: Map of Unit 4 (Devil's Fork) of critical habitat for the 
yellowcheek darter follows:

[[Page 63416]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.020

* * * * *
Chucky Madtom (Noturus crypticus)
    (1) Critical habitat units are depicted for Greene County, 
Tennessee, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
chucky madtom consist of five components:
    (i) Gently flowing run and pool reaches of geomorphically stable 
streams with cool, clean, flowing water; shallow depths; and 
connectivity between spawning, foraging, and resting sites to promote 
gene flow throughout the species' range.
    (ii) Stable bottom substrates composed of relatively silt-free, 
flat gravel, cobble, and slab-rock boulders.
    (iii) An instream flow regime (magnitude, frequency, duration, and 
seasonality of discharge over time) sufficient to provide permanent 
surface flows, as measured during years with average rainfall, and 
maintain benthic habitats utilized by the species.
    (iv) Adequate water quality characterized by moderate stream 
temperatures, acceptable dissolved oxygen concentrations, moderate pH, 
and low levels of pollutants. Adequate water quality is defined for the 
purpose of this rule as the quality necessary for normal behavior, 
growth, and viability of all life stages of the chucky madtom.
    (v) Prey base of aquatic macroinvertebrates, including midge 
larvae, mayfly nymphs, caddisfly larvae, and stonefly larvae.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat unit maps. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Tennessee State Plane, 
Lambert Conformal Conic Projection, units feet. Upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees and projected in WGS 1984.
    (5) Note: Overview of Critical Habitat Locations for the Chucky 
Madtom in Tennessee follows:

[[Page 63417]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.021

    (6) Little Chucky Creek Unit, Greene County, Tennessee.
    (i) Little Chucky Creek Unit includes 31.9 km (19.8 mi) of Little 
Chucky Creek from its confluence with an unnamed tributary (36.15810, -
82.88996), downstream to its confluence with the Nolichucky River 
(36.12095, -83.10665), at the Greene and Cocke County line, Tennessee.
    (ii) Note: Map of Little Chucky Creek Unit of critical habitat for 
the chucky madtom follows:

[[Page 63418]]

[GRAPHIC] [TIFF OMITTED] TP12OC11.022

* * * * *

     Dated: September 23, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-25655 Filed 10-11-11; 8:45 am]
BILLING CODE 4310-55-P