[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Proposed Rules]
[Pages 43906-43939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17950]



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Vol. 77

Thursday,

No. 144

July 26, 2012

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; Endangered Status for 
the Diamond Darter and Designation of Critical Habitat; Proposed Rule

  Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R5-ES-2012-0045; 4500030113]
RIN 1018-AY12


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the 
diamond darter (Crystallaria cincotta) as endangered under the 
Endangered Species Act of 1973, as amended (Act); and propose to 
designate critical habitat for the species. In total, approximately 
197.1 river kilometers (122.5 river miles) are being proposed for 
designation as critical habitat. The proposed critical habitat is 
located in Kanawha and Clay Counties, West Virginia, and Edmonson, 
Hart, and Green Counties, Kentucky.

DATES: We will consider comments received or postmarked on or before 
September 24, 2012. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in the ADDRESSES 
section by September 10, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R5-ES-
2012-0045, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Send a Comment or Submission.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R5-ES-2012-0045; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. 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).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at (http://www.fws.gov/westvirginiafieldoffice/index.html), www.regulations.gov at Docket No. 
FWS-R5-ES-2012-0045, and at the West Virginia Field Office (see FOR 
FURTHER INFROMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the above locations.

FOR FURTHER INFORMATION CONTACT: Deborah Carter, Field Supervisor, U.S. 
Fish and Wildlife Service, West Virginia Field Office, 694 Beverly 
Pike, Elkins, WV 26241, by telephone (304) 636-6586 or by facsimile 
(304) 636-7824. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), a species may warrant protection through listing if it is 
endangered throughout all or a significant portion of its range. We are 
proposing to list the diamond darter as endangered under the Act 
because of continued threats, and listing can only be done by issuing a 
rule. The diamond darter occurs as a single population in the Elk River 
in West Virginia. We are also proposing to designate critical habitat 
under the Act for the species. Critical habitat represents geographical 
areas that are essential to a species' conservation, and is designated 
on the basis of the best scientific information available after taking 
into consideration the economic impact, impact on national security, 
and any other relevant impact of specifying any particular area as 
critical habitat. A forthcoming draft economic analysis will evaluate 
the potential economic impacts that may be attributable to the proposed 
designation of critical habitat for the species.
    The basis for our action. Under the Act, a species may be 
determined to be endangered or threatened based on any of five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulations; or (5) other 
natural or manmade factors affecting its continued existence. The Act 
also requires that we designate critical habitat concurrently with 
listing determinations, if designation is prudent and determinable.
    We have made the following finding related to these criteria:
     Diamond darter is endangered by water quality degradation; 
habitat loss; inadequate existing regulatory mechanisms; a small 
population size that makes the species vulnerable to the effects of the 
spread of an invasive alga (Didymosphenia geminate); loss of genetic 
fitness; and catastrophic events, such as oil and other toxic spills.
    This rule proposes to designate critical habitat for the diamond 
darter.
     Critical habitat designation would not be expected to 
increase threats to the species, and we have sufficient scientific 
information on the diamond darter to determine the areas essential to, 
and essential for, its conservation. Accordingly, we have determined 
the designation of critical habitat is both prudent and determinable.
     In total, we propose to designate approximately 197.1 
river kilometers (122.5 miles) as critical habitat. The proposed 
critical habitat is located in Kanawha and Clay Counties, West 
Virginia, and Edmonson, Hart, and Green Counties, Kentucky.
     Based on our interpretation of directly regulated entities 
under the Regulatory Flexibility Act and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies, which are not by definition small business entities. However, 
though not necessarily required by the Regulatory Flexibility Act, in 
our draft economic analysis for this proposal, we will consider and 
evaluate the potential effects to third parties that may be involved 
with consultations with Federal action agencies related to this action.
    Peer Review. We will seek the expert opinions of at least three 
appropriate and independent specialists with scientific expertise to 
ensure our determinations are based on scientifically sound data, 
assumptions, and analyses.

Information Requested

    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 as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this

[[Page 43907]]

proposed rule. We particularly seek comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (3) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act, which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (4) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (5) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    (6) 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 the 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.
    (7) Specific information on:
    (a) The amount and distribution of diamond darter 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 the 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 the species and why.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Information on the projected and reasonably likely impacts of 
climate change on the diamond darter and proposed critical habitat.
    (10) 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.
    (11) 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.
    (12) 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.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made solely on the basis of the best scientific and 
commercial data available, and section 4(b)(2) directs that critical 
habitat designations be made based on the best scientific data 
available and after consideration of economic, national security, and 
other relevant impacts.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    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, West Virginia Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    The diamond darter was first identified as a candidate for 
protection under the Act in the November 9, 2009, Federal Register (74 
FR 57804). As a candidate, it was assigned a listing priority number 
(LPN) of 2. Candidate species are assigned LPNs based on the magnitude 
and immediacy of threats, as well as their taxonomic status. The lower 
the LPN, the higher priority that species is for us to determine 
appropriate action using our available resources. An LPN of 2 reflects 
threats that are both imminent and high in magnitude, as well as the 
taxonomic classification of the diamond darter as a full species. We 
retained the LPN of 2 in our subsequent Notices of Review dated 
November 10, 2010 (75 FR 69222) and October 26, 2011 (76 FR 66370).

Status Assessment for Diamond Darter

Background

    It is our intent to discuss below only those topics directly 
relevant to the proposed listing of the diamond darter as endangered in 
this section of the proposed rule. A summary of topics relevant to this 
proposed rule is provided below. Additional information on this species 
may be found in the Candidate Notice of Review, which was published 
October 26, 2011 (76 FR 66370).

Species Description

    The diamond darter (Crystallaria cincotta) is a member of the perch 
family (Percidae), a group characterized by the presence of a dorsal 
(top) fin separated into two parts, one spiny and the other soft 
(Kuehne and Barbour 1983, p. 1). The darters differ from other percids 
in being much smaller in overall size and having a more slender shape. 
Some darters, including those in the genus Crystallaria, lack a swim 
bladder. This characteristic increases the density of the fish and 
facilitates their ability to remain near the bottom of their riverine 
habitats with little effort (Evans and Page 2003, p. 64).
    The diamond darter is overall translucent and is a silvery white on 
the under side of the body and head and has four wide, olive-brown 
saddles on the back and upper side (Welsh et al. 2008, p. 1). Between 
the saddles, olive-brown colored pigments on the scale margins produce 
a fragmented cross-hatch pattern. A blotch under and in front of the 
eyes is dark and distinctly separated

[[Page 43908]]

from the front margin of the orbital rim around the eye. The side 
coloration includes 12 to 14 oblong, olive-brown blotches overlain by 
an iridescent, olive-green stripe. Fins are clear with the exception of 
sparse pigmentation on the tail fin.
    Documented standard lengths measured from the tip of the snout to 
the beginning of the tail fin range from 73 to 77.3 millimeters (mm) 
(2.9 to 3.0 inches [in]) (Welsh and Wood 2008, pp. 64-66).
    Characteristics that distinguish the diamond darter from the 
related crystal darter (C. asprella) that occurs in freshwater rivers 
in the Gulf Coast States of Alabama, Florida, Louisiana, and 
Mississippi, and in the Mississippi and Wabash rivers, include: the 
width of the mouth when opened is larger and is approximately equal to 
or exceeding the width between the pelvic fins; a blotch under and in 
front of the eyes that is distinctly separate from the front of the 
orbital rim; a pair of fins located on the underside of the fish near 
the pelvis girdle (pelvic fins) that are distinctly curved like a 
sickle in both sexes; a reduced number of cheek scale rows (most 
frequently 2); a reduced number of scale rows (most frequently 2) on 
the opercle, which is a bone near the gills; a high count of mid-
lateral blotches (most frequently 13); a low count of rays (most 
frequently 13) on the anal fin (a single fin located on the underside 
of the fish behind the anus); a low count of dorsal-fin spines (most 
frequently 12), and a high count of scales (most frequently 11) below 
the lateral line, which is a sense organ fish use to detect movement 
and vibration in the surrounding water (Welsh and Wood 2008, p. 66).

Taxonomy

    Previously, Crystallaria was regarded as a subgenus within 
Ammocrypta (Cincotta and Hoeft, 1987, p. 133; Simons 1991, p. 934). 
However, in an evaluation of the species' evolutionary development 
based on morphology, Simons (1991) elevated Crystallaria to a separate 
genus. This taxonomic treatment has been adopted in other subsequent 
works (Page and Burr 1991, Simons 1992, and Wiley 1992 in NatureServe 
2008, p. 1). Allozyme data (variant forms of enzymes that are coded by 
different forms of a gene at the same gene locus) also seem consistent 
with this taxonomy (Wood and Mayden 1997, pp. 267-268).
    When the diamond darter was first collected from the Elk River, 
West Virginia, in 1980, the specimen was identified and reported as the 
crystal darter (Crystallaria ne: Ammocrypta asprella) (Cincotta and 
Hoeft 1987, pp. 133-136). This was the first collection of this species 
from the Ohio River Basin in 41 years and the first time it was ever 
collected in West Virginia (Cincotta and Hoeft 1987, p. 133). Although 
the diagnostic characteristics of the specimen were within those 
described for the crystal darter by Page (1983), even at the time of 
collection some researchers believed that the species, as then 
recognized, actually constituted more than one subspecies or species 
(Cincotta and Hoeft 1987, p. 134), particularly given the disjunct 
nature of existing crystal darter populations.
    In order to explore this possibility, Wood and Raley (2000) 
evaluated the genetic variation of five crystal darter populations by 
sequencing a specific gene referred to as the cytochrome b gene. 
Individuals were evaluated from populations in the Pearl River in 
Louisiana, the Cahaba River in Alabama, the Saline River in Arkansas, 
the Zumbro River in Minnesota, and the Elk River in West Virginia. This 
analysis was conducted on these crystal darter specimens, as well as 
individuals from eight other darter species (Wood and Raley 2000, p. 
20). This study found that there was an 11.2 to 11.8 percent difference 
between the cytochrome b sequence of the Elk River crystal darter 
population and all other crystal darter populations evaluated (Wood and 
Raley 2000, p. 24). This was one of the highest differences in 
cytochrome b ever reported for a fish species (Wood and Raley 2000, p. 
24), and was more typical of differences between species or genera 
rather than subspecies (Wood and Raley 2000, p. 24).
    Because differentiation observed at a single gene region is 
generally not considered sufficient evidence to establish taxonomic 
status, additional genetic and physical analyses were initiated by 
Morrison et al. (2006, p. 129). In that study, the authors sampled 
individuals from the same five disjunct crystal darter populations 
previously surveyed and compared genetic variation between these 
populations using additional genetic markers referred to as the 
mitochondrial control region (mtDNA CR) and nuclear S7 ribosomal gene 
(Morrison et al. 2006, p. 129). In addition, morphometric (a technique 
of taxonomic analysis using measurements of the form of organisms) 
measurements and meristic (divided into segments) counts between 
individuals from these populations were compared (Morrison et al. 2006, 
p. 130). Meristics are systematic counts of fish characteristics such 
as the number of scales along the lateral line or the number of rays in 
the anal fin. The results of this study confirmed the conclusions of 
Wood and Raley (2000, pp. 20-26) in regard to the Elk River population. 
The magnitude of divergence between the Elk River population and the 
other populations sampled, as estimated from mtDNA CR data, was similar 
in magnitude to mtDNA divergences measured between recognized species 
of darters and was an order of magnitude greater than some mtDNA CR 
divergence estimates for recognized subspecies (Morrison et al. 2006, 
p. 139). Morphometric data were also consistent with molecular data 
regarding the distinctiveness of the Elk River population (Morrison et 
al. 2006, p. 129). The study concluded that the Elk River group likely 
constituted a distinct species (Morrison et al. 2006, p. 143).
    Welsh and Wood (2008) conducted additional morphological 
comparisons between Crystallaria populations from 18 rivers within the 
Ohio River Drainage; the upper, middle, and lower Mississippi River 
drainages; and the Gulf Coast (Welsh and Wood 2008, p. 63). This 
evaluation included specimens from extant populations, as well as 
museum specimens from currently extirpated populations that were 
gathered during the late 1800s to early 1900s. Nine specific 
morphological characteristics were identified that distinguish the Elk 
River population from other populations of the crystal darter (see 
Species Description section). Based on the results of this analysis, 
and the previous genetic studies, Welsh and Wood (2008, pp. 62-68) 
formally named and described the Elk River population of the crystal 
darter as a separate and distinct species, the diamond darter 
(Crystallaria cincotta) (Welsh and Wood 2008, pp. 62-68). Welsh and 
Wood (2008, pp. 62-68) further identified that specimens from 
extirpated populations within the Cumberland, Green, and Muskingum 
Rivers within the Ohio River Basin were consistent with the 
characteristics defined for the diamond darter, thus establishing the 
extent of the species' historical range. The crystal darter's current 
range, as described above, does not appear to overlap with the diamond 
darter's current or historical range (Grandmaison et al. 2003, p. 6; 
Welsh and Wood 2008, pp. 62-68).
    We carefully reviewed the available taxonomic information 
summarized above and conclude that the species is a valid taxon based 
upon considerations of genetic and morphological characteristics.

[[Page 43909]]

Life History and Habitat

    Due to its rarity, little research exists on the natural history of 
this species (Osier 2005, p. 10). However, in some cases, potential 
characteristics can be inferred from the information available on the 
closely related crystal darter, as noted below.
    The diamond darter is a species that inhabits medium to large, 
warmwater streams with moderate current and clean sand and gravel 
substrates (Simon and Wallus 2006, p. 52). In the Elk River, the 
diamond darter has been collected from riffles and pools where swift 
currents result in clean swept, predominately sand and gravel 
substrates that lack silty depositions (Osier 2005, p. 11).
    Diamond darters are more often collected at dusk or during the 
night and are likely crepuscular (more active at dusk and dawn) (Welsh 
2008, p. 10). They may stay partially buried in the sand during the day 
and then come out to feed during the night (Welsh 2009c, p. 1). Adult 
diamond darters are benthic invertivores, feeding primarily on stream 
bottom-dwelling invertebrates (NatureServe 2008, p. 8). They may use an 
ambush foraging tactic by burying in the sand and darting out at prey 
(Robinson 1992 and Hatch 1997 in Osier 2005, pp. 12-13; NatureServe 
2008, p. 1). The large teeth seen in juvenile diamond darters hatched 
in captivity suggest that young diamond darters may feed on other 
smaller fish larvae (Ruble et al. 2010, p. 15). However, because no 
juveniles have been successfully reared to adulthood, this has not been 
confirmed. The juveniles may also eat zooplankton prey, which is a more 
typical behavior for pelagic (drifting in open water) larval percids 
(Rakes 2011, p. 1).
    Very little information is available on the reproductive biology 
and early life history of the diamond darter (Welsh et al. 2008, p. 1; 
Ruble and Welsh 2010, p. 1). When maintained in captivity, females 
began to show signs of being gravid from late March to May. Spawning 
likely occurs mid-April to May, and larvae hatch within 7 to 9 days 
afterward (Ruble et al. 2010, pp. 11-12). Males appear to guard 
spawning territories, but no guarding of eggs has been observed in 
captivity (Ruble 2012, p. 1)
    If the diamond darter's reproductive behavior is similar to crystal 
darters in the wild, then females may be capable of multiple spawning 
events and producing multiple clutches of eggs in one season (George et 
al. 1996, p. 75). Crystal darters lay their eggs in side channel riffle 
habitats over sand and gravel substrates in moderate current. Adult 
crystal darters do not guard their eggs (Simon and Wallus 2006, p. 56). 
Embryos develop in the clean interstitial spaces of the coarse 
substrate (Simon and Wallus 2006, p. 56). After hatching, the larvae 
are pelagic and drift within the water column (Osier 2005, p. 12; Simon 
and Wallus 2006, p. 56; NatureServe 2008, p. 1). See the discussion 
under Critical Habitat Designation--Physical and Biological Features 
below under ``Sites for Breeding, Reproduction, or Rearing (or 
Development) of Offspring'' for additional information.
    Life expectancy of diamond darters is unknown in the wild. Diamond 
darters have been maintained in captivity for 2 years. During that 
time, it is suspected that one adult female died due to senescence (old 
age). Because she was brought into captivity as an adult (approximately 
2 years old) it is suspected that she was 4 years or older at death 
(Ruble 2011b, p. 1). Life expectancy for the crystal darter has been 
reported to range from 2 to 4 years (Osier 2005, pp. 10-11), although 
some authors have suggested the potential to live up to 7 years (Simon 
and Wallus 2006, p. 52). In Arkansas, sexual maturity for the crystal 
darter may occur during the first year, with the first spawning event 
occurring the season after hatching. However, in the Ohio River Basin 
this may not occur until age 3 (George et al. 1996, p. 75; Simon and 
Wallus 2006, p. 52). Reported differences in age and size at maturity 
between northern and southern populations of crystal darters have been 
attributed to environmental differences, such as flow regimes, 
photoperiod, and temperature, with southern populations maturing and 
reproducing at an earlier age and thus having shorter lifespans (George 
et al. 1996, pp. 75-76).

Species Distribution and Status

Historical Range/Distribution
    As shown in Table 1 below, historical records of the species 
indicate that the diamond darter was distributed throughout the Ohio 
River Basin and that the range included the Muskingum River in Ohio; 
the Ohio River in Ohio, Kentucky and Indiana; the Green River in 
Kentucky; and the Cumberland River Drainage in Kentucky and Tennessee. 
There is some difference of opinion as to how common the species was 
during the early portions of the 1900s. Trautman (1981, p. 645) 
suggests that it is quite probable that before 1900 the species was 
well distributed in the lower reaches of the southern Ohio tributaries 
and the Ohio River. However in 1892, Woolman (in Cicerello 2003, p. 6) 
noted that the species was likely neither widely distributed, nor 
common anywhere in Kentucky.

[[Page 43910]]

[GRAPHIC] [TIFF OMITTED] TP26JY12.045

Current Range/Distribution
    The species is currently known to exist only within the lower Elk 
River in Kanawha and Clay Counties, West Virginia, and is considered 
extirpated from the remainder of the Ohio River Basin (Cicerello 2003, 
p. 3; Welsh and Wood 2008, pp. 62, 68). The species was first collected 
from the Elk River in November 1980, when one individual was collected 
during boat electroshocking surveys conducted near Mink Shoals in 
Kanawha County (Cincotta and Hoeft 1987, p. 133). This collection 
marked the rediscovery of the species in the Ohio River Basin, where it 
formerly had been considered extirpated from all states in which it had 
previously been recorded (Cincotta and Hoeft 1987, pp. 133-134). The 
species has not been collected since 1899 in Ohio, 1929 in Kentucky, 
and 1939 in Tennessee (Grandmaison et al. 2003, p. 6).
    Trautman (1981, p. 645) suggests that increased silt load and 
subsequent smothering of suitable habitats likely caused the 
extirpation of the species from the State of Ohio by 1925 and that 
``the habitat of few other Ohio fishes seemed so vulnerable to 
annihilation'' (Trautman 1981, p. 646). In addition, researchers at the 
Ohio State University have conducted extensive sampling in the Ohio 
River and its tributaries, starting with Ed Wickliff in the 1920s and 
continuing through the present (Kibbey 2008, p. 1; Ohio State 
University 2008, p. 1). Despite semiannual survey efforts in likely 
diamond darter habitats, such as the riffles below Devola Dam on the 
Muskingum River, no additional diamond darters have been located

[[Page 43911]]

(Kibbey 2008, p. 1). The Midwest Biodiversity Institute has also 
conducted recent surveys in the Muskingum River using both trawls and 
electroshocking. These surveys also failed to locate any Crystallaria 
species (Kibbey 2008, p. 1). Furthermore, despite conducting over 
20,000 individual sampling events at over 10,000 locations throughout 
the State of Ohio, including sampling in both large rivers and small 
creeks, the Ohio Environmental Protection Agency has never collected 
any Crystallaria species (Mishne 2008, p. 1). As a result of these 
efforts, the species is considered extirpated from both the State of 
Ohio and the Ohio River (Mishne 2008, p. 1; Trautman 1981, p. 646). 
Pearson and Krumholtz (1984, p. 252) state that the chances of the 
diamond darter currently being present in the entire mainstem Ohio 
River are ``remote at best.''
    The species is also considered extirpated from Kentucky (Burr and 
Warren 1986, p. 285; Evans 2008b, p. 1). Kentucky has been fairly well 
surveyed by numerous researchers without resulting in any recent 
collections of the species (Evans 2008, p. 1). All historical Green 
River sites have been repeatedly but unsuccessfully sampled for the 
diamond darter (Cicerello 2003, p. 6). Both the Kentucky State Nature 
Preserves Commission (KSNPC) and Southern Illinois University have 
conducted surveys targeting the species throughout the upper portion of 
the Green River Basin (Cicerello 2003, p. 6). Most recently in 2007, 
the Kentucky Department of Fish and Wildlife Resources, the Missouri 
Department of Conservation, and KSNPC sampled below Lock and Dam 5 and 
6 on the Green River, as well as in river reaches downstream of the 
dams using a Hertzog trawl (Evans 2008a, p. 1). The Kentucky Department 
of Fish and Wildlife Resources has also done some site monitoring in 
the Green River at three sites below Green River dam and has not 
collected the species.
    The diamond darter has not been documented to occur in Tennessee 
since 1939, and all previous records of the species within the State 
were from the Cumberland River Drainage (Etnier and Starnes 1993, p. 
443). Starting in the 1950s, dams were installed on the mainstem 
Cumberland River that impounded much of its entire length from Barkley 
Dam in Kentucky to Cumberland Falls near the headwaters (Tennessee 
Wildlife Resources Agency (TWRA) 2005, p. 14). This dramatically 
altered most of the riverine habitat qualities that made the river 
suitable for the diamond darter and likely resulted in the extirpation 
of the species (Etnier and Starnes, 1993, p. 443; TWRA 2005, p. 14; 
Saylor, 2009, p. 1). Cold water discharges from many of these dams have 
changed the natural temperature regimes so that the river no longer 
functions as a warmwater fishery (TWRA 2005, p. 14; Fiss 2009, p. 1).
    In addition, when the Cumberland River impoundments were being 
constructed, a fish barrier was installed near the mouth of the Roaring 
River in order to keep species that might frequent the impoundments, 
such as carp, from moving into the Roaring River, thus impeding any 
connectivity between the two systems (Fiss 2009, p. 1). Surveys in the 
Roaring River between 1972 and 1986 noted a loss of silt-intolerant 
fish species and increased disturbance from activities such as gravel 
dredging, highway construction, and poor agricultural practices that 
were degrading habitat quality in the stream. Although these surveys 
included the reach of river where Crystallaria had previously been 
documented, no diamond darters were captured during this effort (Crumby 
et al. 1990, pp. 885-891).
    Surveys conducted in 1939 in the Big South Fork Cumberland River 
near where Crystallaria was previously documented noted that chemical 
conditions of the drainage were so adverse to biological productivity 
that the waters of the region are comparatively barren in contrast to 
surrounding regions (Shoup and Peyton 1940, p. 106). Comprehensive 
fisheries surveys were conducted in the Big South Fork Cumberland River 
from 2003 to 2006. Collection methods included backpack 
electroshocking, seines, dip nets, snorkeling, boat shocking, gill 
nets, and minnow traps (Scott 2007, p. 2). No Crystallaria were 
documented during this effort and the report concludes that the species 
is one of six that will likely never be encountered in the area due to 
extinction, extirpation, and being isolated from downstream populations 
by Wolf Creek Dam (Scott 2007, p. 21). Those surveys document that 
water quality within the Big South Fork Cumberland River has improved 
since the 1970's and that fish-diversity in the system is in the 
process of recovery (Scott 2007, pp. 14-19).
    Currently, the Cumberland River watershed is subject to threats to 
water quality from inadequate pasture and grazing management practices, 
forest clearing, heavy navigation and recreational use, active mining, 
historical mining and acid mine drainage issues, oil and gas drilling, 
lack of riparian buffers, and poor stormwater and wastewater management 
(TWRA 2005, pp. 135-136). Despite these threats, the Cumberland aquatic 
region still contains some of the most diverse populations of fish, 
mussel, and crayfish species in North America (TWRA 2005, p. 14), and 
some ichthyologists have suggested that there is a ``remote 
possibility'' that the diamond darter may still exist in the cleaner 
large tributaries of the Cumberland or the lower Tennessee rivers 
(Etnier and Starnes 1993, p. 444). Therefore, some targeted sampling 
may be warranted (Fiss 2009, p. 1). The TWRA has conducted 111 fish 
survey samples from 1996 to 2007 throughout the Cumberland River 
system, although the gear used during some of these surveys was not 
targeted towards capturing the diamond darter (Fiss 2009, p. 1),, and 
has no recent records of recent diamond darter captures (Kirk 2009, p. 
1). Despite extensive sampling in the Duck River, as well as the Blood 
and Big Sandy Rivers, there are no current or historical records of the 
diamond darter in those rivers either (Saylor 2009, p. 1).
Population Estimates/Status
    Although there is currently not sufficient information available to 
develop an overall population estimate for the species, the results of 
numerous survey efforts confirm that the species is extremely rare. 
Fish surveys have been conducted in the Elk River in 1936, 1971, 1973, 
1978 to 1983, 1986, 1991, 1993, 1995, 1996, and every year since 1999 
(Welsh et al. 2004, pp. 17-18; Welsh 2008, p. 2; Welsh 2009a, p. 1). 
Survey methods included backpack and boat electrofishing, underwater 
observation, kick seines, and bag seines (Welsh et al. 2004, p. 4). 
Starting in early 1990s, the timing of sampling and specific methods 
used were targeted towards those shown to be effective at capturing 
similar darter species during previous efforts (Welsh et al. 2004, pp. 
4-5; Hatch 1997, Shepard et al. 1999, and Katula 2000 in Welsh et al. 
2004, p. 9; Ruble 2011a, p. 1). Despite these extensive and targeted 
survey efforts within the species' known range and preferred habitat in 
the Elk River, fewer than 50 individuals have been collected over the 
last 30 years since the species was first collected in the Elk River 
(SEFC 2008 p. 10; Cincotta 2009a, p. 1; Cincotta 2009b, p. 1; Welsh 
2009b, p. 1, Ruble and Welsh 2010, p. 2). More than half of these 
collections (n = 26) have occurred in the last 5 years as a result of 
focused conservation efforts and sampling that targeted known or 
suspected diamond darter locations based on habitat mapping (Cincotta 
2009b, p. 1; Cincotta 2009c, p. 1; Ruble 2011a, pp. 1-2).

[[Page 43912]]

    Welsh et al. (2004, p. 8) concludes that the number of individuals 
in the Elk River is likely small given the low catch per unit effort 
totals recorded in both previous and recent surveys. Independent 
publications that have evaluated the status of the species further 
corroborate the rarity of the species. For example, the diamond darter 
was recently highlighted as a Threatened Fish of the World (Welsh et 
al. 2008, pp. 1-2) and was listed by the Southeastern Fishes Council as 
one of the 12 most imperiled fishes (i.e., the ``desperate dozen'') of 
the southeastern United States (SEFC 2008, pp. 2-3).

Summary of Factors Affecting the Species

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

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

    As indicated by the continued persistence of the diamond darter, 
the Elk River in West Virginia currently provides overall high-quality 
aquatic habitat. The Elk River is one of the most ecologically diverse 
rivers in the State (Green 1999, p. 2) supporting over 100 species of 
fish and 30 species of mussels, including 5 federally listed mussel 
species (Welsh 2009a, p. 1). The river, including those portions that 
are within the range of the diamond darter, is listed as a ``high 
quality stream'' by the West Virginia Division of Natural Resources 
(WVDNR 2001, pp. 1, 2, 5). Streams in this category are defined as 
having ``significant or irreplaceable fish, wildlife, and recreational 
resources'' (WVDNR 2001, p. iii). In an evaluation of the watershed, 
the West Virginia Department of Environmental Protection (WVDEP) noted 
that all four sampling sites within the mainstem of the Elk River 
scored well for benthic macroinvertebrates on the West Virginia Stream 
Condition Index, with results of 77 or higher out of a potential 100 
points (WVDEP 1997, p. 41).
    Criteria for placement on the high-quality streams list are based 
solely on the quality of fisheries populations and the utilization of 
those populations by the public and do not include water quality or 
threats to the watershed (WVDNR 2001, p. 36; Brown 2009, p. 1). Despite 
the high quality of the fishery populations, there are continuing and 
pervasive threats within the watershed. In fact, the WVDEP evaluation 
also noted that because larger rivers offer a wider variety of 
microhabitats, the high benthic macroinvertebrate scores may mask some 
degradation in water quality (WVDEP 1997, p. 41). Noted threats to the 
watershed include coal mining, oil and gas development, sedimentation 
and erosion, timber harvesting, water quality degradation, and poor 
wastewater treatment (WVDEP 1997, p. 15; Strager 2008, pp. 1-39; WVDEP 
2008b, pp. 1-2).
    Many sources have recognized that Crystallaria species appear to be 
particularly susceptible to habitat alterations and changes in water 
quality. Threats similar to those experienced in the Elk River 
watershed have likely contributed to the extirpation of Crystallaria 
within other watersheds (Clay 1975, p. 315; Trautman 1981, pp. 24-29, 
646; Grandmaison 2003, pp. 16-19). In addition, the current range of 
the diamond darter is restricted and isolated from other potential and 
historical habitats by impoundments.
Coal Mining
    Coal mining occurs throughout the entire Elk River watershed. Most 
of the active mining occurs in the half of the watershed south of the 
Elk River (see Unit 1 Map below), which flows east to west (Strager 
2008, p. 17). The most recent summarized data, as of January 2008, 
indicates more than 5,260 hectares (ha) (13,000 acres [ac]) of actively 
mined areas including 91 surface mine permits, 79 underground mine 
permits, 1,351 ha (3,339 ac) of valley fills, 582 km (362 mi) of haul 
roads, 385 km (239 mi) of mine drainage structures, 473 National 
Pollutant Discharge Elimination System (NPDES) discharge points 
associated with mines, and 3 mining related dams (Strager 2008, pp. 19-
21). There are also 615 ha (1,519 ac) of abandoned mine lands and 155 
mine permit sites that have forfeited their bonds and have not 
adequately remediated the sites (Strager 2008, p. 18). Approximately 47 
percent of the entire Elk River watershed is within the area that the 
U.S. Environmental Protection Agency has identified as potentially 
being subject to mountain top removal mining activities (Strager 2008, 
p. 17).
    Coal mining can contribute significant amounts of sediment to 
streams and degrade their water quality. Impacts to instream water 
quality (chemistry) occur through inputs of dissolved metals and other 
solids that elevate stream conductivity, increase sulfate levels, alter 
stream pH, or a combination of these (Curtis 1973, pp. 153-155; Pond 
2004, pp. 6-7, 38-41; Hartman et al. 2005, p. 95; Mattingly et al. 
2005, p. 59; Palmer et al. 2010, pp. 148-149). As rock strata and 
overburden (excess material) are exposed to the atmosphere, 
precipitation leaches metals and other solids (e.g., calcium, 
magnesium, sulfates, iron, and manganese) from these materials and 
carries them in solution to receiving streams (Pond 2004, p. 7). If 
valley fills are used as part of the mining activity, precipitation and 
groundwater percolate through the fill and dissolve minerals until they 
discharge at the toe of the fill as surface water (Pond et al. 2008, p. 
718). Both of these scenarios result in elevated conductivity, 
sulfates, and hardness (increased pH) in the receiving stream. 
Increased levels of these metals and other dissolved solids have been 
shown to exclude other sensitive fish species and darters from streams, 
including the federally threatened blackside dace (Chrosomus 
cumberlandensis) in the upper Cumberland River Basin (Mattingly et al. 
2005, pp. 59-62). The Kentucky arrow darter (Etheostoma sagitta 
spilotum) was found to be excluded from mined watersheds when 
conductivity exceeded 250 micro Siemens per cm ([mu]S/cm) (Thomas 2008, 
pp. 3-6; U.S. Fish and Wildlife Service (Service) 2009, pp. 1-4).
    Mining-associated water quality impacts have been noted in the Elk 
River. For example, in the Jacks Run watershed, a tributary to the Elk 
River, one third of the entire watershed had been subject to mining-
related land use changes that cleared previously existing vegetation. 
In a sampling site downstream of mining, the WVDEP documented embedded 
substrates with dark silt, most likely from manganese precipitate or 
coal fines, and benthic scores that indicated severe impairment (WVDEP 
1997, p. 60). Another Elk River tributary, Blue Creek, had low pH 
levels associated with contour mining and acid drainage and three 
sample sites had pH values of 4.2 or less (WVDEP 1997, p. 47; WVDEP 
2008b, p. 6). At pH levels of 5.0 or less, most fish eggs cannot hatch 
(USEPA 2009, p. 2).
    Sampling sites below a large mining reclamation site in the Buffalo 
Creek

[[Page 43913]]

drainage of the Elk River watershed had violations of the West Virginia 
water quality criteria for acute aluminum and manganese water quality 
criteria, poor habitat quality, and substrates that were heavily 
embedded with coal fines and clay (WVDEP 1997, pp. 4, 56-57). Other 
sites in the watershed, where topographic maps showed extensive surface 
mining, had pH readings of 4.7, elevated aluminum levels, and benthic 
communities that were dominated by acid-tolerant species (WVDEP 1997, 
pp. 4, 56-57).
    A U.S. Geological Survey (USGS) study of the Kanawha River Basin, 
which includes the Elk River, found that streams draining basins that 
have been mined since 1980 showed increased dissolved sulfate, 
decreased median bed-sediment particle size, and impaired benthic 
invertebrate communities when compared to streams not mined since 1980. 
Stream-bottom sedimentation in mined basins was also greater than in 
undisturbed basins (USGS 2000, p. 1). In streams that drained areas 
where large quantities of coal had been mined, the benthic invertebrate 
community was impaired in comparison to rural parts of the study area 
where little or no coal had been mined since 1980 (USGS 2000, p. 7). 
That report notes that benthic invertebrates are good indicators of 
overall stream water quality and that an impaired invertebrate 
community indicates that stream chemistry or physical habitat, or both, 
are impaired, causing a disruption in the aquatic food web (USGS 2000, 
p. 8).
    In another study that specifically evaluated fish data, the Index 
of Biotic Integrity (IBI) scores at sites downstream of valley fills 
were significantly reduced by an average of 10 points when compared to 
unmined sites, indicating that fish communities were degraded below 
mined areas (Fulk et al. 2003, p. iv). In addition, that study noted a 
significant correlation between the number of fishes that were benthic 
invertivores and the amount of mining in the study watershed: the 
number of those types of fish species decreased with increased mining 
(Fulk et al. 2003, pp. 41-44). As described above in the Life History 
section, the diamond darter is a benthic invertivore. The effects 
described above are often more pronounced in smaller watersheds that do 
not have the capacity to buffer or dilute degraded water quality (WVDEP 
1997, p. 42; Fulk et al. 2003, pp. ii-iv). Because the mainstem Elk 
River drains a relatively large watershed, these types of adverse 
effects are more likely to be noticed near the confluences of 
tributaries that are most severely altered by mining activities such as 
Blue Creek, which occurs within the known range of the diamond darter, 
and Buffalo Creek, which is upstream of the known diamond darter 
locations.
    In addition to chronic sediment releases and water quality effects 
from coal mine areas, the potential exists for failure of large-scale 
mine waste (coal slurry) impoundment structures contained by dams 
constructed of earth, mining refuse, and various other materials, which 
could release massive quantities of mine wastes that could cover the 
stream bottoms. There are currently two coal slurry impoundments within 
the Elk River watershed. These impoundments have a capacity of 
6,258,023 and 1,415,842 cubic meters (m\3\) (221,000,000 and 50,000,000 
cubic feet [cf]). The larger structure covers 19 ha (48 ac) and is 
considered a ``class C'' dam which could result in the loss of human 
life and serious damage to homes, and industrial and commercial 
facilities in the event of failure (Strager 2008, pp. 21-22). A third 
coal refuse disposal impoundment is permitted and planned for 
construction with an additional 54,821 m\3\ (1,936,000 cf) of capacity 
(Fala 2009, p. 1; WVDEP 2012, p. 1). These three impoundments are on 
tributaries of the Elk River upstream of the reach of river known to 
support the diamond darter. In October 2000, a coal slurry impoundment 
near Inez, Kentucky breached, releasing almost 991,090 m\3\ (35,000,000 
cf) of slurry into the Big Sandy Creek Watershed. ``The slurry left 
fish, turtles, snakes and other aquatic species smothered as the slurry 
covered the bottoms of the streams and rivers and extended out into the 
adjacent floodplain'' (USEPA 2001a, p. 2). Over 161 km (100 mi) of 
stream were impacted by the spill (USEPA 2001a, p. 2). If a similar dam 
failure were to occur in the Elk River watershed, it could have 
detrimental consequences for the diamond darter population.
    There is also a potential for abandoned underground mines to fill 
with water and ``blow out'' causing large discharges of sediment and 
contaminated water. Similar events have happened in nearby areas, 
including one in Kanawha County, West Virginia, in April 2009 that 
discharged ``hundreds of thousands of gallons of water'' onto a nearby 
highway, and caused a ``massive earth and rock slide'' (Marks 2009, p. 
1). A second situation occurred in March 2009 in Kentucky where water 
from the mine portal was discharged into a nearby creek at an estimated 
rate of 37,854 liters (l) (10,000 gallons [ga]) a minute (Associated 
Press 2009, p. 1). In addition to the increased levels of sediment and 
potential smothering of stream habitats, discharges from abandoned mine 
sites often have elevated levels of metals and low pH (Stoertz et al. 
2001, p. 1). In 2010, a fish kill occurred in Blue Creek, a tributary 
of the Elk River in Kanawha County, when a contractor working for WVDEP 
attempted to cleanup an abandoned mine site. When they breached an 
impoundment, the mine discharged highly acidic water that then flowed 
into the stream. Approximately 14.5 km (9 mi) of Blue Creek was 
affected by the fish kill (McCoy 2010, p. 1). The effects of the fish 
kill were stopped by response crews 9.5 km (5.9 mi) upstream from where 
Blue Creek enters the Elk River within the known range of the diamond 
darter.
Oil and Gas Development
    The Elk River watershed is also one of the more densely drilled 
areas of the State, with over 5,800 oil or gas wells in the watershed 
as of the most recent data in January 2011 (WVDEP 2011a, p. 1). The 
lower section of the Elk River, which currently contains the diamond 
darter, has the highest concentration of both active and total wells in 
the watershed, with over 2,320 active wells and 285 abandoned wells 
(WVDEP 2011a, p. 1).
    Although limited data are available to quantify potential impacts, 
development of oil and gas resources can increase sedimentation rates 
in the stream and degrade habitat and water quality in a manner similar 
to that described for coal mining. Oil and gas wells can specifically 
cause elevated chloride levels through discharge of brine and runoff 
from materials used at the site, and the erosion of roads associated 
with these wells can contribute large amounts of sediment to the 
streams (WVDEP 1997, p. 54). For example, WVDEP sampling sites within 
Summers Fork, a tributary to the Elk River with a ``high density of oil 
and gas wells,'' had elevated chloride and conductivity levels as well 
as impaired benthic invertebrate scores despite ``good benthic 
substrate'' (WVDEP 1997, p. 52). Within the Buffalo Creek watershed, 
another Elk River tributary, the impaired benthic invertebrate scores 
at sample sites were attributed to oil compressor stations next to the 
creek, pipes running along the bank parallel to the stream, and 
associated evidence of past stream channelization (WVDEP 1997, p. 55).
    High levels of siltation have been noted in the impaired sections 
of the Elk River (USEPA 2001b, pp. 3-6). Oil and gas access roads have 
been identified as a source that contributes ``high'' levels of 
sediment to the Elk River (USEPA

[[Page 43914]]

2001b, pp. 3-7). The WVDEP estimates the size of the average access 
road associated with an oil or gas well to be 396 meters (m) (1,300 
feet [ft]) long by 7.6 m (25 ft) wide or approximately .30 ha (0.75 ac) 
per well site (WVDEP 2008b, p. 10). If each of the wells in the 
watershed has this level of disturbance, there would be over 1,821 ha 
(4,500 ac) of access roads contributing to increased sedimentation and 
erosion in the basin. Lack of road maintenance, improper construction, 
and subsequent use by the timber industry and all-terrain vehicles can 
increase the amount of erosion associated with these roads (WVDEP 
2008b, pp. 5-6).
    Shale gas development is an emerging issue in the area. Although 
this is currently not the most productive area of the State, the entire 
current range of the diamond darter is underlain by the Marcellus and 
Utica Shale formation and potentially could be affected by well 
drilling and development (National Energy Technology Laboratory (NETL) 
2010 pp. 6-10). The pace of drilling for Marcellus Shale gas wells is 
expected to increase substantially in the future, growing to about 700 
additional wells per year in West Virginia starting in 2012 (NETL 2010, 
p. 27). This is consistent with what has been reported in the area 
around the Elk River. In March 2011, there were 15 Marcellus Shale gas 
wells reported within Kanawha County (West Virginia Geological and 
Economic Survey (WVGES) 2011, p. 1). As of January 2012, there were 188 
completed Marcellus Shale gas wells within Kanawha County and an 
additional 27 wells that had been permitted (WVGES 2012, p. 1). Data 
specific to the Elk River watershed are not available for previous 
years, but there are currently at least 100 completed and 21 additional 
permitted Marcellus Shale gas wells within the watershed (WVGES 2012, p 
1).
    Marcellus Shale gas wells require the use of different techniques 
than previously used for most gas well development in the area. When 
compared to more traditional methods, Marcellus Shale wells usually 
require more land disturbance, and more water and chemicals for 
operations. In addition to the size and length of any required access 
roads, between 0.8 and 2.0 ha (2 and 5 ac) are generally disturbed per 
well (Hazen and Sawyer 2009, p. 7). Each well also requires about 500 
to 800 truck trips to the site (Hazen and Sawyer 2009, p. 7). 
Construction of these wells in close proximity to the Elk River and its 
tributaries could increase the amount of siltation in the area due to 
erosion from the disturbed area, road usage, and construction.
    Shale gas wells typically employ a technique called hydrofracking 
which involves pumping a specially blended liquid mix of water and 
chemicals down a well, into a geologic formation. The pumping occurs 
under high pressure, causing the formation to crack open and form 
passages through which gas can flow into the well. During the drilling 
process, each well may utilize between 7 and 15 million liters (2 and 4 
million ga) of water (Higginbotham et al. 2010, p. 40). This water is 
typically withdrawn from streams and waterbodies in close proximity to 
the location where the well is drilled. Excessive water withdrawals can 
reduce the quality and quantity of habitat available to fish within the 
streams, increase water temperatures, reduce dissolved oxygen 
concentrations, and increase the concentration of any pollutants in the 
remaining waters (Freeman and Marcinek 2006, p. 445; PSU 2010, p. 9). 
Increasing water withdrawals has been shown to be associated with a 
loss of native fish species that are dependent on flowing-water 
habitats. Darters were one group of species that were noted to be 
particularly vulnerable to this threat (Freeman and Marcinek 2006, p. 
444).
    In addition to water withdrawals, there is a potential for spills 
and discharges from oil and gas wells, particularly Marcellus Shale 
drilling operations. Pipelines and ponds being used to handle brine and 
wastewaters from fracking operations can rupture, fail, or overflow and 
discharge into nearby streams and waterways. In Pennsylvania, 
accidental discharges of brine water from a well site have killed fish, 
invertebrates, and amphibians up to 0.4 mi (0.64 km) downstream of the 
discharge, even though the company immediately took measures to control 
and respond to the spill (PADEP 2009, pp. 4-22). In 2011, the WVDEP 
cited a company for a spill at a well site in Elkview, West Virginia. 
Up to 50 barrels of oil leaked from a faulty line on the oil well site. 
The spill entered a tributary of Indian Creek, traveled into Indian 
Creek and then flowed into the Elk River (Charleston Gazette 2011, p. 
1). This spill occurred within the reach of the Elk River known to be 
occupied by the diamond darter, and therefore could have affected the 
species and its habitat.
Siltation (Sedimentation)
    Excess siltation has been specifically noted as a threat to the Elk 
River system. Portions of the lower Elk River were previously listed as 
impaired due to elevated levels of iron and aluminum (USEPA 2001b, p. 
1-1; Strager 2008, p. 36; WVDEP 2008a, p. 18; WVDEP 2008b, p. 1). The 
WVDEP has since revised those water quality criteria in order to 
address bioavailability of those metals, and established maximum 
amounts of these pollutants allowed to enter the waterbody (known as 
Total Maximum Daily Loads [TMDL]) (WVDEP 2010, p. 26; WVDEP 2008a, p. 
A-2). The WVDEP identified that impairment due to metals usually 
indicates excess sediment conditions (WVDEP 2008b, p. 5), and 
identified coal mining, oil and gas development, timber harvesting, 
all-terrain vehicle usage, and stream bank erosion as sources of 
increased sedimentation within the Elk River watershed (USEPA 2001b, 
pp. 1-1, 3-4 and 6; WVDEP 2008b, p. 1). Within two subwatersheds that 
make up approximately 11 percent of the total Elk River watershed area, 
the WVDEP identified 433 km (269 miles) of unimproved dirt roads and 76 
km (47 mi) of severely eroding stream banks (WVDEP 2008b, p. 5). There 
was also an estimated 1,328 ha (3,283 ac) of lands being actively 
timbered in those two watersheds in 2004 (WVDEP 2008b, p. 6). Although 
data on timber harvesting for the entire Elk River watershed are not 
available, it is likely that these types of activities are common 
because there are 11 known sawmills within the watershed, and forested 
land is the predominant land-use category in the area (Strager 2008, 
pp. 13, 29).
    Siltation has long been recognized as a pollutant that alters 
aquatic habitats by reducing light penetration, changing heat 
radiation, increasing turbidity, and covering the stream bottom (Ellis 
1936 in Grandmaison et al. 2003, p. 17). Increased siltation has also 
been shown to abrade and suffocate bottom-dwelling organisms, reduce 
aquatic insect diversity and abundance, and, ultimately, negatively 
impact fish growth, survival, and reproduction (Berkman and Rabeni 
1987, p. 285). Siltation directly affects the availability of food for 
the diamond darter by reducing the diversity and abundance of aquatic 
invertebrates on which the diamond darter feeds (Powell 1999, pp. 34-
35), and by increasing turbidity, which reduces foraging efficiency 
(Berkman and Rabeni 1987, pp. 285-294). Research has found that when 
the percentage of fine substrates increases in a stream, the abundance 
of benthic insectivorous fishes decreases (Berkamn and Rabeni 1987, p. 
285). Siltation also affects the ability of diamond darters to 
successfully breed by filling the small interstitial spaces between 
sand and

[[Page 43915]]

gravel substrates with silt. Diamond darters lay their eggs within 
these interstitial spaces. The complexity and abundance of interstitial 
spaces is reduced dramatically with increasing sediment inputs and the 
resulting increase in substrate embeddedness. Consequently, the amount 
of suitable breeding microhabitat for species such as the diamond 
darter is reduced (Bhowmik and Adams 1989, Kessler and Thorp 1993, 
Waters 1995, and Osier and Welsh 2007 all in Service 2008, pp. 15-16).
    Many researchers have noted that Crystallaria species are 
particularly susceptible to the effects of siltation, and Grandmaison 
et al. (2003, pp. 17-18) summarize the information as follows: 
``Bhowmik and Adams (1989) provide an example of how sediment 
deposition has altered aquatic habitat in the Upper Mississippi River 
system, where the construction of locks and dams has resulted in 
siltation leading to a successional shift from open water to habitats 
dominated by submergent and emergent vegetation. This successional 
process is not likely to favor species such as the crystal darter which 
rely on extensive clean sand and gravel raceways for population 
persistence (Page 1983). For example, the crystal darter was broadly 
distributed in tributaries of the Ohio River until high silt loading 
and the subsequent smothering of sandy substrates occurred (Trautman 
1981). In the Upper Mississippi River, the relative rarity of crystal 
darters has been hypothesized as a response to silt deposition over 
sand and gravel substrates (Hatch 1998)''. Although the Trautman (1981) 
citation within the above quote mentions the crystal darter, we now 
know that he was referring to individuals that have since been 
identified as diamond darters. In summary, Crystallaria species, 
including both the diamond darter and the crystal darter, are known to 
be particularly susceptible to the effects of sedimentation, and 
populations of these species have likely become extirpated or severely 
reduced in size as a result of this threat.
Water Quality/Sewage Treatment
    One common source of chemical water quality impairments is 
untreated or poorly treated wastewater (sewage). Municipal wastewater 
treatment has improved dramatically since passage of the 1972 
amendments to the Federal Water Pollution Control Act (which was 
amended to become the Clean Water Act in 1977), but some wastewater 
treatment plants, especially smaller plants, continue to experience 
maintenance and operation problems that lead to discharge of poorly 
treated sewage into streams and rivers (OEPA 2004 in Service 2008, p. 
23). According to the data available in 2008, there were a total of 30 
sewage treatment plants within the Elk River watershed (Strager 2008, 
p. 30).
    Untreated domestic sewage (straight piping) and poorly operating 
septic systems are still problems within the Elk River watershed (WVDEP 
1997, p. 54; WVDEP 2008b, p. 3). Untreated or poorly treated sewage 
contributes a variety of chemical contaminants to a stream including 
ammonia, pathogenic bacteria, nutrients (e.g., phosphorous and 
nitrogen), and organic matter that can increase biochemical oxygen 
demand (BOD) (Chu-Fa Tsai 1973, pp. 282-292; Cooper 1993, p. 405). The 
BOD is a measure of the oxygen consumed through aerobic respiration of 
micro-organisms that break down organic matter in the sewage waste. 
Excessive BOD and nutrients in streams can lead to low dissolved oxygen 
(DO) levels in interstitial areas of the substrate where a high level 
of decomposition and, consequently, oxygen depletion takes place 
(Whitman and Clark 1982, p. 653). Low interstitial DO has the potential 
to be particularly detrimental to fish such as the diamond darter which 
live on and under the bottom substrates of streams and lay eggs in 
interstitial areas (Whitman and Clark 1982, p. 653). Adequate oxygen is 
an important aspect of egg development, and reduced oxygen levels can 
lead to increased egg mortality, reduced hatching success, and delayed 
hatching (Keckeis et al. 1996, p. 436).
    Elevated nutrients in substrates can also make these habitats 
unsuitable for fish spawning, breeding, or foraging and reduce aquatic 
insect diversity which may impact availability of prey and ultimately 
fish growth (Chu-Fa Tsai 1973, pp. 282-292; Wynes and Wissing 1981, pp. 
259-267). Darters are noted to be ``highly sensitive'' to nutrient 
increases associated with sewage discharges, and studies have 
demonstrated that the abundance and distribution of darter species 
decreases downstream of these effluents (Katz and Gaufin 1953, p. 156; 
Wynes and Wissing 1981, p. 259). Elevated levels of fecal coliform 
signal the presence of improperly treated wastes (WVDEP 2008a, p. 7) 
that can cause the types of spawning, breeding, and foraging problems 
discussed above.
    The reach of the Elk River from the mouth to River Mile 102.5, 
which includes the area supporting the diamond darter, is currently on 
the State's CWA section 303(d) list of impaired waters due to 
violations of fecal coliform levels (WVDEP 2008a, p. 18; WVDEP 2010, p. 
26). There have been noticeable increases in fecal coliform near 
population centers adjacent to the Elk River, including the cities of 
Charleston, Elkview, Frametown, Gassaway, Sutton, and Clay (WVDEP 
2008b, p. 8). Elk River tributaries near Clendenin also show evidence 
of organic enrichment and elevated levels of fecal coliform (WVDEP 
1997, p. 48). The WVDEP notes that failing or nonexistent septic 
systems are prevalent throughout the lower Elk River watershed (WVDEP 
2008b, p. 1). In order to address water quality problems, the WVDEP 
conducted a more detailed analysis of two major tributary watersheds to 
the lower Elk River. They found that all residences in these watersheds 
were ``unsewered'' (WVDEP 2008b, p. 7). The Kanawha County Health 
Department Sanitarians estimate that the probable failure rate for 
these types of systems is between 25 and 30 percent, and monitoring 
suggests it may be as high as 70 percent (WVDEP 2008b, p. 7).
    In another study, it was noted that straight pipe and grey water 
discharges are often found in residences within the Elk River watershed 
because the extra grey water would overburden septic systems. These 
untreated wastes are discharged directly into streams. This grey water 
can contain many household cleaning and disinfectant products that can 
harm stream biota (WVDEP 1997, p. 54). Finally, there is the potential 
for inadvertent spills and discharges of sewage waste. In 2010, a 
section of stream bank along the Elk River near Clendenin failed and 
fell into the river, damaging a sewerline when it fell. The line then 
discharged raw sewage into the river (Marks 2010, p. 1). The diamond 
darter is known to occur in the Elk River near Clendenin; therefore, 
this discharge could have likely affected the species.
Impoundment
    One of the reasons the diamond darter may have been able to persist 
in the Elk River is because the river remains largely unimpounded. 
Although there is one dam on the Elk River near Sutton, approximately 
161 km (100 mi) of the river downstream of the dam retains natural, 
free-flowing riffle and pool characteristics, including the portion 
that supports the diamond darter (Strager 2008, p. 5; Service 2008). 
All the other rivers with documented historical diamond darter 
occurrences are now either partially or completely impounded. There are 
4 dams on the Green River, 8 dams on the Cumberland River, and 11 locks 
and dams on the

[[Page 43916]]

Muskingum River. A series of 20 locks and dams have impounded the 
entire Ohio River for navigation. Construction of most of these 
structures was completed between 1880 and 1950; however, the most 
recent dam constructed on the Cumberland River was completed in 1973 
(Clay 1975, p. 3; Trautman 1981, p. 25; Tennessee Historical Society 
2002, p. 4; American Canal Society 2009, p. 1; Ohio Division of Natural 
Resources 2009, p. 1).
    These impoundments have permanently altered habitat suitability in 
the affected reaches and fragmented stream habitats, blocking fish 
immigration and emigration between the river systems, and preventing 
recolonization (Grandmaison et al. 2003, p. 18). Trautman (1981, p. 25) 
notes that the impoundment of the Muskingum and Ohio Rivers for 
navigation purposes almost entirely eliminated riffle habitat in these 
rivers, increased the amount of silt settling on the bottom which 
covered former sand and gravel substrates, and affected the ability of 
the diamond darter to survive in these systems. In addition, almost the 
entire length of the Kanawha River, including the 53 km (33 mi) 
upstream of the confluence with the Elk River and an additional 93 km 
(58 mi) downstream to Kanawha's confluence with the Ohio River, has 
been impounded for navigation (U.S. Army Corps of Engineers (ACOE) 
1994, pp. 1, 13, 19). The series of dams and impoundments on this 
system likely impede movement between the only remaining population of 
the diamond darter in the Elk River and the larger Ohio River 
watershed, including the other known river systems with historical 
populations. Range fragmentation and isolation (see Factor E below) is 
noted to be a significant threat to the persistence of the diamond 
darter (Warren et al. 2000 in Grandmaison et al. 2003, p. 18).
Direct Habitat Disturbance
    There is the potential for direct disturbance, alteration, and fill 
of diamond darter habitat in the Elk River. Since 2009, there have been 
at least three proposed projects that had the potential to directly 
disturb habitat in the Elk River in reaches that are known to support 
the species. Plans for these projects have not yet been finalized. 
Project types have included bridges and waterline crossings. Direct 
disturbances to the habitat containing the diamond darter could kill or 
injure adult individuals, young, or eggs. Waterline construction that 
involves direct trenching through the diamond darter's habitat could 
destabilize the substrates, leading to increased sedimentation or 
erosion. Placement of fill in the river could result in the overall 
reduction of habitat that could support the species, and could alter 
flows and substrate conditions, making the area less suitable for the 
species (Welsh 2009d, p. 1).
    In addition, the expansion of gas development in the basin will 
likely lead to additional requests for new or upgraded gas transmission 
lines across the river. Pipeline stream crossings can affect fish 
habitat; food availability; and fish behavior, health, reproduction, 
and survival. The most immediate effect of instream construction is the 
creation of short-term pulses of highly turbid water and total 
suspended solids (TSS) downstream of construction (Levesque and Dube 
2007, pp. 399-400). Although these pulses are usually of relatively 
short duration and there is typically a rapid return to background 
conditions after activities cease, instream construction has been shown 
to have considerable effects on stream substrates and benthic 
invertebrate communities that persist after construction has been 
completed (Levesque and Dube 2007, p. 396-397). Commonly documented 
effects include substrate compaction, as well as silt deposition within 
the direct impact area and downstream that fills interstitial spaces 
and reduces water flow through the substrate, increasing substrate 
embeddedness and reducing habitat quality (Reid and Anderson 1999, p. 
243; Levesque and Dube 2007, pp. 396-397; Penkal and Phillips 2011, pp. 
6-7). Construction also directly alters stream channels, beds, and 
banks resulting in changes in cover, channel morphology, and sediment 
transport dynamics. Stream bank alterations can lead to increased water 
velocities, stream degradation, and stream channel migrations. Removal 
of vegetation from the banks can change temperature regimes, and 
increase sediment and nutrient loads (Penkal and Phillips 2011, pp. 6-
7).
    These instream changes not only directly affect the suitability of 
fish habitat, they also affect the availability and quality of fish 
forage by altering the composition and reducing the density of benthic 
invertebrate communities within and downstream of the construction area 
(Reid and Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 396-
399; Penkal and Phillips 2011, pp. 6-7). Various studies have 
documented adverse effects to the benthic community that have been 
apparent for between 6 months and 4 years post-construction (Reid and 
Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 399-400). 
Stream crossings have also been shown to affect fish physiology, 
survival, growth, and reproductive success (Levesque and Dube 2007, p. 
399). Studies have found decreased abundance of fish downstream of 
crossings, as well as signs of physiological stress such as increased 
oxygen consumption and loss of equilibrium in remaining fish downstream 
of crossings (Reid and Anderson 1999, pp. 244-245; Levesque and Dube 
2007, pp. 399-401). Increased sediment deposition and substrate 
compaction from pipeline crossing construction can degrade spawning 
habitat, result in the production of fewer and smaller fish eggs, 
impair egg and larvae development, limit food availability for young-
of-the-year fish, and increase stress and reduce disease resistance of 
fish (Reid and Anderson 1999, pp. 244-245; Levesque and Dube 2007, pp. 
401-402).
    The duration and severity of these effects depends on factors such 
as the duration of disturbance, the length of stream segment directly 
impacted by construction, and whether there are repeated disturbances 
(Yount and Niemi 1990, p. 557). Most studies documented recovery of the 
affected stream reach within 1 to 3 years after construction (Yount and 
Niemi 1990, pp. 557-558, 562; Reid and Anderson 1999, p. 247). However, 
caution should be used when interpreting results of short-term studies. 
Yount and Niemi (1990, p. 558) cite an example of one study that made a 
preliminary determination of stream recovery within 1 year, but when 
the site was reexamined 6 years later, fish biomass, fish populations, 
macroinvertebrate densities, and species composition were still 
changing. It was suspected that shifts in sediment and nutrient inputs 
to the site as a result of construction in and around the stream 
contributed to the long-term lack of recovery. In another study, 
alterations in channel morphology, such as increased channel width and 
reduced water depth, were evident 2 to 4 years post-construction at 
sites that lacked an intact forest canopy (Reid and Anderson 1999, p. 
243).
    There is also the potential for cumulative effects. While a single 
crossing may have only short-term or minor effects, multiple crossings 
or multiple sources of disturbance and sedimentation in a watershed can 
have cumulative effects on fish survival and reproduction that exceed 
the recovery capacity of the river, resulting in permanent detrimental 
effects (Levesque and Dube 2007, pp. 406-407). Whether or how quickly a 
stream population recovers depends on factors such as the life-history 
characteristics of the species, and the availability of

[[Page 43917]]

unaffected populations upstream and downstream as a source of organisms 
for recolonization (Yount and Niemi 1990, p. 547). Species such as the 
diamond darter that are particularly susceptible to the effects of 
sedimentation and substrate embeddedness, and that have limited 
distribution and population numbers, are likely to be more severely 
affected by instream disturbances than other more common and resilient 
species.
Summary of Factor A
    In summary, there are significant threats to the diamond darter 
from the present and threatened destruction, modification, or 
curtailment of its habitat. Threats include discharges from activities 
such as coal mining and oil and gas development, sedimentation from a 
variety of sources, pollutants originating from inadequate wastewater 
treatment, habitat changes caused by impoundments, and direct habitat 
disturbance. These threats are ongoing, severe, and occur throughout 
the species' entire range. We have no information indicating that these 
threats are likely to be appreciably reduced in the future, and in the 
case of gas development, we expect this threat to increase over the 
next several years as shale gas development continues to intensify.

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

    Due to the small size and limited distribution of the only 
remaining population, the diamond darter is potentially vulnerable to 
overutilization. Particular care must be used to ensure that collection 
for scientific purposes does not become a long-term or substantial 
threat. It is possible that previous scientific studies may have 
impacted the population. Of the fewer than 50 individuals captured to 
date, 14 either died as a result of the capture or were sacrificed for 
use in scientific studies. Nineteen were removed from the system and 
were used for the establishment of a captive breeding program. Two have 
died in captivity. It should be noted that there were valid scientific 
purposes for most of these collections. In order to verify the 
identification and permanently document the first record of the species 
in West Virginia, the specimen captured in 1980 was preserved as a 
voucher specimen consistent with general scientific protocols of the 
time. Subsequent surveys in the 1990s were conducted for the specific 
purpose of collecting additional specimens to be used in the genetic 
and morphological analyses required to determine the taxonomic and 
conservation status of the species. The extent and scope of these 
studies were determined and reviewed by a variety of entities including 
the WVDNR, the Service, USGS, university scientists, and professional 
ichthyologists (Tolin 1995, p. 1; Wood and Raley 2000, pp. 20-26; 
Lemarie 2004, pp. 1-57; Welsh and Wood 2008, pp. 62-68).
    In addition, when these collections were initiated, insufficient 
data were available to establish the overall imperiled and unique 
status of the species. Because these studies are now complete, there 
should be limited need to sacrifice additional individuals for 
scientific analysis. The captive breeding program was established after 
a review of the conservation status of the species identified that 
there were imminent threats to the last remaining population, and 
species experts identified the need to establish a captive ``ark'' 
population in order to avert extinction in the event of a spill or 
continued chronic threats to the species. The establishment of this 
program should contribute to the overall conservation of the species 
and may lead to the eventual augmentation of populations. However, 
caution must still be used to ensure that any additional collections do 
not affect the status of wild populations.
    It is possible that future surveys conducted within the range of 
the species could inadvertently result in mortality of additional 
individuals. For example, during some types of inventory work, fish 
captured are preserved in the field and brought back to the lab for 
identification. Young-of-the-year diamond darters are not easily 
distinguished from other species, and their presence within these 
samples may not be realized until after the samples are processed. This 
was the case during studies recently conducted by a local university 
(Cincotta 2009a, p. 1). Future surveys should be designed with 
protocols in place to minimize the risk that diamond darters will be 
inadvertently taken during nontarget studies. The WVDNR currently 
issues collecting permits for all surveys and scientific collections 
conducted within the State and incorporates appropriate conditions into 
any permits issued for studies that will occur within the potential 
range of the species. This limits the overall potential for 
overutilization for scientific purposes.
    Although the species has no present commercial value, it is 
possible that live specimens may be collected for the aquarium trade 
(Walsh et al. 2003 in Grandmaison et al. 2003 p. 19), and that once its 
rarity becomes more widely known, it may become attractive to 
collectors. However, there is no information available to suggest that 
this is currently a threat. There are no known recreational or 
educational uses for the species.
    As a result, we find that overutilization for commercial, 
recreational, scientific, or educational purposes is not an imminent 
threat to the diamond darter at this time. For a species with a limited 
range and population size, there is the potential that overutilization 
for scientific purposes could have an effect on the viability of the 
species. However, there is limited need for additional research that 
would require the sacrifice of individuals. Based on our review of the 
best available scientific and commercial information, overutilization 
is not currently or likely to become a significant threat to the 
species in the future.

Factor C. Disease or Predation

    There is no specific information available to suggest that disease 
or predation present an unusual threat to diamond darters. Although 
some natural predation by fish and wildlife may occur, darters usually 
constitute only an almost incidental component in the diet of predators 
(Page 1983, p. 172). This incidental predation is not considered to 
currently pose a significant threat to the species.
    Commonly reported parasites and diseases of darters, in general, 
include black-spot disease, flukes, nematodes, leeches, spiny-headed 
worms, and copepods (Page 1983, p. 173). None of the best available 
information regarding diamond darters captured to date, or reports on 
the related crystal darter, note any incidences of these types of 
issues. As a result, we find that disease or predation does not 
currently pose a threat to the species, and we found no available 
information that indicates disease or predation is currently or likely 
to become a threat to the diamond darter in the future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    There are few existing Federal or State regulatory mechanisms that 
specifically protect the diamond darter or its aquatic habitat where it 
currently occurs. The diamond darter and its habitats are afforded some 
protection from water quality and habitat degradation under the Clean 
Water Act of 1977 (33 U.S.C. 1251 et seq.), Surface Mining Control and 
Reclamation Act of 1977 (30 U.S.C. 1234-1328), West Virginia Logging 
and Sediment Control Act (WVSC Sec.  19-1B), and additional West 
Virginia laws and

[[Page 43918]]

regulations regarding natural resources and environmental protection 
(WVSC Sec.  20-2-50; Sec.  22-6A; Sec.  22-26-3). However, as 
demonstrated under Factor A, degradation of habitat for this species is 
ongoing despite the protection afforded by these laws and corresponding 
regulations. While these laws have resulted in some improvements in 
water quality and stream habitat for aquatic life, including the 
diamond darter, they alone have not been adequate to fully protect this 
species. Water quality degradation, sedimentation, nonpoint-source 
pollutants, and habitat alteration continue to threaten the species.
    Although water quality has generally improved since 1977 when the 
Clean Water Act (33 U.S.C. 1251 et seq.) and Surface Mining Control and 
Reclamation Act (30 U.S.C. 1234-1328) were enacted or amended in 1977, 
there is continuing, ongoing degradation of water quality within the 
range of the diamond darter. A total of 214 streams within the Elk 
River watershed have been identified as impaired by the WVDEP and 
placed on the State's 303(d) list (WVDEP 2011b, p. viii). Causes of 
impairment that were identified include existing mining operations, 
abandoned mine lands, fecal coliform from sewage discharges, roads, oil 
and gas operations, timbering, land use disturbance (urban, 
residential, or agriculture), and stream bank erosion (WVDEP 2011b, pp. 
viii-ix). For water bodies on the 303(d) list, States are required 
under the Clean Water Act to establish a TMDL for the pollutants of 
concern that will improve water quality to meet the applicable 
standards. The WVDEP has established TMDLs for total iron, dissolved 
aluminum, total selenium, pH, and fecal coliform bacteria. The total 
iron TMDL is used as a surrogate to address impacts associated with 
excess sediments (WVDEP 2011b, p. 47). Because these TMDLs have just 
recently been established, it is not known how effective they will be 
at reducing the levels of these pollutants, or how long streams within 
the Elk River watershed will remain impaired. In addition, TMDLs apply 
primarily to point-source discharge permits, and since nonpoint sources 
may also contribute to sediment loading in the watershed, TMDLs are 
not, at this time, an adequate mechanism to address sedimentation. The 
Service is also not aware of any other current or future changes to 
State or Federal water quality or mining laws that will substantially 
affect the currently observed degradation of water quality.
    Nonpoint-source pollution, originating from many sources at 
different locations, is considered to be a continuing threat to diamond 
darter habitats. Current laws do not adequately protect diamond darter 
and its habitats from nonpoint-source pollution, because there is 
limited compliance with existing laws to prevent sediment entering 
waterways. For example, forestry operations do not have permitting 
requirements under the Clean Water Act because there is a silvicultural 
exemption as long as best management practices (BMPs) are used to help 
control nonpoint-source pollution (Ryder and Edwards 2006, p. 272). The 
West Virginia Logging Sediment Control Act was developed to protect 
aquatic resources, such as the diamond darter's habitat, in response to 
the requirements of the Clean Water Act and mandates the use of BMPS in 
order to reduce the amount of sediment from logging operations that 
enters nearby waterways (West Virginia Division of Forestry (WVDOF) 
undated, p. 1). Without properly installed BMPs, logging operations can 
increase sediment loading into streams (WVDEP 2011b, p. 35).
    A survey of randomly selected logging operations throughout West 
Virginia estimated that overall compliance with these BMPs averaged 74 
percent, and compliance with specific categories of BMPs varied from 81 
percent compliance with BMPs related to construction of haul roads, to 
only 55 percent compliance with BMPs related to the establishment and 
protection of streamside management zones (Wang et al. 2007, p. 60). 
Another study evaluating the effects of forestry haul roads documented 
that watershed turbidities increased significantly following road 
construction and that silt fences installed to control erosion became 
ineffectual near stream crossings and allowed substantial amounts of 
sediment to reach the channel (Wang et al. 2010, p. 1). Because the 
BMPs are not always strictly applied and logging activities can still 
be a significant nonpoint-source of water quality impairment, the West 
Virginia Logging Sediment Control Act is currently considered an 
inadequate regulatory mechanism for the protection of aquatic habitats 
that support the diamond darter.
    West Virginia State laws regarding oil and gas drilling, including 
recently enacted changes to West Virginia State Code Sec.  22-6A, are 
generally designed to protect fresh water resources like the diamond 
darter's habitat, but the laws do not contain specific provisions 
requiring an analysis of project impacts to fish and wildlife 
resources. They also do not contain or provide any formal mechanism 
requiring coordination with, or input from, the Service or the WVDNR 
regarding the presence of federally threatened, endangered, or 
candidate species, or other rare and sensitive species. Thus, although 
the State Code is designed to protect fresh water resources and the 
environment, compliance with this existing oil and gas development 
regulatory mechanism is insufficient to protect the diamond darter or 
its habitat.
    West Virginia State Code Sec.  20-2-50 prohibits taking fish 
species for scientific purposes without a permit. The WVDNR currently 
issues collecting permits for surveys conducted within the State and 
incorporates appropriate conditions into any permits issued for studies 
that will occur within the potential range of the species. While this 
should limit the number of individuals impacted by survey and research 
efforts, this requirement does not provide any protection to the 
species' habitat.
    The diamond darter is indirectly provided some protection from 
Federal actions and activities through the Federal Endangered Species 
Act because the Elk River also supports five federally endangered 
mussel species. The reach of the Elk River currently known to support 
the diamond darter also supports the pink mucket (Lampsilis abrupta), 
the northern riffleshell (Epioblasma torulosa rangiana), the rayed bean 
(Villosa fabalis), and the snuffbox (Epioblasma triquetra). The 
clubshell mussel (Pleurobema clava) occurs in the reach of the Elk 
River upstream of the diamond darter. However, protective measures for 
listed freshwater mussels have generally involved surveys for mussel 
species presence and minimization of direct habitat disturbance in 
areas with confirmed presence. The diamond darter is more mobile and 
therefore is likely to be present within a less restricted area than 
most mussel species. Surveys for mussels will not detect diamond 
darters. As a result, these measures provide some limited protection 
for the diamond darter, but only in specific locations where it co-
occurs with these mussel species.
    In summary, degradation of habitat for the diamond darter is 
ongoing despite existing regulatory mechanisms. These regulatory 
measures have been insufficient to significantly reduce or remove the 
threats to the diamond darter.

[[Page 43919]]

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

Didymosphenia geminate
    The presence of Didymosphenia geminate, an alga known as ``didymo'' 
or ``rock snot'' has the potential to adversely affect diamond darter 
populations in the Elk River. This alga, historically reported to occur 
in cold, northern portions of North America (e.g., British Columbia), 
has been steadily expanding its range within the last 10 to 20 years, 
and has now been reported to occur in watersheds as far east and south 
as Arkansas and North Carolina (Spaulding and Elwell 2007, pp. 8-21). 
The species has also begun occurring in large nuisance blooms that can 
dominate stream surfaces by covering 100 percent of the substrate with 
mats up to 20 cm (8 in) thick, extending over 1 km (0.6 mi) and 
persisting for several months (Spaulding and Elwell 2007, pp. 3, 6). 
Didymo can greatly alter the physical and biological conditions of 
streams in which it occurs and cause changes to algal, invertebrate, 
and fish species diversity and population sizes; stream foodweb 
structure; and stream hydraulics (Spaulding and Elwell 2007, pp. 3, 
12). Didymo is predicted to have particularly detrimental effects on 
fish, such as the diamond darter, that inhabit stream bottom habitats 
or consume bottom-dwelling prey (Spaulding and Elwell 2007, p. 15).
    While didymo was previously thought to be restricted to cold water 
streams, it is now known to occur in a wider range of temperatures, and 
it has been documented in waters that were up as high as 27 [deg]C 
(80[emsp14][deg]F) (Spaulding and Elwell 2007, pp. 8, 10, 16). It can 
also occur in a wide range of hydraulic conditions including slow-
moving, shallow areas, and areas with high depths and velocities 
(Spaulding and Elwell 2007, pp. 16-17). Didymo can be spread large 
distances either through the water column or when items such as fishing 
equipment, boots, neoprene waders, and boats are moved between affected 
and unaffected sites (Spaulding and Elwell 2007, pp. 19-20). For 
example, in New Zealand, didymo spread to two sites over 100 km (62.1 
mi) and 450 km (279.6 mi) away from the location of the first 
documented bloom within 1 year (Kilroy and Unwin 2011, p. 254).
    Although it has not been documented to occur in the lower Elk River 
where the diamond darter occurs, in 2008 the WVDNR documented the 
presence of didymo in the upper Elk River, above Sutton Dam near 
Webster Springs, which is over 120 km (74.5 mi) upstream from known 
diamond darter locations (WVDNR 2008, p. 1). Anglers have also reported 
seeing heavy algal mats, assumed to be didymo, in the upstream reach of 
the river (WVDNR 2008, p. 1). Therefore, there is potential that the 
species could spread downstream to within the current range of the 
diamond darter in the future. If it does spread into the diamond darter 
habitat, it could degrade habitat quality and pose a significant threat 
to the species.
Geographic Isolation, Loss of Genetic Variation, and Climate Change
    The one existing diamond darter population is small in size and 
range, and it is geographically isolated from other areas that 
previously supported the species. The diamond darter's distribution is 
restricted to a short stream reach, and its small population size makes 
it extremely susceptible to extirpation from a single catastrophic 
event (such as a toxic chemical spill or storm event that destroys its 
habitat). Therefore, reducing the potential ability to recover from the 
cumulative effects of smaller chronic impacts to the population and 
habitat such as progressive degradation from runoff (nonpoint source 
pollutants), and direct disturbances.
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
and reducing the fitness of individuals (Soule 1980, pp. 157-158; 
Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). 
Similarly, the random loss of adaptive genes through genetic drift may 
limit the ability of diamond darters to respond to changes in their 
environment such as climate change, or the catastrophic events and 
chronic impacts described above (Noss and Cooperrider 1994, p. 61). 
Small population sizes and inhibited gene flow between populations may 
increase the likelihood of local extirpation (Gilpin and Soul[eacute] 
1986, pp. 32-34). The long-term viability of a species is founded on 
the conservation of numerous local populations throughout its 
geographic range (Harris 1984, pp. 93-104). These separate populations 
are essential for the species to recover and adapt to environmental 
change (Harris 1984, pp. 93-104; Noss and Cooperrider 1994, pp. 264-
297). The current population of the diamond darter is restricted to one 
section of one stream. This population is isolated from other suitable 
and historical habitats by dams that are barriers to fish movement. The 
level of isolation and restricted range seen in this species makes 
natural repopulation of historical habitats or other new areas 
following previous localized extirpations virtually impossible without 
human intervention.
    Climate change has the potential to increase the vulnerability of 
the diamond darter to random catastrophic events and to compound the 
effects of restricted genetic variation and isolation. Current climate 
change predictions for the central Appalachians indicate that aquatic 
habitats will be subject to increased temperatures and increased 
drought stress, especially during the summer and early fall (Buzby and 
Perry 2000, p. 1774; Byers and Norris 2011, p. 20). There will likely 
be an increase in the variability of stream flow, and the frequency of 
extreme events such as drought, severe storms, and flooding is likely 
to increase statewide (Buzby and Perry 2000, p. 1774; Byers and Norris 
2011, p. 20). While the currently available information on the effects 
of climate change is not precise enough to predict the extent to which 
climate change will degrade diamond darter habitat, species with 
limited ranges that are faced with either natural or anthropomorphic 
barriers to movement, such as the dams that fragmented and isolated the 
historical diamond darter habitat, have been found to be especially 
vulnerable to the effects of climate change (Byers and Norris 2011, p. 
18). Thus, the small population size and distribution of the diamond 
darter makes the species particularly susceptible to risks from 
catastrophic events, loss of genetic variation, and climate change.
Summary of Factor E
    In summary, because the diamond darter has a limited geographic 
range and small population size, it is subject to several other 
ongoing, natural and manmade threats. These threats include the spread 
of Didymosphenia geminate; loss of genetic fitness; and susceptibility 
to spills, catastrophic events, and impacts from climate change. These 
threats to the diamond darter are current and are expected to continue 
rangewide into the future. The severity of these threats is high 
because of the reduced range and population size which result in a 
reduced ability to adapt to environmental change. Further, our review 
of the best available scientific and commercial information indicates 
that these threats are likely to continue or increase in the future.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information

[[Page 43920]]

available regarding the past, present, and future threats to the 
diamond darter. The primary threats to the diamond darter are related 
to the present or threatened destruction, modification, or curtailment 
of its habitat or range (Factor A). The species is currently known to 
exist only in the lower Elk River, West Virginia. This portion of the 
watershed is currently impacted by ongoing water quality degradation 
and habitat loss from activities associated with coal mining and oil 
and gas development, siltation from these and other sources, inadequate 
sewage and wastewater treatment, and direct habitat loss and 
alteration. The impoundment of rivers in the Ohio River Basin, such as 
the Kanawha, Ohio, and Cumberland Rivers, has eliminated much of the 
species' habitat and isolated the existing population from other 
watersheds that the species historically occupied.
    The species could potentially be vulnerable to overutilization for 
scientific purposes (Factor B), but the significance of this threat is 
adequately regulated through the State's administration of scientific 
collecting permits. There are no known threats to the diamond darter 
from disease or predation (Factor C). Existing Federal and State 
regulatory mechanisms such as the Clean Water Act, Surface Mining 
Control and Reclamation Act, and the West Virginia Sediment Logging 
Control Act do not provide adequate protections for the diamond darter 
or its aquatic habitat (Factor D). The small size and restricted range 
of the remaining diamond darter population makes it particularly 
susceptible to the spread of didymo and effects of genetic inbreeding, 
and extirpation from spills and other catastrophic events (Factor E). 
In addition to the individual threats discussed under Factors A and E, 
each of which is sufficient to warrant the species' listing, the 
cumulative effect of Factors A, D, and E is such that the magnitude and 
imminence of threats to the diamond darter are significant throughout 
its entire current range.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We find that the diamond darter, which 
consists of only one population (occurrence), is presently in danger of 
extinction throughout its entire range, due to the immediacy, severity, 
and scope of the threats described above. Because the species is 
currently limited to one small, isolated population in an aquatic 
environment that is currently facing numerous, severe, and ongoing 
water quality threats which are likely to increase over time, we find 
that the diamond darter does not meet the definition of a threatened 
species. Therefore, on the basis of the best available scientific and 
commercial information, we propose listing the diamond darter as 
endangered in accordance with sections 3(6) and 4(a)(1) of the Act.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is threatened or endangered throughout all or a 
significant portion of its range. The diamond darter proposed for 
listing in this rule is highly restricted in its range and the threats 
to the survival of the species are not restricted to any particular 
significant portion of that range. Therefore, we assessed the status of 
the species throughout its entire range. Accordingly, our assessment 
and proposed determination apply to the species throughout its entire 
range.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition of the species through its listing results in 
public awareness and conservation by Federal, State, Tribal, and local 
agencies, private organizations, and individuals. The Act encourages 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection measures required of 
Federal agencies and the prohibitions against certain activities are 
discussed in Effects of Critical Habitat Designation and are further 
discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, such that they no longer need the protective measures 
of the Act. Subsection 4(f) of the Act requires the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species, unless we find that such a plan will not promote 
the conservation of the species. The recovery planning process involves 
the identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that set a trigger for review of the five factors 
that control whether a species remains endangered or may be downlisted 
or delisted, and methods for monitoring recovery progress. Recovery 
plans also establish a framework for agencies to coordinate their 
recovery efforts and provide estimates of the cost of implementing 
recovery tasks. Recovery teams (comprising species experts, Federal and 
State agencies, nongovernmental organizations, and stakeholders) are 
often established to develop recovery plans. When completed, the 
recovery outline, draft recovery plan, and the final recovery plan will 
be available on our Web site (http://www.fws.gov/endangered), or from 
our West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, states, tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, state 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of West Virginia, 
Kentucky, Tennessee, and Ohio would be eligible for Federal funds to 
implement management actions that promote the protection or recovery of

[[Page 43921]]

the diamond darter. Information on our grant programs that are 
available to aid species recovery can be found at: http://www.fws.gov/grants.
    Although the diamond darter is only proposed for listing under the 
Act at this time, please inform us of your interest in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed, section 7(a)(2) of the Act requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include the issuance of section 404 Clean Water Act permits 
by the Army Corps of Engineers; construction and management of gas 
pipeline and power line rights-of-way or hydropower facilities by the 
Federal Energy Regulatory Commission; construction and maintenance of 
roads, highways, and bridges by the Federal Highway Administration; 
pesticide regulation by the U.S. Environmental Protection Agency; and 
issuance of coal mining permits by the Office of Surface Mining.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 
50 CFR 17.21 for endangered wildlife, in part, make it illegal for any 
person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import, export, ship 
in interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. 
Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and state conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens at least 100 years old, as 
defined by section 10(h)(1) of the Act.
    (2) Violation of any permit that results in harm or death to any 
individuals of this species or that results in degradation of its 
habitat to an extent that essential behaviors such as breeding, feeding 
and sheltering are impaired.
    (3) Unlawful destruction or alteration of diamond darter habitats 
(e.g., unpermitted instream dredging, impoundment, water diversion or 
withdrawal, channelization, discharge of fill material) that impairs 
essential behaviors such as breeding, feeding, or sheltering, or 
results in killing or injuring a diamond darter.
    (4) Unauthorized discharges or dumping of toxic chemicals or other 
pollutants into waters supporting the diamond darter that kills or 
injures individuals, or otherwise impairs essential life-sustaining 
behaviors such as breeding, feeding, or finding shelter.
    Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may 
be likely to result from such activity should we list the diamond 
darter as endangered. Compliance with a State permit, or lack of need 
for a State permit, does not necessarily provide coverage against 
violations of section 9 of the Act, particularly if the State review 
has not yet included protections to ensure that adverse effects to 
federally listed species are avoided. The Service does not consider the 
description of future and ongoing activities provided above to be 
exhaustive; we provide them simply as information to the public.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the West 
Virginia Field Office (see FOR FURTHER INFORMATION CONTACT). Requests 
for copies of the regulations concerning listed animals and general 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Endangered Species Permits, 300 
Westgate Center Drive, Hadley, MA 01035-9589 (Phone 413-253-8200; Fax 
413-253-8482) or information can be viewed at our permit Web site at 
http://www.fws.gov/endangered/permits/how-to-apply.html.

Critical Habitat Designation for Diamond Darter

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the diamond darter 
in this section of the proposed rule.
    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;
    (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

[[Page 43922]]

that are necessary to bring an endangered or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. 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 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the 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.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species, and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of physical or biological features that provide for a 
species' life-history processes, and are essential to the conservation 
of the species.
    Under the second prong of the Act's definition of critical habitat, 
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. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. 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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas 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 the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions 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 and 
Lovejoy 2003, p. 4). In particular, we recognize that climate change 
may cause changes in the arrangement of occupied habitat and stream 
reaches. Current climate change predictions for the central 
Appalachians indicate that aquatic habitats will be subject to 
increased temperatures and increased drought stress, especially during 
the summer and early fall. There will likely be an increase in the 
variability of stream flow, and the frequency of extreme events, such 
as drought, severe storms, and flooding, is likely to increase 
statewide (Buzby and Perry 2000, p. 1774; Byers and Norris 2011, p. 
20). Species with limited ranges and that are faced with either natural 
or anthropomorphic barriers to movement, such as the dams that fragment 
and isolate diamond darter habitat, have been found to be especially 
vulnerable to the effects of climate change (Byers and Norris 2011, p. 
18).
    Precise estimates of the location and magnitude of impacts from 
global climate change and increasing temperatures cannot be made from 
the currently available information. Nor are we currently aware of any 
climate change information specific to the habitat of the diamond 
darter that would indicate what areas may become important to the 
species in the future. However, among the most powerful strategies for 
the long-term conservation of biodiversity is establishment of networks 
of intact habitats and conservation areas that represent a full range 
of ecosystems, and include multiple, robust examples of each type. The 
principles of resiliency and redundancy are at the core of many 
conservation planning efforts, and are increasingly important as the 
stresses of climate change erode existing habitats (Byers and Norris 
2011, p. 24). Therefore, we have attempted to incorporate these 
principles into our proposed determination of critical habitat by 
delineating two units that are representative of the range of habitats 
currently and previously occupied by the species.
    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

[[Page 43923]]

habitat outside the designated area is unimportant or may not be needed 
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 ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9's prohibition on taking any individual of 
the species, including taking caused by actions that affect habitat. 
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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species; or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is no documentation of commercial or private collection of 
the diamond darter. Although that activity is identified as a possible 
but unlikely threat to the species, the significance of collection to 
the viability of the species' populations is not known. In the absence 
of a finding that the designation of critical habitat would increase 
threats to a species, if there are any benefits to a critical habitat 
designation, then a prudent finding is warranted. The potential 
benefits include: (1) Triggering consultation under section 7 of the 
Act, in new areas for actions in which there may be a Federal nexus 
where it would not otherwise occur because, for example, it is or has 
become unoccupied or the occupancy is in question; (2) focusing 
conservation activities on the most essential features and areas; (3) 
providing educational benefits to State or county governments or 
private entities; and (4) preventing people from causing inadvertent 
harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. At this 
time, the diamond darter occurs on State and private lands along the 
Elk River in West Virginia. Lands proposed for designation as critical 
habitat would be subject to Federal actions that trigger section 7 
consultation requirements. These include land management planning and 
Federal agency actions. There may also be educational or outreach 
benefits to the designation of critical habitat. These benefits include 
the notification of lessees and the general public of the importance of 
protecting the habitats of both of these rare species.
    In the case of the diamond darter, these aspects of critical 
habitat designation would potentially benefit the conservation of the 
species. Therefore, if the threat of commercial or private collection 
exists for the species, it is outweighed by the conservation benefits 
derived from the designation of critical habitat. We therefore find 
that designation of critical habitat is prudent for the diamond darter.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the eight 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where these species 
are located. This and other information represent the best scientific 
data available and led us to conclude that the designation of critical 
habitat is determinable for diamond darter.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(2) 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 or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection (50 
CFR 424.12(b)). These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the diamond darter from studies of this species' habitat, ecology, and 
life history as described below. Because diamond darters are so rare, 
there is very little information available with which to quantitatively 
define the optimal or range of suitable conditions for a specific 
biological or physical feature needed by the species. However, the 
available, species-specific information, in combination with 
information from the closely related crystal darter and other similar 
darter species, provides sufficient information to qualitatively 
discuss the physical and biological features needed to support the 
species. Based on this review, we have determined that the following 
physical and biological features are essential for the diamond darter:
Space for Individual and Population Growth and for Normal Behavior
    The diamond darter inhabits moderate to large, warmwater streams 
with clean sand and gravel substrates (Simon and Wallus 2006, p. 52). 
Moderate to large warmwater streams are defined as fourth to eighth 
order streams with a drainage area exceeding 518 km\2\ (200 mi\2\) and 
temperatures exceeding 20 [deg]C (68 [deg]F) at some point during the 
year (Winger 1981, p. 40;

[[Page 43924]]

Oliverio and Anderson 2008, p. 12). In the Elk River, the diamond 
darter has been collected in transition areas between riffles and pools 
where substrates were greater than 40 percent sand and gravel (Welsh et 
al. 2004, p. 6; Osier 2005, p. 11; Welsh and Wood 2008, pp. 62-68). 
These habitat characteristics are similar to those described for the 
crystal darter (Welsh et al. 2008, p. 1). Many studies have found that 
the crystal darter does not occur in areas with large amounts of mud, 
clay, detritus, or submerged vegetation (George et al. 1996, p. 71; 
Shepard et al. 1999 in Osier 2005, p. 11; NatureServe 2008, p. 1). The 
presence of clean sand and gravel substrates with low levels of silt 
appears to be a critical component of diamond darter habitat.
    Siltation (excess sediments suspended or deposited in a stream) has 
been shown to negatively impact fish growth, survival, and reproduction 
(Berkman and Rabeni 1987, p. 285). Both the diamond darter and the 
crystal darter are noted to be particularly susceptible to the effects 
of siltation and may have been extirpated from historical habitats due 
to excessive siltation (Grandmaison et al. 2003, pp. 17-18). Siltation 
can result from increased erosion along stream banks and roads and 
deposition caused by land-based disturbances (Rosgen 1996, p. 1-3). 
Coal mining, oil and gas development, timber harvesting, and all-
terrain vehicle usage have been identified as land-based disturbances 
that are sources of increased siltation within the Elk River watershed 
(USEPA 2001b, pp. 1-1, 3-4, 6; WVDEP 2008b, p. 1). Increased siltation 
can also result from stream bank erosion and channel instability 
(Rosgen 1996, p. 1-3). Geomorphically stable streams transport sediment 
while maintaining their horizontal and vertical dimensions (width/depth 
ratio and cross-sectional area), pattern (sinuosity), longitudinal 
profile (riffles, runs, and pools), and substrate composition (Rosgen 
1996, pp. 1-3 to 1-6). Thus, geomorphically stable streams maintain the 
riffles and pools and silt-free substrates necessary to provide typical 
habitats for the diamond darter.
    Fragmentation and destruction of habitat has reduced the current 
range of the diamond darter to only one stream and has isolated the 
last remaining population, reducing the currently available space for 
rearing and reproduction. Small, isolated populations may have reduced 
adaptive capability and an increased likelihood of extinction (Gilpin 
and Soul[eacute] 1986, pp. 32-34; Noss and Cooperrider 1994, p. 61). 
Continuity of water flow and connectivity between remaining suitable 
habitats is essential in preventing further fragmentation of the 
species' habitat and population. Free movement of water within the 
stream allows darters to move between available habitats. This is 
necessary to provide sufficient space for the population to grow and to 
promote genetic flow throughout the population. Continuity of habitat 
helps to maintain space for spawning, foraging, and resting sites, and 
also permits improvement in water quality and water quantity by 
allowing unobstructed water flow throughout the connected habitats. 
Thus, free movement of water that provides connectivity between 
habitats is necessary to support diamond darter populations.
    There is little information available on the amount of space needed 
by either the diamond darter or the crystal darter for population 
growth and normal behavior. Many individuals of other darter species 
that use similar habitat types have been found to remain in one habitat 
area during short-term mark and recapture studies. However upstream and 
downstream movements of other darters between riffles and between 
riffles and pools have been documented. Within-year movements typically 
ranged from 36 to 420 meters (118.1 to 1,378.0 ft), and movements of up 
to 4.8 km (3.0 mi) have been documented (May 1969, pp. 86-87, 91; 
Freeman 1995, p. 363; Roberts and Angermeier 2007, pp. 422, 424-427).
    In addition, a number of researchers have suggested that 
Crystallaria move upstream to reproduce when they mature, and that 
free-floating young-of-the-year disperse considerable distances 
downstream during spring high water where they eventually find suitable 
habitat to grow and mature (Stewart et al. 2005, p. 472; Hrabik 2012, 
p. 1). This suggests that Crystallaria may make long-distance movements 
in large rivers. This type of migratory behavior has been documented in 
bluebreast darters (Etheostoma camurum) (Trautman 1981, pp. 673-675). 
This species inhabits moderate to large-sized streams with low 
turbidity and is typically found in riffles, similar to the diamond 
darter. Trautman (1981, pp. 673-675) found that bluebreast darters were 
well distributed throughout a 51-km (32-mile) reach of river during the 
breeding season, but that there was a reduction in numbers in the upper 
half of this reach starting in September and continuing through late 
winter to early spring. There was a corresponding increase in numbers 
in the lower half of the reach during this time. Individual darters 
captured in the spring were documented to have moved 152 m (500 ft) in 
a single day. In September and October, Trautman captured bluebreast 
darters in deep, low-velocity pools, which are not typical habitats for 
the species. He concluded that bluebreast and other darter species 
migrated upstream in spring and downstream in the fall (Trautman 1981, 
pp. 673-675). Based on this information, free movement between habitat 
types within a significant length of stream may be important to provide 
sufficient space to support normal behavior and genetic mixing of the 
diamond darter.
    Based on the biological information and needs discussed above, we 
identify riffle-pool complexes in moderate to large-sized (fourth to 
eighth order), warmwater streams that are geomorphically stable with 
moderate current, clean sand and gravel substrates, and low levels of 
siltation to be physical or biological features essential to the 
conservation of the diamond darter.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Feeding habits of the diamond darter in the wild are not known. 
However, it is expected that, similar to the crystal darter, adult 
diamond darters are benthic invertivores (NatureServe 2008, p. 8). 
Crystal darters eat midge and caddisfly larvae, and water mites in 
lesser quantities (Osier 2005, p. 13). Juvenile and young crystal 
darters feed on immature stages of aquatic insects such as mayflies, 
craneflies, blackflies, caddisflies, and midges (Simon and Wallus 2006, 
pp. 56-57). Diamond darters kept in captivity were fed and survived on 
live blackworms, daphnia, and dragonfly larvae, frozen bloodworms, and 
adult brine shrimp (Ruble et al. 2010, p. 4). Diamond darters may use 
an ambush foraging tactic by burying in the sand and darting out at 
prey (Robinson 1992 and Hatch 1997 in Osier 2005, pp. 12-13; 
NatureServe 2008, p. 1; Ruble 2011c, p. 1). When in captivity, diamond 
darters were also observed resting on the bottom of the tank and taking 
food from slightly above their position, in front of them, or off the 
bottom (Welsh 2009c, p. 1). Juvenile diamond darters hatched in 
captivity had teeth and a large gape width, which suggests that the 
larvae may feed on other smaller fish larvae (Ruble et al. 2010, p. 
15).
    Researchers were unable to confirm this hypothesis due to poor 
survivorship of the diamond darter larvae and lack of available smaller 
fish larvae to provide as a potential food source (Ruble et al. 2010, 
pp. 12-14). As explained in the Life History and Habitat section above,

[[Page 43925]]

the juveniles may also eat zooplankton prey, which is more typical for 
pelagic larval percids (Rakes 2011, p. 1). This information suggests 
that loose sandy substrates suitable for ambush feeding behavior and 
healthy populations of benthic invertebrates and fish larvae for prey 
items are required to support the feeding requirements of the diamond 
darter.
    Like most other darters, the diamond darter depends on clean water 
and perennial stream flows to successfully complete its life cycle 
(Page 1983, pp. 160-170). Sufficient water quality and quantity is 
required to support normal reproduction, growth, and survival. Because 
so few diamond darters have been captured, there are insufficient data 
available to quantitatively define the standards for water quantity or 
quality that are suitable to support the species. However, some data 
are available from areas that are known to support the diamond darter 
or the closely related crystal darter that provide examples of suitable 
conditions.
    Water quantity, including depth and current velocity, are known to 
be important habitat characteristics that determine whether an area is 
suitable to support a specific species of fish (Osier 2005, p. 3). 
Sites where Crystallaria have been captured are consistently described 
as having moderate to strong velocities (Grandmaison et al. 2003, p. 4; 
Osier 2005, p. 15). Moderate to strong velocities contribute to the 
clean swept substrates and lack of silt commonly reported in documented 
crystal darter habitat (Osier 2005, p. 11). In the Elk River, the 
diamond darter has been collected from transition areas between riffles 
and pools at depths from 50 to 150 cm (20 to 59 in) and in moderate to 
strong velocities that are typically greater than 20 cm/sec (8 in/sec) 
(Osier 2005, p. 31). Similarly, the crystal darter has been described 
as generally inhabiting waters deeper than 60 cm (24 inches) with 
strong currents typically greater than 32 cm/sec (13 inch/sec) 
(Grandmaison et al. 2003, p. 4). Crystal darters were collected in 
Arkansas in water from 114 to 148 cm (45 to 58 in) deep with current 
velocities between 46 and 90 cm/sec (18 and 35 in/sec) (George et al. 
1996 in Grandmaison et al. 2003, p. 4). Many of the measurements were 
taken at base or low flows when it is easiest to conduct fish surveys. 
Current velocity, water depth, and stream discharge are interrelated 
and variable, dependent on seasonal and daily patterns of rainfall 
(Bain and Stevenson 1999, p. 77; Grandmaison et al. 2003, p. 4). 
Therefore, velocities and depths at suitable habitat sites may change 
over time, or diamond darters may also move to other locations within a 
stream as seasonal and daily velocity and depth conditions change.
    Water quality is also important to the persistence of the diamond 
darter. Specific water quality requirements (such as temperature, 
dissolved oxygen, pH, and conductivity) for the species have not been 
determined, but existing data provide some examples of conditions where 
Crystallaria were present. Diamond darters were successfully maintained 
in captivity when water temperatures did not go below 2 [deg]C (35.6 
[deg]F) in the winter or above 25 [deg]C (77 [deg]F) in the summer 
(Ruble et al. 2010, p. 4). In Arkansas, crystal darter capture areas 
had dissolved oxygen levels that ranged from 6.81 to 11.0 parts per 
million; pH levels from 5.7 to 6.6; specific conductivities from 175 to 
250 [mu]S/cm, and water temperatures from 14.5 to 26.8 [deg]C (58 to 80 
[deg]F) (George et al. 1996, p. 71). In general, optimal water quality 
conditions for warmwater fishes are characterized as having moderate 
stream temperatures, high dissolved oxygen concentrations, and near-
neutral pH levels. They are also characterized as lacking harmful 
levels of conductivity or pollutants including inorganic contaminants 
like iron, manganese, selenium, and cadmium; and organic contaminants 
such as human and animal waste products, pesticides and herbicides, 
fertilizers, and petroleum distillates (Winger 1981, pp. 36-38; Alabama 
Department of Environmental Management 1996, pp. 13-15; Maum and 
Moulton undated, pp. 1-2).
    Good water quality that is not degraded by inorganic or organic 
pollutants, low dissolved oxygen, or excessive conductivity is an 
important habitat component for the diamond darter.
    As described in the Summary of Factors Affecting the Species 
section above, impoundment of many rivers that historically supported 
the diamond darter has altered the quantity and flow of water in those 
rivers. This has reduced or eliminated riffle habitats, reduced current 
velocities, and increased the amount of fine particles in the substrate 
(Rinne et al. 2005, pp. 3-5, 432-433). Diamond darters have been 
extirpated from many areas as a result (Grandmaison et al. 2003, p. 18; 
Trautman 1981, p. 25). Excessive water withdrawals can also reduce 
current velocities, reduce water depth, increase temperatures, 
concentrate pollution levels, and result in deposition of fine 
particles in the substrate, making the areas less suitable to support 
the diamond darter (PSU 2010, p. 9; Freeman and Marcinek 2006, p. 445). 
An ample and unimpeded supply of flowing water that closely resembles 
natural peaks and lows typically provides a means of maintaining riffle 
habitats, 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, and is thus essential to the diamond darter.
    Based on the biological information and needs discussed above, we 
identify perennial streams containing riffle-pool transition areas with 
moderate velocities, seasonally moderated temperatures, and good water 
quality with healthy populations of benthic invertebrates and fish 
larvae for prey items and loose, sandy substrates to be physical or 
biological features essential to the conservation for the diamond 
darter.
Cover or Shelter
    Diamond darters and crystal darters typically have been captured in 
riffle-pool transition areas with predominately (greater than 20 
percent each) sand and gravel substrates (Osier 2005, pp. 51-52). 
Diamond darters will bury in these types of substrates for cover and 
shelter. Individuals observed in captivity were frequently seen either 
completely buried in the sand during the day or partially buried with 
only the head (eyes and top of the snout) out of the sand. However, 
individuals were often on top of the sand at night time (Welsh 2009c, 
p. 1). Burying occurred by the individual rising slightly up above the 
substrate and then plunging headfirst into the sand and using its tail 
motion to burrow (Welsh 2009c, p. 1). This type of burying behavior has 
also been reported in the crystal darter (Osier 2005, p. 11; 
NatureServe 2008, p. 1). Heavily embedded substrates may impede this 
behavior. Embeddedness is the degree that cobble or gravel substrates 
are impacted by being surrounded or covered by fine silty materials 
(Shipman 2000, p. 12). Embedded substrates are not easily dislodged, 
and would therefore be difficult for the diamond darter to burrow into 
for cover. Heavily embedded substrates can be the result of human 
activities increasing the amount of siltation occurring in the stream 
(Shipman 2000, p. 12). While diamond darter capture sites in the Elk 
River have had a sparse (25-50 percent) to low (less than 25 percent) 
degree of embeddedness, these sites were less embedded than other 
surrounding areas (Shipman 2000, p. 12; Welsh et al. 2004, p. 7; Osier 
2005, p. 57), and lower levels

[[Page 43926]]

of embeddedness are preferred by the diamond darter.
    Variability in the substrate and available habitat is also an 
important sheltering requirement for the diamond darter. Darters may 
shift to different habitat types due to changing environmental 
conditions such as high water or warm temperatures (Osier 2005, p. 7). 
Deeper or sheltered habitats may provide refuge during warm weather and 
it has been suggested that Crystallaria species may use deeper pools 
during the day (Osier 2005, p. 10). Substrate variety, such as the 
presence of boulders or woody materials, provides velocity shelters for 
young darters during high flows (Osier 2005, p. 4).
    Based on the biological information and needs discussed above, we 
identify riffle-pool transition areas with relatively sand and gravel 
substrates, as well as access to a variety of other substrate and 
habitat types, including pool habitats, to be physical or biological 
cover and shelter features essential to the conservation for the 
diamond darter.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Very little information is available on reproductive biology and 
early life history of the diamond darter (Welsh et al. 2008, p. 1; 
Ruble and Welsh 2010, p. 1), and to date, only one young-of-the-year of 
this species has been found in the wild. We have not been able to 
obtain specific information on this collection, which probably occurred 
in 2007 in the Elk River near the confluence with the Kanawha River, 
West Virginia (Cincotta 2009a, p. 1). However, research on reproductive 
biology of the species was recently initiated by Conservation Fisheries 
Inc. (CFI) in partnership with the USGS West Virginia Cooperative Fish 
and Wildlife Research Unit at West Virginia University (WVU). Five 
individual diamond darters, consisting of at least three females, one 
male, and one of undetermined sex, have been held in captivity at the 
CFI facility and were maintained in simulated stream conditions. Water 
temperature and daylight were also adjusted throughout the seasons to 
simulate natural fluctuations that would be experienced in the wild 
(Ruble and Welsh 2010, p. 2).
    Spawning began when water temperatures were consistently above 15 
[deg]C and ceased when temperatures reached 22 [deg]C (Ruble 2011b, p. 
2). Females showed signs of being gravid from late March to May (Ruble 
et al. 2010, p. 11-12). Both eggs and hatched larvae were observed in 
April (Ruble et al. 2010, p. 11-12; Ruble 2011, p. 1). Peak breeding 
time is likely mid-April when water temperatures range from 15 to 20 
[deg]C (59 to 68[emsp14] [deg]F) (Ruble et al. 2010, p. 12). Although 
incubation time is difficult to determine because most eggs that 
survived already showed considerable development, it is estimated that 
at 15 [deg]C (59[emsp14] [deg]F), hatch time is 7 to 9 days (Ruble et 
al. 2010, p. 11). Although eggs were produced in both years, no young 
survived and matured during either year (Ruble et al. 2010, pp. 11-12; 
Ruble 2011b, p. 1).
    Because no young have been successfully maintained in captivity and 
no studies of wild populations are available, we are not able to 
quantify the range of water quality conditions needed for successful 
reproduction. Factors that can impair egg viability include high 
temperatures, low oxygen levels, siltation, and other water quality 
conditions (Ruble 2011, p. 2). Inadequate water flow through the 
substrate or low oxygen levels within the substrate can lead to poor 
egg development or poor larval condition (Ruble 2011, p. 2).
    There is also some information available on reproduction of the 
crystal darter (Welsh et al. 2008, p. 1). In Arkansas, the reproductive 
season was from late January through mid-April, roughly correlating 
with early April in the Ohio River Basin (George et al. 1996, p. 75; 
Simon and Wallus 2006, p. 52). Evidence suggests that females are 
capable of multiple spawning events and producing multiple clutches of 
eggs in one season (George et al. 1996, p. 75). Spawning occurs in the 
spring when the crystal darters lay their eggs in side channel riffle 
habitats over sand and gravel substrates in moderate current. Adult 
darters do not guard their eggs (Simon and Wallus 2006, p. 56). Embryos 
develop in the clean interstitial spaces of the coarse substrate (Simon 
and Wallus 2006, p. 56). After hatching, the larvae are pelagic and 
drift within the water column (Osier 2005, p. 12; Simon and Wallus 
2006, p. 56; NatureServe 2008, p. 1).
    Based on the biological information and needs discussed above, we 
identify streams with naturally fluctuating and seasonally moderated 
water temperatures, high dissolved oxygen levels, and clean, relatively 
silt-free sand and gravel substrates to be physical or biological 
breeding, reproduction, or rearing of offspring features essential to 
the conservation for the diamond darter.
Habitats That Are Protected From Disturbance or Are Representative of 
the Historical, Geographical, and Ecological Distributions of a Species
    As described above, clean, stable substrates, good water quality, 
and healthy benthic invertebrate populations are habitat features 
essential to the diamond darter. Direct disturbance, alteration, or 
fill of instream habitat can degrade these essential features. 
Disturbance, alteration, and instream fill can kill or injure adult 
fish, young, or eggs; destabilize the substrates leading to increased 
sedimentation or erosion; and reduce the amount of available food and 
habitat to support fish populations. These impacts make the area less 
suitable for the fish such as the diamond darter (Reid and Anderson 
1999, pp. 235-245; Levesque and Dube 2007, pp. 396-402; Welsh 2009d, p. 
1; Penkal and Phillips 2011, pp. 6-7). Direct disturbance and instream 
construction can also increase substrate compaction and silt deposition 
within the direct impact area and downstream, reducing water flow 
through the substrate, and increasing substrate embeddedness (Reid and 
Anderson 1999, p. 243; Levesque and Dube 2007, pp. 396-397; Penkal and 
Phillips 2011, pp. 6-7). This can impede the normal burrowing behavior 
of the diamond darter required for successful foraging and shelter, 
degrade spawning habitat, result in the production of fewer and smaller 
eggs, and impair egg and larvae development (Reid and Anderson 1999, 
pp. 244-245; Levesque and Dube 2007, pp. 401-402). Intact riparian 
vegetation is also an important component of aquatic habitats that 
support the diamond darter. Darters are particularly susceptible to 
impacts associated with disturbance to riparian vegetation such as 
increased sedimentation and alteration of instream habitat 
characteristics (Jones et al. 1999, pp. 1461-1462; Pusey and Arthington 
2003, p. 1). Removal of riparian vegetation can lead to decreases in 
fish species, such as the diamond darter, that do not guard eggs or 
that are dependent on swift, shallow water that flows over relatively 
sediment-free substrates (Jones et al. 1999, p. 1462). Thus, avoiding 
disturbances to stream beds and banks is important to maintaining 
stable substrates, food availability, successful reproduction, and 
habitat suitability for the diamond darter.
    All current and historical capture locations of the diamond darter 
are from moderate to large, fourth to eighth order, warmwater streams 
within the Ohio River Watershed (Welsh 2008, p. 3;

[[Page 43927]]

SARP 2011, pp. 1-19). The species was historically distributed in at 
least four major drainages throughout the watershed and is now likely 
extirpated from Ohio, Kentucky, and Tennessee. The current range is 
restricted to a small segment of one river within West Virginia. 
Therefore, the current range of the species is not representative of 
the historical or geographical distribution of the species and not 
sufficient for the conservation of the diamond darter. Given the 
distribution is restricted to approximately 45 km (27.96 mi) within one 
river, the species is vulnerable to the threats of reduced fitness 
through genetic inbreeding, and extinction from a combination of 
cumulative effects or a single catastrophic event such as a toxic 
chemical spill (Gilpin and Soule 1986, pp. 23-33; Noss and Cooperrider 
1994, p. 61). In addition, because the current range is isolated from 
other suitable habitats due to the presence of dams and impoundments, 
the species has limited ability to naturally expand its current range 
and recolonize previously occupied habitats (Warren et al. 2000 in 
Grandmaison et al. 2003, p. 18). A species distribution that includes 
populations in more than one moderate to large river within the Ohio 
River watershed would provide some protection against these threats and 
would be more representative of the historical geographic distribution 
of the species.
    Based on the biological information and needs discussed above, we 
identify stable, undisturbed stream beds and banks, and ability for 
populations to be distributed in multiple moderate-to-large (fourth to 
eighth order) streams throughout the Ohio River watershed to be 
physical or biological features protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions that are essential to the conservation for the diamond 
darter.
Primary Constituent Elements for the Diamond Darter
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the diamond darter in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. 
Primary constituent elements are those specific elements of physical or 
biological features that provide for a species' life-history processes 
and 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 species' 
life-history processes, we determine that the primary constituent 
elements specific to the diamond darter are:
    (1) Primary Constituent Element 1--A series of connected riffle-
pool complexes with moderate velocities in moderate to large-sized 
(fourth to eighth order), geomorphically stable streams within the Ohio 
River watershed.
    (2) Primary Constituent Element 2--Stable, undisturbed bottom 
substrates composed of relatively silt-free, unembedded sand and 
gravel.
    (3) Primary Constituent Element 3--An instream flow regime 
(magnitude, frequency, duration, and seasonality of discharge over 
time) that is relatively unimpeded by impoundment or diversions such 
that there is minimal departure from a natural hydrograph.
    (4) Primary Constituent Element 4--Adequate water quality 
characterized by seasonally moderated temperatures, high dissolved 
oxygen levels, and moderate pH, and low levels of pollutants and 
siltation. Adequate water quality is defined as the quality necessary 
for normal behavior, growth, and viability of all life stages of the 
diamond darter.
    (5) Primary Constituent Element 5--A prey base of other fish larvae 
and benthic invertebrates including midge, caddisfly, and mayfly 
larvae.
    With this proposed designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the species, through the identification of the primary 
constituent elements sufficient to support the life-history processes 
of the species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The area we are proposing for designation as currently 
occupied critical habitat for the diamond darter is not under special 
management or protection provided by a legally operative management 
plan or agreement specific to conservation of the diamond darter and 
has not been designated as critical habitat for other species under the 
Act. This unit will require some level of management to address the 
current and future threats to the physical and biological features 
(PBFs) 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 primary constituent elements (PCEs) and may require special 
management considerations or protection. Some of these activities 
include, but are not limited to, those discussed in the ``Summary of 
Factors Affecting the Species,'' above. Other activities that may 
affect PCEs in the proposed critical habitat unit include those listed 
in the ``Available Conservation Measures'' section and include resource 
extraction (coal mining, timber harvests, natural gas and oil 
development activities); construction and maintenance projects; stream 
bottom disturbance from sewer, gas, and water lines; lack of adequate 
riparian buffers; and other sources of nonpoint-source pollution.
    Management activities that could ameliorate these threats include, 
but are not limited to: use of BMPs designed to reduce sedimentation, 
erosion, and stream bank destruction; development of alternatives that 
avoid and minimize streambed disturbances; implementation of 
regulations that control the amount and quality of point-source 
discharges; and reduction of other watershed and floodplain 
disturbances that release sediments or other pollutants. 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 Critical Habitat

    As required by section 4(b)(2)(A) of the Act, we use the best 
scientific 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. We 
are proposing to designate as critical habitat all habitat that is 
currently occupied by the species; that is, the lower Elk River. This 
one river reach constitutes the entire current range of the species. We 
are also proposing to designate a specific area that is not currently 
occupied by the diamond darter but was historically occupied, because 
we have determined this area (i.e., the Green River) is essential for 
the conservation of the diamond darter and designating only occupied 
habitat is not sufficient to conserve this species.

[[Page 43928]]

    For our evaluation of potential critical habitat, we reviewed 
available literature, reports, and field notes prepared by biologists, 
as well as historical and current survey results. We also spoke to 
fisheries experts and conservation professionals that are familiar with 
darters or the current status of aquatic systems within the current and 
historical range of the species.
    In order to identify currently occupied habitats, we delineated 
known capture sites and reviewed habitat assessments and mapping 
efforts that have been conducted on the Elk River. Known occurrences of 
the diamond darter are extremely localized, and the species can be 
difficult to locate. Because it is reasonably likely that this rare and 
cryptic species is present in suitable habitats outside the immediate 
locations of the known captures, we considered the entire reach between 
the uppermost and lowermost locations as occupied habitat. We also 
included some areas of the mainstem Elk River that have not been 
specifically surveyed for diamond darters but have been determined to 
have suitable habitat for the species based on diamond darter species-
specific habitat assessments (Osier 2005, pp. ii-50). These areas are 
contiguous with known capture sites, have similar habitat 
characteristics, have no barriers to dispersal, and are within general 
darter dispersal capabilities. In addition, river habitats are highly 
dependent upon upstream and downstream habitat conditions for their 
maintenance, so these contiguous areas upstream and downstream are 
critical to maintaining habitat conditions of known capture sites.
    Areas of the Elk River downstream of the proposed unit near the 
confluence with the Kanawha River that do not currently provide the 
PCEs required to support the species, and no longer have suitable 
habitat characteristics because they are affected by impoundment or 
routine navigation dredging, were not included. The downstream reach of 
the Elk River to the confluence with the Kanawha River is affected by 
impoundment from the Winfield Lock and Dam on the Kanawha River. It is 
also routinely dredged for commercial navigation by the ACOE.
    The portion of the Elk River upstream of the proposed unit may 
provide suitable habitat for the diamond darter, but we have no records 
of diamond darters being captured in this reach or diamond darter 
species-specific habitat assessments like there have been in the lower 
Elk River. The upper Elk River reach does contain the favorable general 
habitat characteristics of riffle-pool complexes with sand and gravel 
substrates, and there are no barriers to upstream fish movement 
(Service 2008, entire). However, only limited survey efforts and no 
diamond darter species-specific habitat assessments have been conducted 
that would allow us to further refine our assessment of whether this 
area contains any of the PCEs necessary to support the species. 
Additional survey efforts are being planned that may further define 
whether the upstream area is occupied by the diamond darter or which, 
if any, PCEs are present that may require special management 
considerations. As a result, we are not proposing to designate 
additional critical habitat upstream of King Shoals.
    We have not included Elk River tributaries as part of the proposed 
designation because we have no records of the diamond darter occurring 
in those locations, and there have been no species-specific habitat 
assessments in the tributaries documenting that these areas are 
suitable to support the species.
    We then considered whether occupied habitat was adequate for the 
conservation of the species. Currently occupied habitats of the diamond 
darter are highly localized and isolated, and are restricted to one 
reach of the Elk River. The range has been severely curtailed, and 
population size is small. Small isolated aquatic populations are 
subject to chance catastrophic events and to changes in human 
activities and land use practices that may result in their elimination. 
Threats to the diamond darter are imminent and are present throughout 
the entire range of the species. As described under Factor E, these 
threats are compounded by its limited distribution and isolation making 
the species extremely vulnerable to extinction; therefore, it is 
unlikely that currently occupied habitat is adequate for its 
conservation (Soule 1980, pp. 157-158; Noss and Cooperrider 1994, p. 
61; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). 
Larger, more dispersed populations can reduce the threat of extinction 
due to habitat fragmentation and isolation (Harris 1984, pp. 93-104; 
Noss and Cooperrider 1994, pp. 264-297; Warren et al. 2000 in 
Grandmaison et al. 2003, p. 18). For these reasons, we find that 
conservation of the diamond darter requires expanding its range into 
suitable, currently unoccupied portions of its historical habitat. The 
inclusion of essential, unoccupied areas will provide habitat for 
population reintroduction and will improve the species' status through 
added redundancy, resiliency, and representation.
    In order to identify areas of unoccupied habitat that should be 
designated as critical habitat, we focused on rivers that had 
historical records confirmed to be diamond darter through the 
examination of available museum specimens. For rivers that had more 
than one historical capture, approximate capture locations were mapped 
so that the minimal, previously occupied extent could be established. 
We then identified areas of contiguous habitat that still contained the 
habitat characteristics sufficient to support the life history of the 
species. Areas that no longer provided suitable habitat were impounded, 
or did not contain a series of connected riffle-pool complexes were 
eliminated from consideration. We then applied the following criteria 
to identify the unoccupied, potential critical habitat: (1) The reach 
supports fish species with habitat preferences similar to the diamond 
darter such as the shoal chub (Macrhybopsis hyostoma) and the 
streamline chub (Erimystax dissimilis); (2) the reach supports diverse 
populations of fish and mussels including other sensitive, rare, or 
threatened and endangered species; and (3) the reach has special 
management or protections in place such as being a designated wild 
river or exceptional use waters under State law. The reach that we 
identified in the Green River of Kentucky met all three criteria. These 
factors helped to confirm that the identified area had high-quality 
habitats sufficient to support the species and could be managed for the 
conservation of the species. No other areas were identified that met 
the full screening process.
    We delineated the upstream and downstream boundaries of the 
proposed unit on the Green River based on the following information. 
The Green River immediately downstream of Green River Lake (River Mile 
308.8 to 294.8) is excluded from the proposed critical habitat unit due 
to artificially variable flow, temperature, and dissolved oxygen 
conditions resulting from periodic discharges from Green River Dam. 
Fish community data collected between Greensburg and Green River Dam 
indicate a general trend of increasing species richness and abundance 
from Tebb's Bend (approximately 2.7 km [1.7 mi] below the dam) 
downstream to Roachville Ford (approximately 22.7 km [14.1 mi] below 
the dam). Also, some relatively intolerant benthic fish species present 
at Roachville Ford and other sites downstream within the Bioreserve are 
absent at Tebb's Bend, including mountain madtom (Noturus eleutherus), 
spotted darter (Etheostoma maculatum),

[[Page 43929]]

and Tippecanoe darter (E. Tippecanoe) (Thomas et al. 2004, p. 10). In 
contrast with Roachville Ford and other downstream sites, cobble and 
gravel substrates at Tebb's Bend are coated with a black substance 
characteristic of manganese and iron, which precipitates out and is 
deposited on the stream bed following hypolimnetic discharge from 
reservoirs (Thomas 2012, p. 1). Because fish community structure and 
habitat conditions at Roachville Ford are more similar to other 
locations in the Green River Bioreserve, this location (River Mile 
294.8) represents the upstream limit of the proposed critical habitat 
section, which continues downstream to Cave Island (River Mile 200.3) 
within Mammoth Cave National Park.
    Downstream of Cave Island, the Green River becomes affected by 
impoundment from the ACOE Lock and Dam 6. The lock and dam was 
constructed in 1906 and was disabled in 1950. Although the lock has 
been disabled and is becoming unstable, the dam still partially impedes 
water flow resulting in a system with slower, warmer water and a loss 
of riffle and shoal habitat types (Grubbs and Taylor 2004, p. 26; Olson 
2006, pp. 295-297). The delineation between the portions of the river 
affected by Lock and Dam 6 and those that retain free-flowing 
characteristics occurs distinctly at Cave Island (Grubbs and Taylor 
2004, pp. 19-26). There is a marked decrease in benthic 
macroinvertebrates that are intolerant of siltation below this point, 
which is attributable to slower current velocities and a lack of 
shallow riffles and associated course sediments (Grubbs and Taylor 
2004, p. 26). For these reasons, Cave Island was selected as the 
downstream limit of the critical habitat designation in this unit.
    Once we determined that the areas of Elk and Green Rivers met our 
criteria, we then used ArcGIS software and the National Hydrography 
Dataset (NHD) to delineate the specific river reach being proposed for 
diamond darter critical habitat. Areas proposed for diamond darter 
critical habitat include only Elk and Green River mainstem stream 
channels within the ordinary high-water line. We have not included Elk 
or Green River tributaries as part of the proposed designation because 
we have no records of the diamond darter occurring in those locations. 
We set the upstream and downstream limits of each critical habitat unit 
by identifying landmarks (islands, confluences, roadways, crossings, 
dams) that clearly delineated each river reach. Stream confluences are 
often used to delineate the boundaries of a unit for an aquatic species 
because the confluence of a tributary typically marks a significant 
change in the size or habitat characteristics of the stream. Stream 
confluences are logical and recognizable termini. When a named 
tributary was not available, or if another landmark provided a more 
recognizable boundary, another landmark was used. In the unit 
descriptions, distances between the upstream or downstream extent of a 
stream segment are given in kilometers (km) rounded to one decimal 
point and equivalent miles (mi). Distances for the Elk River were 
measured by tracing the course of the stream as depicted by the NHD. 
Distances for the Green River were measured using river miles as 
designated by the Kentucky Division of Water which were generated using 
the NHD.
    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 lack 
physical or biological features essential for the conservation of 
diamond darter. 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 or biological features in 
the adjacent critical habitat. The designation of critical habitat does 
not imply that lands or streams outside of critical habitat do not play 
an important role in the conservation of the diamond darter.
    We are proposing for designation of critical habitat lands and 
waters that we have determined are occupied at the time of listing and 
contain sufficient elements of physical or biological features to 
support life-history processes essential tor the conservation of the 
species and that may require special management considerations. This 
area of the Elk River in West Virginia is identified as Unit 1. We are 
also proposing to designate lands and waters outside of the 
geographical area occupied at the time of listing that we have 
determined are essential for the conservation of the diamond darter. 
This area of the Green River in Kentucky is identified as Unit 2. The 
two proposed units contain sufficient (more than one, but not all) 
elements of physical and biological features (PBFs) present to support 
diamond darter life-history processes, but may require special 
management considerations or protection to achieve the presence of all 
the identified PBFs.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R5-ES-2012-0045, on our Internet 
site at http://www.fws.gov/westvirginiafieldoffice/index.html, and at 
the field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing two units as critical habitat for the diamond 
darter. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the diamond darter. The areas we propose as critical 
habitat are: (1) The lower Elk River; and (2) the Green River. Table 2 
shows the occupancy of the units and ownership of the proposed 
designated areas for the diamond darter.

                                   Table 2--Occupancy and Ownership of Proposed Diamond Darter Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Federal, State,
                                                                                                     or other public       Private       Total length km
                  Unit                              Location                    Occupied?             ownership km      ownership km          (mi)
                                                                                                          (mi)              (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................  Lower Elk River............  yes........................     45.0 * (28.0)              none       45.0 (28.0)
2.......................................  Green River................  no.........................       16.3 (10.1)      135.8 (84.4)      152.1 (94.5)

[[Page 43930]]

 
    Total **............................  ...........................  ...........................  ................  ................     197.1 (122.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* As described below, this includes a combination of State ownership and easements. The State considers the easement area under their jurisdiction. This
  is the best information available to us for calculating river mile ownership in the Elk River. Therefore, we have included this habitat under public
  ownership.
** Totals may not sum due to rounding.

    We present brief descriptions of each unit and reasons why each 
unit meets the definition of critical habitat below. The critical 
habitat units include the stream channels of the rivers within the 
ordinary high-water line. As defined in 33 CFR 329.11, the ordinary 
high-water line on nontidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics 
such as a clear, natural water line impressed on the bank; 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 West Virginia, the 
State owns the bed and banks of streams between the ordinary low-water 
marks, and is vested with a public easement between the ordinary low-
water and high-water marks (George 1998, p. 461). The water is also 
under State jurisdiction (WVSC Sec.  22-26-3). In Kentucky, landowners 
own the land under streams (e.g., the stream channel or bottom) in the 
designated unit, but the water is under State jurisdiction.

Unit 1: Lower Elk River, Kanawha and Clay Counties, West Virginia

    Unit 1 represents the habitat supporting the only remaining 
occupied diamond darter population. This population could provide a 
source to repopulate other areas within the diamond darter's historical 
range. Unit 1 includes 45.0 km (28.0 mi) of the Elk River from the 
confluence with King Shoals Run near Wallback Wildlife Management Area 
downstream to the confluence with an unnamed tributary entering the Elk 
River on the right descending bank adjacent to Knollwood Drive in 
Charleston, West Virginia. As described above, all of the habitat 
within this unit is under public control or ownership (see Table 1 
above). The State of West Virginia owns or has a public easement on the 
streambed and banks of the Elk River up to the ordinary high-water mark 
(George 1998, p. 461). The water is also publically owned. The majority 
of lands adjacent to this unit are privately owned. There are two areas 
of public land within the watershed: The 3,996-ha (9,874-ac) Morris 
Creek Wildlife Management Area, which is leased and managed by the 
WVDNR (2007, p. 9), and Coonskin Park, an approximately 405-ha (1,000-
ac) park owned by Kanawha County (Kanawha County Parks and Recreation 
2008, p. 1).
    Live diamond darters have been documented at four sites within this 
unit, including at sites near Clendenin, Mink Shoals, Reamer Hill, and 
between Broad Run and Burke Branch. This unit contains space for 
individual and population growth and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; and sites for breeding, reproduction, 
or rearing (or development) of offspring, and is essential to the 
conservation of the species. Diamond darter habitat assessments have 
documented that this reach of the Elk River contains 28 riffle-pool 
transition areas with moderate currents and sand and gravel substrates 
that are suitable for the diamond darter (PCEs 1 and 2) (Osier 2005, p. 
34). There is connectivity between these habitats to provide access to 
various spawning, foraging, and resting sites and promote gene flow 
(PCE 1). This reach of the Elk River also has a natural flow regime 
that is relatively unimpeded by impoundment (PCE 3), and has healthy 
benthic macroinvertebrate populations (PCE 5) (WVDEP 1997, pp. 20-89). 
However, water quality within this unit is impaired due to high levels 
of fecal coliform bacteria and iron (PCE 4) (WVDEP 2010, p. 16).
    Within this unit, the diamond darter and its habitat may require 
special management considerations or protection to address threats from 
resource extraction (coal mining, timber harvests, natural gas and oil 
development activities); impoundment; water diversion or withdrawals; 
construction and maintenance projects; stream bottom disturbance from 
sewer, gas, and water line crossings; lack of adequate riparian 
buffers; sewage discharges, and nonpoint-source pollution. Special 
management to address water quality degradation is particularly 
important since prolonged water quality impairments can also affect the 
availability of relatively silt-free sand and gravel substrates (PCE 2) 
and healthy populations of fish larvae and benthic invertebrates that 
provide a prey base for the diamond darter (PCE 5).

Unit 2: Green River, Edmonson, Hart, and Green Counties, Kentucky

    Unit 2 represents the best remaining historically occupied habitat 
for future diamond darter reintroductions that will improve the 
species' redundancy, resiliency, and representation essential for its 
conservation. Unit 2 includes 152.1 km (94.5 mi) of the Green River 
from Roachville Ford near Greensburg (River Mile 294.8) downstream to 
the end of Cave Island in Mammoth Cave National Park (NP) (River Mile 
200.3). Approximately 16.3 km (10.1 mi) of this unit is publically 
owned (see Table 1 above) and is contained within the 20,750-ha 
(51,274.1-ac) Mammoth Cave NP. The remainder of the unit, 135.8 km 
(84.4 mi), is privately owned. With the exception of the lands owned by 
Mammoth Cave NP, the lands within the Green River watershed are also 
privately owned. Through the U.S. Department of Agriculture's (USDA) 
Conservation Reserve Program (CRP) and other conservation programs, the 
Nature Conservancy owns or has easements on approximately 794.4 ha 
(1,962.9 ac) within the watershed, either adjacent to or in close 
proximity to the river. In addition, Western Kentucky University owns 
or manages 1,300 ac (526.1 ha) along the Green River in Hart County as 
part of the Upper Green River Biological Preserve (Western Kentucky 
University 2012, p. 1). In Kentucky, landowners own the land under 
streams (e.g., the stream channel or bottom) in the designated units, 
but the water is under State jurisdiction.
    This unit is within the historical range of the species, but is not 
currently considered occupied. Between 1890 and 1929, diamond darters 
were recorded from three locations within this unit: Adjacent to Cave 
Island in Edmonson

[[Page 43931]]

County, and near Price Hole and Greensburg, in Green County.
    The Green River is a seventh-order warmwater stream with a total 
drainage area of 23,879.7 km\2\ (9,220 mi\2\). The largely free-flowing 
160.3-km (100-mile) section of the Green River from the Green River Dam 
downstream to its confluence with the Nolin River in Mammoth Cave NP is 
among the most significant aquatic systems in the United States in 
terms of aquatic species diversity and endemism and supports over 150 
species of fish and 70 species of freshwater mussels, including 7 
federally endangered mussel species, but no designated critical habitat 
(Thomas et al. 2004, p. 5; USDA 2006, p.16). Populations of fish 
species that have similar habitat preferences as the diamond darter, 
such as the shoal chub and streamline chub are present throughout this 
reach (Thomas 2012, p. 1).
    The entire reach of the Green River within this unit is designated 
by Kentucky as both Outstanding State Resource Waters and Exceptional 
Waters. Outstanding State Resource Waters are those surface waters 
designated by the Energy and Environment Cabinet as containing 
federally threatened and endangered species. Exceptional Waters are 
waterbodies whose quality exceeds that necessary to support propagation 
of fish, shellfish, wildlife, and recreation. These waters support 
excellent fish and macroinvertebrate communities (KYEEC 2012, p. 1). 
The entire reach of the river within Mammoth Cave NP, including the 
16.3 km (10.1 mi) that are proposed as critical habitat, is also 
designated as a Kentucky Wild River. These rivers have exceptional 
quality and aesthetic character and are designated by the State General 
Assembly in recognition of their unspoiled character, outstanding water 
quality, and natural characteristics (KYEEC 2012, p. 1). Each Wild 
River is actually a linear corridor encompassing all visible land on 
each side of the river up to a distance of 609.6 m (2,000 ft). In order 
to protect their features and quality, land-use changes are regulated 
by a permit system, and certain highly destructive land-use changes, 
such as strip mining and clear-cutting, are prohibited within corridor 
boundaries (KYEEC 2012, p.1).
    As described in the Criteria Used to Identify Critical Habitat 
section above, the inclusion of unoccupied areas is essential for the 
conservation of the diamond darter because it will provide currently 
suitable habitat for a population reintroduction that will allow 
expansion of diamond darter populations into historically occupied 
habitat adding to the species' redundancy, resiliency, and 
representation. In addition, this reach of the Green River is a 
moderate-to-large warmwater stream with a series of connected riffle-
pool complexes that is unaffected by impoundment (PCEs 1 and 3). The 
reach has good water quality and supports fish species that have 
similar habitat requirements including clean sand and gravel 
substrates, low levels of siltation, and healthy benthic 
macroinvertebrate populations for prey items (PCEs 2, 3, and 4).
    The reach of the Green River being proposed as critical habitat is 
the focus of many ongoing conservation efforts. The Nature Conservancy 
has designated this area as the Green River Bioreserve (Thomas et al. 
2004, p. 5) and the Kentucky Department of Fish and Wildlife Resources 
identified this portion of the Green River as a Priority Conservation 
Area in their Comprehensive Wildlife Conservation Strategy (USDA 2006, 
p. 35). Since 2001, more than 40,568.6 ha (100,000 ac) within the 
watershed have been enrolled in CRP (USDA 2010, p. 3). The goal of this 
program is to work with private landowners to greatly reduce sediments, 
nutrients, pesticides, and pathogens from agricultural sources that 
could have an adverse effect on the health of the Green River system 
(USDA 2006, p. 16). These organizations along with the Service, Western 
Kentucky University, Kentucky State University, the ACOE, private 
landowners, and other partners are also working towards conserving 
natural resources in this watershed by restoring riparian buffers, 
constructing fences to keep livestock out of the river, managing dam 
operations at the Green River Reservoir to more closely mimic natural 
discharges, and conducting long-term ecological research on fish and 
invertebrates (Hensley 2012, p. 1; TNC 2012, p. 1; WKU 2012, p.1). The 
feasibility of removing Lock and Dam 6 has also been 
evaluated, but no decision on this proposal has been made yet (Olson 
2006, pp. 295-297).
    Land use within this watershed is primarily agricultural or 
forested. There is also some oil and gas development within the 
watershed. Management may be needed to address resource extraction 
(timber harvests, natural gas and oil development activities); water 
discharges or withdrawals; construction and maintenance projects; 
stream bottom disturbance from sewer, gas, and water line crossings; 
lack of adequate riparian buffers; sedimentation, sewage discharges, 
and nonpoint-source pollution.

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 that is likely to 
jeopardize the continued 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 Circuit Courts 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 
ACOE 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 Endangered Species 
Act) or that involve some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
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

[[Page 43932]]

likely to adversely affect, listed species or critical habitat; or
    (2) A biological opinion for Federal actions that may affect and 
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 and/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 and/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 and/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 or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the diamond darter. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the diamond darter. 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, removal of 
riparian vegetation, road and bridge construction, discharge of mine 
waste or spoil, and other discharges 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 the 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 the diamond darter.
    (3) Actions that would significantly alter water chemistry or water 
quality (for example, dissolved oxygen, 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 toxic effluents into surface water or 
connected groundwater at a point source or by dispersed release 
(nonpoint source). These activities could alter water conditions beyond 
the tolerances of these fish 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 
embeddedness. Such activities could include, but are not limited to, 
certain construction projects, oil and gas development, mining, timber 
harvest, and other watershed and floodplain disturbances if they 
release sediments or nutrients into the water. These activities could 
eliminate or reduce habitats necessary for the growth and reproduction 
of these fish 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) 
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 [of the Interior 
(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 (DOD) lands with a completed 
INRMP

[[Page 43933]]

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, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
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 West Virginia 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.

Exclusion Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the DOD 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 
diamond darter are not owned or managed by the DOD, and therefore, we 
anticipate no impact to national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether landowners 
have developed any conservation plans or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion of lands from, critical 
habitat. In addition, we look at any tribal issues, and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this proposed rule, we have determined that there are 
currently no conservation plans or other management plans for the 
species, and the proposed designation does not include any tribal lands 
or trust resources. We anticipate no impact to tribal lands, 
partnerships, or management plans from this proposed critical habitat 
designation.
    Notwithstanding these decisions, as stated under ``Public 
Comments'' above, we are seeking specific comments on whether any areas 
we are proposing for designation should be excluded under section 
4(b)(2) of the Act.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of 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 received 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 West Virginia 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 Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

[[Page 43934]]

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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
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 the 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.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies, which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, an initial regulatory 
flexibility analysis is not required. However, though not necessarily 
required by the RFA, in our draft economic analysis for this proposal, 
we will consider and evaluate the potential effects to third parties 
that may be involved with consultations with Federal action agencies 
related to this action.

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 both of the proposed critical habitat units 
for the diamond darter. Both of the proposed units already support 
other federally endangered species, and the Service is already actively 
engaged in discussions with many gas companies to develop measures to 
avoid impacts to these habitats. Oil and gas exploration and 
development within the Green River unit is expected to be limited. 
There are at least six existing gas pipelines crossing the Elk River 
within the proposed unit, and others may be proposed in the future. 
Development and compliance with voluntary BMPs and avoidance measures 
such as the use of directional drilling or rerouting proposed 
transmission lines would be expected to minimize impacts of natural gas 
and oil exploration and development in the areas of proposed critical 
habitat. These types of measures are already being implemented by some 
oil and gas companies or other industries in the proposed units or in 
other areas.
    Coal mining occurs or could potentially occur in the Elk River 
proposed critical habitat unit for the diamond darter. Incidental take 
for listed species associated with surface coal mining activities is 
currently covered under a programmatic, nonjeopardy 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

[[Page 43935]]

(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, we do not believe this action is 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 will 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, or 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) We do not believe that this rule will significantly or uniquely 
affect small governments. The diamond darter only occurs in navigable 
waters within West Virginia in which the river bottom is owned by the 
State of West Virginia. The adjacent upland properties are owned by 
private entities. Within Kentucky, the lands being proposed for 
critical habitat are mostly owned by private landowners; a small 
portion is owned by Mammoth Cave National Park. None of these 
government entities fit the definition of ``small governmental 
jurisdiction.'' Small governments will be affected only to the extent 
that any programs having Federal funds, permits, or other authorized 
activities must ensure that their actions will not adversely affect the 
critical habitat. As such, a Small Government Agency Plan is not 
required. We will, however, further evaluate this issue as we conduct 
our economic analysis 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 diamond darter 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 not require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this designation of critical habitat for the diamond 
darter 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), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies in West Virginia and 
Kentucky. The designation of critical habitat in areas currently 
occupied by this fish may impose nominal additional regulatory 
restrictions to those currently in place for other listed species 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 or 
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 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 (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

[[Page 43936]]

property descriptions and identifies the elements of physical or 
biological features essential to the conservation of the diamond darter 
within the designated areas to assist the public in understanding the 
habitat needs of the species.

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.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as endangered or 
threatened under the Endangered Species Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).
    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 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 the 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 Presidential Memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands that were occupied by 
the diamond darter at the time of this proposal that contain the 
features essential for conservation of the species, and no tribal lands 
unoccupied by the diamond darter that are essential for the 
conservation of the species. Therefore, we are not proposing to 
designate critical habitat for the diamond darter on tribal lands.

References Cited

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

Authors

    The primary authors of this package are the staff members of the 
West Virginia Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.11(h) add the following to the List of Endangered 
and Threatened in alphabetical order under FISHES:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                   Vertebrate
-------------------------------------------------------                        population where                                 Critical       Special
                                                          Historic  range       endangered or        Status     When  listed     habitat        rules
           Common name               Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Darter, diamond..................  Crystallaria         U.S.A. (OH, WV, KY,  Entire.............  E                     TBD      17.95(e)            NA
                                    cincotta.            TN).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 43937]]

     3. In Sec.  17.95, amend paragraph (e) by adding an entry for 
``Diamond Darter (Crystallaria cincotta),'' in the same alphabetical 
order that the species appears in the table at Sec.  17.11(h), to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Diamond Darter (Crystallaria cincotta)
    (1) Critical habitat units are depicted for Kanawha and Clay 
Counties, West Virginia, and Edmonson, Hart, and Green Counties, 
Kentucky, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
diamond darter consist of five components:
    (i) A series of connected riffle-pool complexes with moderate 
velocities in moderate to large-sized (fourth to eighth order), 
geomorphically stable streams within the Ohio River watershed.
    (ii) Stable, undisturbed, bottom substrates composed of relatively 
silt-free, unembedded sand and gravel.
    (iii) An instream flow regime (magnitude, frequency, duration, and 
seasonality of discharge over time) that is relatively unimpeded by 
impoundment or diversions such that there is minimal departure from a 
natural hydrograph.
    (iv) Adequate water quality characterized by seasonally moderated 
temperatures, high dissolved oxygen levels, and moderate pH, and low 
levels of pollutants and siltation. Adequate water quality is defined 
as the quality necessary for normal behavior, growth, and viability of 
all life stages of the diamond darter.
    (v) A prey base of other fish larvae and benthic invertebrates 
including midge, caddisfly and mayfly 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 map units. Data layers defining map units were 
created with USGS NHD GIS data. ESRI's ArcGIS 10.1 software was used to 
determine longitude and latitude in decimal degrees for the river 
reaches. The projection used in mapping was Universal Transverse 
Mercator (UTM), NAD 83, Zone 16 North for the Green River, Kentucky, 
unit; and UTM, NAD 83, Zone 17 North for the Elk River, West Virginia, 
unit. The following data sources were referenced to identify features 
used to delineate the upstream and downstream reaches of critical 
habitat units: USGS 7.5' quadrangles and topographic maps, NHD data, 
2005 National Inventory of Dams, Kentucky Land Stewardship data, pool 
and shoal data on the Elk River, ESRI's Bing Maps Road. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the field office internet site (http://www.fws.gov/westvirginiafieldoffice/index.html), http://www.regulations.gov at 
Docket No. FWS-R5-ES-2012-0045 and at the Service's West Virginia Field 
Office. You may obtain field office location information by contacting 
one of the Service regional offices, the addresses of which are listed 
at 50 CFR 2.2.
    (5) Note: Index map of critical habitat locations for the diamond 
darter in West Virginia and Kentucky follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP26JY12.046

    (6) Unit 1: Lower Elk River, Kanawha and Clay Counties, West 
Virginia.
    (i) Unit 1 includes 45.0 km (28.0 mi) of the Elk River from the 
confluence with King Shoals Run near Wallback Wildlife Management Area 
downstream to the confluence with an unnamed tributary entering the Elk 
River on the right descending bank adjacent to Knollwood Drive in 
Charleston, West Virginia.
    (ii) Note: Map of Unit 1 (lower Elk River) follows:

[[Page 43938]]

[GRAPHIC] [TIFF OMITTED] TP26JY12.047

    (7) Unit 2: Green River, Edmonson, Hart, and Green Counties, 
Kentucky.
    (i) Unit 2 includes 152.1 km (94.5 mi) of the Green River from 
Roachville Ford near Greensburg (River Mile 294.8) downstream to the 
downstream end of Cave Island in Mammoth Cave National Park (River Mile 
200.3).
    (ii) Note: Map of Unit 2 (Green River) follows:
    [GRAPHIC] [TIFF OMITTED] TP26JY12.048
    

[[Page 43939]]


* * * * *

    Dated: July 13, 2012.
Michael Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
* * * * *
[FR Doc. 2012-17950 Filed 7-25-12; 8:45 am]
BILLING CODE 4310-55-C