[Federal Register Volume 78, Number 163 (Thursday, August 22, 2013)]
[Rules and Regulations]
[Pages 52364-52387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20449]



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Vol. 78

Thursday,

No. 163

August 22, 2013

Part V





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; Designation of Critical 
Habitat for the Diamond Darter (Crystallaria cincotta); Final Rule

  Federal Register / Vol. 78 , No. 163 / Thursday, August 22, 2013 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2013-0019; 4500030114]
RIN 1018-AZ40


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Diamond Darter (Crystallaria cincotta)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the diamond darter (Crystallaria cincotta), a 
small fish in West Virginia, under the Endangered Species Act (Act). In 
total, approximately 197.1 river kilometers (122.5 river miles) in 
Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green 
Counties, Kentucky, are being designated as critical habitat. The 
effect of this regulation is to designate critical habitat for the 
diamond darter under the Act.

DATES: This rule becomes effective on September 23, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the West Virginia Field Office. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, are available for public inspection, by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, West Virginia Field Office, 694 Beverly Pike, Elkins, West 
Virginia 26241. The Field Office can be reached by telephone 304-636-
6586 or by facsimile 304-636-7824.
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this critical habitat designation and are available at http://www.fws.gov/westvirginiafieldoffice, www.regulations.gov at Docket No. 
FWS-R5-ES-2013-0019, and at the West Virginia Field Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we developed for this critical habitat designation are 
also available at the U.S. Fish and Wildlife Service Web site and Field 
Office set out above, and may also be included at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: John Schmidt, Acting Field Supervisor, 
West Virginia Field Office (see ADDRESSES section). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the diamond darter. Under the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), we must 
designate critical habitat, to the maximum extent prudent and 
determinable, for any species we determine to be endangered or 
threatened. Designation of critical habitat can only be completed by 
issuing a rule.
    We listed the diamond darter as an endangered species on July 26, 
2013 (78 FR 45074). On July 26, 2012, we published in the Federal 
Register a proposed critical habitat designation for the diamond darter 
(77 FR 43906).
    This rule consists of: A final rule to designate critical habitat 
for the diamond darter. Section 4(b)(2) of the Act states that the 
Secretary shall designate 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.
    Here we are designating, in total, approximately 197.1 river 
kilometers (km) (122.5 river miles (mi)) as critical habitat for the 
species. The critical habitat is located in Kanawha and Clay Counties, 
West Virginia, and in Edmonson, Hart, and Green Counties, Kentucky.
    We have prepared an economic analysis of the designation of 
critical habitat. We have prepared an analysis of the economic impacts 
of the critical habitat designation and related factors. We announced 
the availability of the draft economic analysis (DEA) in the Federal 
Register on March 29, 2013 (78 FR 19172), allowing the public to 
provide comments on our analysis. We have incorporated the comments and 
have completed the final economic analysis (FEA) concurrently with this 
final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We asked knowledgeable individuals with the 
scientific expertise to review our technical assumptions, analysis, and 
whether we had used the best available data. These peer reviewers 
generally concurred with our methods and conclusions, and they provided 
additional information, clarifications, and suggestions to improve this 
final rule. The information we received from the peer review process is 
incorporated in this final revised designation. We also considered all 
comments and information received from the public during the comment 
periods and incorporated those comments, as appropriate, into this 
final rule.

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 and their taxonomic status. The lower the LPN, 
the higher the priority is for determining appropriate action for the 
species using our available resources. An LPN of 2 reflects that the 
threats to the diamond darter are both imminent and high in magnitude. 
It also reflects 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). On July 26, 2012 (77 FR 43906), we published a proposed rule 
to list the diamond darter as endangered. On July 26, 2013 (78 FR 
45074), we published a final rule to list the diamond darter as 
endangered.

Background

    The diamond darter is a small fish that is a member of the perch 
family (Percidae). The diamond darter is overall translucent and is a 
silvery white on the underside of the body and head. It has four wide, 
olive-brown saddles on the back and upper side (Welsh et al. 2008, p. 
1). Diamond darters are most active during the night and may stay 
partially buried in the stream substrates during the day (Welsh 2008, 
p. 10; Welsh 2009c, p. 1). Adult diamond darters are benthic 
invertivores, feeding primarily on stream bottom-dwelling invertebrates 
(NatureServe 2008, p. 8). The diamond darter was historically 
distributed throughout the Ohio River Basin including 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. The diamond darter has been extirpated from all these 
streams and is now known to occur only within the lower Elk River in 
West Virginia. More detailed information on the diamond

[[Page 52365]]

darter, including its taxonomy, species description, and current and 
historical distribution, and a summary of its life history and habitat 
can be found in the final listing rule published on July 26, 2013 (78 
FR 45074).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the diamond darter during two 
comment periods. The first comment period opened with the publication 
of the proposed rule (77 FR 43906) on July 26, 2012, and closed on 
September 25, 2012. In a notice published on March 29, 2013 (78 FR 
19172), we also requested comments on the proposed critical habitat 
designation and associated DEA during a comment period that opened 
March 29, 2013, and closed on April 29, 2013. We did not receive any 
requests for a public hearing. We also contacted appropriate Federal, 
State, and local agencies, scientific organizations, and other 
interested parties, and invited them to comment on the proposed rule 
and DEA during these comment periods.
    During the first comment period, we received 11 letters that 
provided comments specific to the proposed critical habitat 
designation. During the second comment period, we received 10 comment 
letters addressing the proposed critical habitat designation or the 
DEA. Comments received were grouped into general issues specifically 
relating to the proposed critical habitat designation for the diamond 
darter, and are addressed in the following summary and incorporated 
into the final rule as appropriate. Comments addressing only the 
proposed listing are addressed separately in the final listing rule (78 
FR 45074, July 26, 2013).

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from five knowledgeable 
individuals with scientific expertise on the diamond darter and its 
habitat, biological needs, and threats. We received individual 
responses from three of the peer reviewers. The response from one peer 
reviewer was incorporated into comments submitted by his employer, the 
West Virginia Division of Natural Resources (WVDNR). Those comments are 
addressed below under Comments from States.
    We reviewed all comments received from the peer reviewers for 
substantive and new information regarding critical habitat for the 
diamond darter. Two of the peer reviewers explicitly stated that: (1) 
They concurred with the proposed critical habitat designation; (2) the 
proposed rule appropriately designated the lower 45 km (28 mi) of the 
Elk River as critical habitat; and (3) scientific evidence provided in 
the proposed rule supported our conclusion that this reach of river is 
needed to protect the only remaining population of the diamond darter. 
One peer reviewer also commented that the reach of the Green River 
proposed for unoccupied critical habitat was a logical choice for 
designation, in that it was more likely than any other historical 
habitat to offer the potential for reestablishment of a second 
population of the diamond darter. Another peer reviewer suggested that 
additional areas should be designated as critical habitat.
    (1) Comment: The only known collection of a young diamond darter 
was at the extreme lower end of the proposed critical habitat on the 
Elk River in West Virginia. Although the extent of diamond darter 
larval drift is unknown, it may include portions of the Kanawha River 
below the mouth of the Elk River, which is not included in the proposed 
designation. The extent of potential downstream larval drift should be 
considered in the critical habitat designation. Additional research is 
needed to define how far larval drift occurs and what larvae are eating 
in the wild.
    Our Response: We concur that it is important to consider all the 
diamond darter's life stages, including the larval stage, when 
designating critical habitat. However, very little is known about the 
natural history of the larval and juvenile life stages of the diamond 
darter. As the commenter stated, the only known record of a young 
diamond darter captured in the wild was from benthic trawl surveys 
conducted in the Elk River somewhere near the confluence with the 
Kanawha River in West Virginia. Despite repeated requests to the 
researcher and his staff who captured the young diamond darter, we have 
been unable to more precisely determine the exact location of this 
capture or the habitat conditions at the capture location. 
Additionally, no scientific data is available on how long diamond 
darter larvae remain in a pelagic phase (drifting in open water) or how 
far they may drift downstream after they hatch. We are also unaware of 
any scientific data available as to where diamond darters breed in the 
Elk River. We concur that additional research is needed to quantify 
diamond darter larval and breeding requirements. However, we have used 
the best available scientific data to define the extent of these life 
history requirements. Section 3(5) of the Act requires the Service to 
specify the ``specific areas'' within the geographical area occupied by 
the species at the time of listing that are essential to the species' 
conservation or those areas outside the geographical areas occupied by 
the species at the time of listing that are essential for the species' 
conservation. Therefore, we have designated critical habitat based on 
the best available data at this time.
    In both our proposed and final critical habitat designation for the 
Elk River, we included some areas upstream and downstream of known 
capture locations that have suitable habitat for the species. These 
areas are contiguous with known and documented capture sites, have 
similar habitat characteristics, have no barriers to dispersal, and are 
within general darter dispersal capabilities. This should allow for 
some upstream migrations of breeding and spawning adult diamond 
darters, as well as some downstream migration of larvae. However, we do 
not have scientific data available to be able to determine whether the 
aforementioned capture location of the juvenile diamond darter is 
downstream of or within the critical habitat designation. The reach of 
the Elk River downstream of the designated critical habitat to the 
confluence with the Kanawha River is affected by impoundment from the 
Winfield Lock and Dam on the Kanawha River, and is dredged by the U.S. 
Army Corps of Engineers (ACOE). Therefore, this area was not designated 
as critical habitat because it did not contain the required physical 
and biological features (PBFs). We have incorporated additional 
discussion about the uncertainty surrounding the location of the 
juvenile diamond darter capture, as well information about the 
potential for larval drift, in the final rule. Please refer to our 
response to comment 1 in the final listing rule (78 FR 45074, 
July 26, 2013) for more information on this topic.
    We also note in the final critical habitat rule that habitat is 
dynamic, and species may move from one area to another over time. We 
recognize that critical habitat designated at a particular point in 
time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be needed for 
recovery of the species. Similarly, critical habitat designations made 
on the basis of the best available scientific data at the time of 
designation will not control the direction and substance of future

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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. When 
additional information becomes available about diamond darter larval 
requirements, or if the location of the previous capture can be more 
precisely determined, we will fully consider that information during 
future diamond darter consultation and recovery efforts, and may revise 
the critical habitat designation, if necessary.
    (2) Comment: The Service should consider designating the lower 
free-flowing portion of the Big South Fork of the Cumberland River as 
unoccupied critical habitat, similar to the Green River. Although the 
Big South Fork of the Cumberland River may not be quite as high in 
quality as the Green River, it meets the criteria for designation as 
cited, particularly in supporting rare and sensitive species, including 
streamline chubs (Erimystax dissimilis) and tuxedo darters (Etheostoma 
lemniscatum).
    Our Response: We concur that the lower portions of the Big South 
Fork of the Cumberland River currently have suitable habitat for the 
diamond darter in that the river is free-flowing and has riffle-pool 
complexes and areas with suitable substrates. It also supports other 
rare species with similar life-history requirements, and the National 
Park Service provides some protections. Based on this information, we 
evaluated this area for inclusion in the designation as unoccupied 
critical habitat. To be included in the unoccupied critical habitat 
designation, an area must have historical darter occurrences that have 
been confirmed to be diamond darter. Confirmation of the historical 
occurrences is completed through examination of available museum 
specimens.
    One specimen of a Crystallaria species was known to be collected 
from the Big South Fork of the Cumberland River around 1870, but very 
little information is available about the actual specimen. We note that 
it was one of the earliest collections of any Crystallaria species, and 
occurred at a time when many fishes from the Ohio River Basin were 
first being captured, identified, and described. Cope, who originally 
collected this specimen, did not formally publish any records of his 
Crystallaria capture in the Big South Fork of the Cumberland River 
(Comisky and Etnier 1972, p. 143). The first reference to this specimen 
occurred in 1906 when Fowler began curating and cataloguing Cope's 
collection of percid specimens after his death (Fowler 1906, p. 524). 
In a subsequent taxonomic review of fish from Michigan, Fowler 
determined that some of Cope's other Crystallaria specimens had been 
incorrectly identified (Fowler 1918, pp. 48-49). This is not surprising 
given the advances in fish taxonomy that occurred between 1870 and 
1918. Thus, it is possible that Cope's Big South Fork of the Cumberland 
River Crystallaria specimen was also incorrectly identified. However, 
we searched published literature and found no records of Fowler or any 
subsequent taxonomists confirming or refuting Cope's original 
identification of this specimen, or any written descriptions or 
illustrations of this specimen that would have allowed us to verify its 
accuracy. Additionally, we have been unable to locate this specimen.
    In 1918, Fowler noted that some of Cope's specimens were no longer 
extant, and that some were in poor preservation (Fowler 1918, pp. 2-
51). The Big South Fork of the Cumberland River Crystallaria specimen 
is apparently one of those specimens that was lost or degraded since 
its original collection, and is no longer extant. Therefore, it cannot 
be inspected and verified. Conversely, museum specimens from surveys 
conducted in 1890 in other portions of the Cumberland River watershed 
are extant and have been independently reviewed and verified to be the 
diamond darter (Welsh and Wood 2008, p. 6). However, as described 
above, we do not have confirmed historical records that the diamond 
darter existed in the Big South Fork of the Cumberland River. 
Therefore, the Big South Fork of the Cumberland River did not meet the 
inclusion criteria for unoccupied critical habitat. However, excluding 
this area from critical habitat designation does not mean that it may 
not be important or appropriate for future diamond darter recovery 
efforts.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' We 
received comments from two State agencies, the WVDNR and the West 
Virginia Department of Environmental Protection (WVDEP). Comments 
received from the State regarding the proposal to designate critical 
habitat are summarized below, followed by our responses.
    The WVDNR stated that the Service provided an excellent evaluation 
in support of the proposed primary constituent elements (PCEs), and 
concurred that these components are present in the Elk River and 
necessary for the continued success of the diamond darter. The WVDNR 
also concurred with the proposed designation of the 45-km (28-mi) reach 
of the Elk River as critical habitat. The agency confirmed that this 
reach of the Elk River supported all the PCEs, and further commented 
that its survey data from Elk River tributaries supported our 
conclusion that the diamond darter rarely or never uses these tributary 
areas. Although the agency commented that the Service correctly 
proposed to designate critical habitat in the Green River based on the 
criteria provided, the agency deferred any additional comments on that 
portion of the diamond darter's habitat to the Kentucky Department of 
Fish and Wildlife Resources (KYDFWR). The KYDFWR did not formally 
comment on the proposed rule. The WVDEP provided two substantive 
comments regarding the proposed critical habitat, as detailed below.
    (3) Comment: The WVDEP asserted that the primary cause of the 
diamond darter's decline was habitat loss and isolation of the 
population through the historical impoundment of streams the species 
inhabited. The agency therefore suggested that PCE 3, which emphasizes 
the darter's need for flows unimpeded by impoundment, should be the 
first priority PCE considered essential to the diamond darter's 
persistence.
    Our Response: We concur that impoundment was one of the most direct 
and dramatic historical causes of diamond darter habitat loss. Water 
quality degradation and siltation also played key roles. See our 
response to comment 4 in the final listing rule (78 FR 45074, 
July 26, 2013) for more information regarding the role of impoundment 
and other factors in the decline and extirpation of diamond darter 
populations. While we agree that impoundment is an important cause of 
diamond darter habitat loss, we do not concur that the order of the 
PCEs should be changed. The diamond darter requires all the listed PCEs 
to survive and recover, and the PCEs are not listed in order of 
priority. Rather, we have listed the PCEs in an order that supports the 
species' basic life-history requirements. To support the diamond 
darter, there must first be a stream located in the historical range of 
the species. The stream must also be of the correct size (stream order) 
and have the correct substrates. For example, small headwater streams, 
or naturally slow-moving streams with predominately silt substrates, 
even if unimpounded, would not support the diamond darter.

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Therefore, our PCEs describe first the type and location of stream 
habitat the diamond darter requires, second the type of substrate, and 
third the need for relatively natural flows unimpeded by impoundment. 
We have thus retained the original order of the PCEs.
    (4) Comment: The WVDEP commented that the concept of embeddedness 
described in the proposed rule is inconsistent with the species' 
habitat requirements. The agency stated that, because the diamond 
darter occupies habitats with ample sand, some embeddedness of the 
larger particles in these areas is expected and quite necessary. The 
agency further suggested that we clarify the concepts of siltation 
versus sedimentation since it would appear that the diamond darter is 
susceptible to the effects of siltation, which is the accumulation of 
fines, or particles smaller than sand, while being dependent upon a 
relative abundance of sand to fulfill life-history functions. The 
agency suggested that PCE 2 should be clarified with regard to these 
two issues.
    Our Response: We concur with the WVDEP that the diamond darter is 
susceptible to the effects of siltation, which is the accumulation of 
fines, or particles smaller than sand, while being dependent upon a 
relative abundance of natural sand to fulfill life-history functions. 
We have, therefore, reviewed our use of the terms ``siltation'' and 
``sedimentation'' in the final critical habitat rule and clarified that 
the diamond darter requires substrates that are not embedded with fine 
silts or clays. See our response to comment 5 in the final 
listing rule (78 FR 45074, July 26, 2013) for additional information on 
our definitions of the terms ``substrate embeddedness,'' ``siltation,'' 
and ``sedimentation'' and on the relationship of these terms to the 
diamond darter's life-history requirements.

Public Comments

    We received comments addressing the proposed critical habitat 
designation from eight organizations and one individual. Four 
organizations, the West Virginia Chamber of Commerce (WVCC), the West 
Virginia Oil and Natural Gas Association (WVONGA), the West Virginia 
Coal Association (WVCA), and the West Virginia Forestry Association 
(WVFA), were critical of the proposed rule and provided substantive 
comments in that regard. Each of these four organizations submitted 
comments during each of the two comment periods. Four other 
organizations, The Nature Conservancy (TNC), West Virginia Rivers 
Coalition (WVRC), Center for Biological Diversity (CBD), and Kentucky 
Waterways Alliance (KYWA), and the one individual were strongly 
supportive of the proposed critical habitat designation. The KYWA 
confirmed that the Green River contains the PCEs required to support 
the diamond darter, including connected riffle-pool complex habitats 
that are unaffected by any impoundments with clean sand and gravel 
substrates and healthy and diverse benthic macroinvertebrate prey 
populations. The KYWA also confirmed the Green River has a number of 
protective use designations that provide protections consistent with 
the recovery of the diamond darter.
    The CBD, on behalf of itself and 16 additional organizations, 
submitted comments in support of the proposed critical habitat 
designation, reiterated information presented in the proposed rule, and 
suggested that the designation of unoccupied critical habitat in 
Kentucky will greatly increase the diamond darter's potential for 
survival and recovery. In addition, approximately 4,840 individuals 
associated with CBD provided form letters supporting the proposed 
critical habitat that reiterated the comments provided by CBD. One 
individual, the WVRC, the CBD, and associated individuals responding by 
form letter, urged the Service to act quickly to finalize the critical 
habitat designation, with the WVRC suggesting that protection is needed 
now while there still may be a viable breeding population of diamond 
darters. Additional substantive comments from the eight organizations 
are detailed below.
    (5) Comment: The KYWA provided additional supporting information on 
the current and historical biological diversity of the Green River. The 
organization noted that the diamond darter is one of the native fish 
species currently missing from the system, and that darters play an 
important role in aquatic systems as indicators of good water quality 
and diversity. The organization suggested that reintroducing the 
diamond darter into the river would create a more complete aquatic 
ecosystem, would help to sustain other populations of fish, such as 
muskellunge (Esox masquinongy) or bass (Micropterus spp.), and 
contribute to a healthy robust native ecosystem. The KYWA concluded 
that the organization strongly supports all efforts to fully restore 
and protect all native species to the Green River.
    Our Response: We appreciate the additional information on 
historical biodiversity in the Green River, and we have incorporated 
this information into the final rule, as appropriate. We also concur 
with the assessment of potential benefits of restoring healthy intact 
aquatic ecosystems.
    (6) Comment: The KYWA and TNC described numerous ongoing efforts 
that the organizations and their partners have conducted to protect and 
enhance the Green River and to educate the public on the river's 
biodiversity. These efforts included river cleanups, the addition of 
lands to Western Kentucky University's (WKU) Upper Green River 
Biological Reserve, and the establishment of a Watershed Watch program 
under which volunteers are trained to monitor the biological conditions 
in the river. The organization further expressed a willingness to work 
with the Service and appropriate State agencies on restoration of 
diamond darter populations in the Green River.
    Our Response: The KYWA and TNC have acted proactively to protect 
and restore the Green River and its aquatic species. The Service 
appreciates these efforts and the offer to assist in diamond darter 
recovery. We recognize that partnerships are essential for the 
conservation of aquatic habitats and the diamond darter, and we look 
forward to continuing to work with these organizations on Green River 
restoration and diamond darter conservation.
    (7) Comment: The WVCC, WVCA, WVFA, and WVONGA all commented that 
data are insufficient to quantitatively define specific water quality 
standards required by the diamond darter. These organizations noted 
that conductivity was described as a threat to the diamond darter in 
the proposed listing rule even though an appropriate conductivity range 
for the diamond darter has not yet been established and scientific 
studies have not conclusively shown that elevated conductivity causes 
harm to fish species. These organizations stated that, if the final 
rule suggests ideal water quality conditions for parameters such as 
conductivity, these parameters should be based on observations where 
the diamond darter population currently exists in the Elk River or on 
direct testing on the diamond darter. Finally, the organizations 
recommend that the use of the crystal darter (Crystallaria asprella) as 
a surrogate for the diamond darter to establish water quality 
parameters is not justified because the ranges of these two species do 
not overlap and the two species are genetically distinct.
    Our Response: See our responses to comments 12 and 
13 in the final listing rule (78 FR 45074, July 26, 2013) for 
a detailed response to the threat that conductivity poses to the 
diamond

[[Page 52368]]

darter, and our approach to describing appropriate water quality 
parameters for the diamond darter, including using data from surrogate 
species.
    (8) Comment: The WVCC, WVCA, WVFA, and WVONGA all suggested that 
the DEA inappropriately fails to consider the potential economic 
effects on Kanawha County, and that our justification that the county 
``does not meet the definition of small government'' is insufficient. 
They specifically mention a sentence on page ES-9 of the DEA.
    Our Response: As described in Section 4.2.1 of the DEA, the 
Economic Analysis takes into account all economic impacts that occur 
within the study area, such as impacts to coal mining in Unit 1. The 
study area includes Kanawha County; therefore, the economic impacts to 
the County are analyzed in the DEA. The DEA sentence the commenter 
mentioned refers specifically to the DEA's analysis of economic impacts 
on small entities, including governmental entities. The DEA appendix 
(see page A-2) further clarifies the definition of small entities under 
the Small Business Regulatory Enforcement Flexibility Act (SBREFA; 5 
U.S.C. 801 et seq.) as ``small governmental jurisdictions as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts with a population of less than 
50,000.'' We note that Kanawha County has a population of 192,179, 
which is more than the 50,000 population-level threshold. Therefore, 
Kanawha County, by definition, cannot be considered ``small'' under the 
SBREFA. However, Chapter 4 of the DEA, in particular Exhibit 4-1, 
presents the overall economic impacts in the Unit 1 Study Area, which 
includes all impacts within Kanawha and Clay Counties, West Virginia.
    (9) Comment: The WVCC, WVONGA, and WVCA disagreed with the DEA's 
assertion that, if time delay impacts to the resource extraction 
industry were to occur, the impacts would be attributable to the 
listing of the diamond darter and co-occurring mussel species rather 
than to the designation of the diamond darter's proposed critical 
habitat. The organizations also stated that the DEA fails to quantify 
the likely impacts to the regulated community, particularly relative to 
the coal mining and oil and natural gas production and manufacturing 
industries.
    Our Response: Page 4-2 of the DEA notes that approximately 66 
consultations related to coal mining and natural gas production 
activities are anticipated to occur over the next 20 years (a rate of 
approximately 3 consultations annually), and that some of these 
consultations may result in time delays. In addition, section 2.3.2 
presents the DEA's methodology for identifying incremental impacts, 
which relies partly upon the Service's Incremental Effects Memorandum 
for the Economic Analysis for the Proposed Rule to Designate Critical 
Habitat for the Diamond Darter (Incremental Memorandum) and which is 
provided as DEA Appendix D. The Incremental Memorandum explains that 
areas occupied by the diamond darter or other co-occurring listed 
species are unlikely to incur incremental impacts (those associated 
solely with a critical habitat designation) because ``there is a close 
relationship between the health of the diamond darter and the health of 
its habitat.'' This means that the conservation measures needed to 
avoid adverse modification of critical habitat would typically already 
be included in any measures required to avoid jeopardizing the 
continued existence of the diamond darter. In other words, there would 
be no substantial time delays in evaluating a project that has the 
potential to affect critical habitat versus a project that has the 
potential to affect the diamond darter.
    As described in section 3.2.1, because consultations related to 
coal mining and natural gas production would fall within occupied 
habitat, the DEA finds that these consultations and any related time 
delays would result from the listing of the diamond darter and the 
presence of co-occurring listed mussel species, regardless of the 
designation of diamond darter critical habitat. Based on the case law 
and guidance from the U.S. Office of Management and Budget (OMB) 
reviewed in Chapter 2 of the DEA, the DEA quantifies only those 
economic impacts that are specifically attributable solely to the 
designation of critical habitat, and provides a narrative description 
of other forecast impacts that may stem from diamond darter 
conservation efforts requested under the Act's jeopardy standard. 
Accordingly, the DEA qualitatively describes, but does not quantify, 
these potential impacts to coal mining and natural gas production 
activities.
    (10) Comment: The WVONGA and the WVCC stated that oil and natural 
gas exploration and drilling have surged within the Study Area. Based 
on this anticipated increased activity, the organizations expressed 
concern that the DEA fails to consider future impacts of the proposed 
critical habitat designation to oil and natural gas exploration and 
drilling, including the adverse outcome of increased regulatory actions 
that will impact the construction of stream crossings. The 
organizations did not provide detailed information on trends within the 
oil and natural gas industry to support the comment.
    Our Response: As discussed in section 3.2.1 of the DEA, there is 
considerable uncertainty about future demand levels for oil and natural 
gas activity within the study area. If reliable projections of the 
demand for oil and natural gas were available, we would incorporate 
this information into the economic analysis. When drafting the DEA, we 
contacted WVONGA to obtain more detailed or reliable projections of the 
demand for oil and gas in the Study Area. However, WVONGA did not 
respond to our requests for information. In addition, the comment 
letters provided on the DEA did not provide any detailed information 
that would allow us to estimate future trends in the demand for oil and 
gas within the Study Area. Therefore, absent such projections, we rely 
on historical permitting data to forecast future levels of economic 
activity related to oil and natural gas exploration and drilling within 
the Study Area.
    (11) Comment: The WVCC, WVCA, WVONGA, and WVFA stated that the DEA 
does not appropriately consider all economic impacts on small business 
entities. The organizations disagreed with the Service's amended 
determination certifying that, ``if promulgated, the proposed critical 
habitat designation would not have a significant economic impact on a 
substantial number of small business entities. Therefore, an initial 
regulatory flexibility analysis is not required.'' The organizations 
further stated that the amended determination should be reconsidered to 
adequately account for the complete economic impact on small businesses 
as required under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.), as amended by SBREFA. The WVFA also expressed concern that small 
businesses do not have sufficient unfilled working hours to manage the 
consultation process that would be contracted to third party vendors.
    Our Response: Section 7 of the Act is the regulatory mechanism 
requiring Federal agencies, in consultation with the Service, to insure 
that any action authorized, funded, or carried out by the agency is not 
likely to jeopardize the continued existence of any threatened or 
endangered species or result in the destruction or adverse modification 
of critical habitat. Therefore, as discussed in our proposed rule and 
notice of availability of the DEA, it is the Service's interpretation 
of the definition of a ``directly regulated entity'' that only

[[Page 52369]]

Federal action agencies are subject to a regulatory requirement (i.e., 
to avoid adverse modification) as the result of the critical habitat 
designation. Federal agencies are not considered small entities under 
the RFA as amended by SBREFA. Accordingly, the Service has determined 
that small businesses are not directly regulated by this designation of 
critical habitat. Therefore, the Service may certify that the proposed 
critical habitat rule will not have a significant economic impact on a 
substantial number of small entities, and thus no additional analysis 
is required.
    However, we acknowledge that in some cases third-party proponents 
of the action subject to Federal permitting or funding may participate 
in a section 7 consultation and thus may be indirectly affected. While 
these entities are not directly regulated, the DEA provides information 
about the potential number of third parties participating in section 7 
consultations on an annual basis and the associated per-consultation 
cost. This information is included to ensure a robust examination of 
the effects of the proposed diamond darter critical habitat. For 
example, the DEA estimates that 258 small entities may be affected over 
the next 20 years. This equates to an average of approximately 13 
entities being affected per year. The large majority of these affected 
entities (190 or 82 percent) would be agriculture and timbering 
entities in Kentucky that would be receiving assistance through the 
Natural Resources Conservation Service (NRCS). We note that 
participation in NRCS assistance programs is voluntary. Potentially 
affected small timbering and agricultural entities could choose not to 
participate in these programs and thus not be affected by the critical 
habitat designation.
    In addition, NRCS assistance programs are typically designed to 
restore ecological conditions and improve land management practices. 
Funded activities include assistance to landowners to install riparian 
buffers, improve water quality, and control nutrient and sediment 
inputs into streams. Most of these activities would provide ecological 
benefits to the diamond darter while also providing economic benefits 
to the small entity that is receiving Federal assistance. Finally, NRCS 
comments on the combined proposed listing and critical habitat rule 
(NRCS 2013) indicated a desire to develop programmatic measures to 
avoid and minimize any potential adverse effects to the diamond darter 
in Kentucky, similar to the approach that was recently completed in 
West Virginia. The development of programmatic measures would reduce 
regulatory uncertainty and the costs associated with consultation for 
both the Federal agencies and the 190 potentially affected small 
entities below the level currently estimated in the DEA.
    The remaining 68 potentially affected small entities would be 
associated with resource extraction and other instream work. This 
equates to an average of fewer than four affected small entities per 
year. The DEA further estimates costs associated with each of these 
activity types. The DEA Exhibit A-1 estimates incremental costs of 
between $880 and $8,800 per entity; this cost is an impact of less than 
0.1 percent to each entity's annual revenue. While we recognize that 
each of the four entities affected per year may consider the cost to be 
significant, the Service does not consider the total number of entities 
and the associated potential costs to be substantial or significant, 
respectively, under SBREFA. Based on our interpretation of the directly 
regulated entities under the RFA and the evaluation of potential 
impacts to third parties that may be affected by this designation, the 
Service concludes that the designation of diamond darter critical 
habitat as proposed will not have a significant economic impact on a 
substantial number of small entities.
    (12) Comment: The CBD suggested that the Service should consider 
the economic benefits of protecting habitat for the diamond darter, 
including ecosystem services, the protection of clean water and the 
reduced cost of water treatment for drinking supplies, and the 
environmental justice benefits of protecting human health from mining. 
The CBD further stated that the Elk River is one of the most biodiverse 
rivers in West Virginia and the Service should also consider the 
economic benefits of preserving the State's natural heritage.
    Our Response: Section 4.4 of the DEA discusses the economic 
benefits of critical habitat designation. Quantifying and monetizing 
the conservation and ancillary benefits associated with the proposed 
critical habitat designation requires information on the incremental 
change in the probability of diamond darter conservation that is 
expected to result solely from the critical habitat designation. As 
described in DEA Chapters 3 and 4, given the baseline protections 
provided to the species (including the proposed listing of the diamond 
darter), and the characteristics of the specific projects anticipated 
to occur over the 20-year timeframe of the analysis, the designation of 
critical habitat is unlikely to result in future project modifications. 
Based on the case law and guidance from OMB reviewed in Chapter 2, the 
DEA quantifies only those economic effects (both benefits and costs) 
that are specifically attributable solely to the designation of 
critical habitat. In addition, the CBD did not provide information that 
would assist the Service in quantifying such benefits. As a result, 
economic or environmental justice benefits are not expected to occur as 
a result of the critical habitat designation and are, therefore, not 
quantified in the DEA.

Summary of Changes From the Proposed Rule

    This final rule incorporates appropriate changes to our proposed 
critical habitat based on the comments we received, as discussed above, 
and newly available scientific data. Substantive changes include new or 
additional information on: (1) The potential space required to provide 
for larval drift; (2) current conservation efforts conducted by private 
organizations in the Green River; and (3) recent survey efforts on the 
distribution of the diamond darter in the Elk River. We also clarify 
(1) that we excluded areas from designation as unoccupied critical 
habitat if extant museum specimens were not available that could be 
independently verified as the diamond darter; (2) the text of PCE 2 and 
associated discussions to indicate that the diamond darter requires 
stream substrates that are not embedded with and are relatively free 
from silts and clays, while being dependent on a natural abundance of 
sand in the substrate; and (3) the use of the terms ``siltation'' and 
``sedimentation.'' Although the discussion of our PCEs is somewhat 
different from that in our proposed rule, the analysis and our 
conclusions are a logical outgrowth of the proposed rule commenting 
process, and none of the information changed our determination of 
critical habitat for the diamond darter.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and

[[Page 52370]]

    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided 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 or biological features within an area, we focus on the 
principal biological or physical constituent elements (PCEs such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. The 
PCEs are those specific elements of the 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. 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 and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas 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. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be 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 of the Act's prohibitions 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 data at the time of designation will not control the 
direction and substance of future recovery plans, HCPs, or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.
    In addition, we recognize that climate change may cause changes in 
the arrangement of occupied habitat and stream reaches. The synergistic 
interaction between climate change and habitat fragmentation results in 
a greater threat to biodiversity than climate change alone (Hannah and 
Lovejoy 2003, p. 4). Current climate change predictions for the central 
Appalachians indicate that aquatic habitats will be subject to 
increased temperatures and 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 have either natural or anthropomorphic barriers 
to movement, such as the dams that fragment and isolate diamond

[[Page 52371]]

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 determination of critical habitat by delineating 
two units that are representative of the range of habitats currently 
and previously occupied by the species.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the diamond darter from studies of this species' habitat, ecology, 
and life history as described in the Critical Habitat section of the 
proposed rule to list the diamond darter as endangered and designate 
critical habitat published in the Federal Register on July 26, 2012 (77 
FR 43906), and in the information presented below. Additional 
information can be found in the final listing rule published in the 
Federal Register on July 26, 2013 (78 FR 45074). Because diamond 
darters are rare, very little information is available with which to 
quantitatively define the optimal conditions or range of suitable 
conditions for a specific biological or physical feature needed by the 
species. When species-specific information is limited, we rely on 
information from the crystal darter and other similar darter species. 
Because the crystal darter is in the same genus, shares many similar 
life-history traits, and was previously considered the same species as 
the diamond darter, information on this species can reasonably be used 
to suggest factors or conditions that may also be important to the 
diamond darter. All of the available information is sufficient for us 
to qualitatively discuss the PBFs needed to support the species. Based 
on this review, we have determined that the diamond darter requires the 
following physical or biological features:
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-sized warmwater streams are defined as fourth- to 
eighth-order streams with a drainage area exceeding 518 square 
kilometers (km\2\) (200 square miles (mi\2\)), and water temperatures 
exceeding 20 [deg]C (68 [deg]F) at some point during the year (Winger 
1981, p. 40; Oliverio and Anderson 2008, p. 12). In the Elk River, 
adult diamond darters have 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 silt, clay, detritus, or submerged 
vegetation (George et al. 1996, p. 71; Shepard et al. 1999 in Osier 
2005, p. 11; NatureServe 2008, p. 1). Substrates with high levels of 
silt are unsuitable for the diamond darter. Siltation has been shown to 
negatively impact fish growth, survival, and reproduction (Berkman and 
Rabeni 1987, p. 285). Siltation is the pollution of water by fine 
particulate terrestrial material, with a particle size dominated by 
silt or clay. It refers both to the increased concentration of 
suspended sediments and to the increased accumulation (temporary or 
permanent) of fine sediments on stream bottoms. 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 sedimentation and erosion along 
streambanks and roads and deposition caused by land-based disturbances 
(Rosgen 1996, pp. 1-3). Additionally, coal mining, oil and gas 
development, timber harvesting, and all-terrain vehicle use have been 
identified as land-based disturbances that are sources of increased 
erosion and siltation within the Elk River watershed (U.S. 
Environmental Protection Agency 2001b, pp. 1-1, 3-4, 6; WVDEP 2008b, p. 
1). Streambank erosion and the resulting sedimentation and siltation 
can also be a source of increased channel instability (Rosgen 1996, pp. 
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, whereas unstable 
streams cannot maintain these features (Rosgen 1996, pp. 1-3 to 1-6). 
Thus, geomorphically stable streams maintain the riffles, pools, and 
silt-free substrates necessary to provide typical habitats for the 
diamond darter. Based on this information, geomorphically stable 
streams with clean sand and gravel substrates and low levels of silt 
are a critical component of diamond darter habitat.
    Fragmentation and destruction of habitat has reduced the 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

[[Page 52372]]

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.
    Little information is 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 (m) (118.1 to 1,378.0 feet (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, 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-mi) 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).
    After hatching, diamond darter larvae are pelagic and drift within 
the water column (Osier 2005, p. 12; Simon and Wallus 2006, p. 56; 
NatureServe 2008, p. 1). The larva may drift downstream until they 
reach slower water conditions such as pools, backwaters, or eddies 
(Lindquist and Page 1984, p. 27). It is not known how long diamond 
darters or crystal darters remain in this pelagic phase. The only known 
record of a young diamond darter captured in the wild was from benthic 
trawl surveys conducted in the Elk River somewhere near the confluence 
with the Kanawha River. We have been unable to determine the exact 
location of this capture, so we cannot determine how far downstream 
from known adult darter capture locations this young was found 
(Cincotta 2009a, p. 1). For more information on diamond darter larva 
drift, please see the Summary of Biological Status and Threats section 
of the final listing rule (78 FR 45074, July 26, 2013).
    Based on this information, free movement between habitat types 
within a significant length of stream may be important to provide 
sufficient space to support genetic mixing and normal behavior of the 
diamond darter, including potential upstream movements during the 
breeding period and downstream larval drift.
    Based on the biological information and needs discussed above, we 
identify connected 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, 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). 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). Diamond darters may also use an 
ambush foraging tactic by burying in the substrate and darting out at 
prey (Robinson 1992 and Hatch 1997 in Osier 2005, pp. 12-13; 
NatureServe 2008, p. 1; Ruble 2011c, p. 1). Researchers, therefore, 
expect that, similar to the crystal darter, adult diamond darters are 
benthic invertivores (NatureServe 2008, p. 8). Adult crystal darters 
eat midge and caddisfly larvae, and water mites in lesser quantities 
(Osier 2005, p. 13).
    Similarly, 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). 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). Juveniles may also eat 
zooplankton prey, which is more typical for pelagic larval percids 
(Rakes 2011, p. 1). This information suggests that loose sand and 
gravel 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, available data are 
insufficient to quantitatively define the standards for water quantity 
or quality that are required to support the species. However, some data 
available from areas that are known to support the diamond darter or 
the closely related crystal darter 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 centimeters (cm) (20 to 59 inches 
(in)) and in moderate to strong velocities that are typically greater 
than 20 cm/second (sec) (8 in/sec) (Osier 2005, p. 31). Similarly, the 
crystal darter has

[[Page 52373]]

been described as generally inhabiting waters deeper than 60 cm (24 in) 
with strong currents typically greater than 32 cm/sec (13 in/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. It is not known whether existing water 
quality conditions at capture sites are adequate to protect all life 
stages of Crystallaria species. Diamond darters were successfully 
maintained in captivity when water temperatures did not go below 2 
[deg]C (35.6[emsp14][deg]F) in the winter or above 25 [deg]C 
(77[emsp14][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[emsp14][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.
    Impoundment was one of the most direct and dramatic historical 
causes of diamond darter habitat loss. Impoundment of rivers for 
navigation may have been the final factor resulting in extirpation of 
the diamond darter from many of its historical habitats. Impoundment 
alters the quantity and flow of water in rivers, reduces or eliminates 
riffle habitats, reduces current velocities, and increases 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 
of these effects (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 
(Pennsylvania State University 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 maintains riffle habitats, 
transports nutrients and food items, moderates water temperatures and 
dissolved oxygen levels, removes fine sediments that could damage 
spawning or foraging habitats, and dilutes non-point-source pollutants. 
Therefore, an unimpeded flowing water supply is essential to the 
diamond darter.
    Based on the biological information and needs discussed above, we 
identify perennial streams with moderate velocities, seasonally 
moderated temperatures, good water quality, loose sand and gravel 
substrates, and healthy populations of benthic invertebrates and fish 
larvae for prey items to be physical or biological features essential 
to the conservation for the diamond darter. We also identify an ample 
and unimpeded supply of flowing water that closely resembles natural 
peaks and lows to be essential to the conservation for the diamond 
darter.
Cover or Shelter
    Adult 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 substrate during the day or partially 
buried with only the head (eyes and top of the snout) out of the 
substrate. However, individuals were often on top of the substrate 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).
    Substrates that are heavily embedded with silts and clays may 
impede this behavior. Embeddedness is the degree that cobble or gravel 
substrates are impacted by being surrounded or covered by fine silt and 
clay 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 sedimentation and 
siltation occurring in the stream (Shipman 2000, p. 12). While some 
definitions of embeddedness include sands as ``fines'' that increase 
embeddedness, naturally sandy streams are not considered embedded. 
However, a sand-predominated stream that is the result of anthropogenic 
activities that have buried the natural course substrates is considered 
embedded (Barbour et al. 1999, pp. 5-13; Shipman 2000, p. 12). The 
diamond darter requires substrates unembedded with silts and clays with 
a naturally high percentage of sands intermixed with loose gravel to 
fulfill these life-history requirements.
    Variability in the substrate and available habitat is also an 
important sheltering requirement for the diamond darter. Darters may 
shift to different habitat types during different life phases, or 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, may provide velocity shelters for young darters during high 
flows (Osier 2005, p. 4). Larval and young diamond darters may also use 
pools (Rakes 2013, p. 1). Darter larva may be poorly developed 
skeletally and unable to hold position or swim upstream where stronger 
currents exist (Lindquist and Page 1984, p. 27). The slower velocity 
habitats found in pools may provide darter larva with refuge from 
strong currents and allow them to find cover and forage (Lindquist and 
Page 1984, p. 27).

[[Page 52374]]

    Based on the biological information and needs discussed above, we 
identify riffle-pool transition areas with relatively silt-free 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 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 is being conducted by Conservation Fisheries 
Inc. (CFI) in partnership with the U.S. Geological Service (USGS) West 
Virginia Cooperative Fish and Wildlife Research Unit at West Virginia 
University. 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, pp. 11-12). Both eggs and hatched larvae were observed in 
April (Ruble et al. 2010, pp. 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 every year, no young have 
survived and matured (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 2011b, 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 2011b, p. 2).
    In addition to information from the CFI diamond darter reproduction 
study, there is some information available on crystal darter 
reproduction (Welsh et al. 2008, p. 1). In Arkansas, the reproductive 
season was from late January through mid-April, which roughly 
correlates 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 
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; kill or 
injure adult fish, young, or eggs; destabilize the substrates leading 
to increased sedimentation and erosion; and reduce the amount of 
available food and habitat to support fish populations. These impacts 
make the area less suitable for 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. This reduces water flow through the substrate, and 
increases 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, which is 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 alteration of instream habitat 
characteristics and increased sedimentation and siltation (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 streambeds 
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-sized (fourth- to eighth-order), warmwater 
streams within the Ohio River Watershed (Welsh 2008, p. 3; Southeast 
Aquatics Resources Partnership 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 is not sufficient for the conservation of the diamond 
darter. Given that the current distribution is restricted to 
approximately 45 km (28 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

[[Page 52375]]

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 streambeds and banks, and ability for 
populations to be distributed in multiple moderate- to large-sized 
(fourth- to eighth-order) streams throughout the Ohio River watershed 
to be physical or biological features 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 (PBFs) essential to the 
conservation of the diamond darter in areas occupied at the time of 
listing, focusing on the features' primary constituent elements (PCEs). 
The PCEs are those specific elements of the PBFs that provide for a 
species' life-history processes and are essential to the conservation 
of the species.
    Based on our current knowledge of the PBFs and habitat 
characteristics required to sustain the species' life-history 
processes, we determine that the PCEs specific to the diamond darter 
are:
    (1) PCE 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) PCE 2--Stable, undisturbed sand and gravel stream substrates, 
that are relatively free of and not embedded with silts and clays.
    (3) PCE 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) PCE 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) PCE 5--A prey base of other fish larvae and benthic 
invertebrates including midge, caddisfly, and mayfly larvae.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species, and which may require special management considerations or 
protection. The area we are designating 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 PBFs of the diamond darter. Various activities in 
or adjacent to the critical habitat unit described in this rule may 
affect one or more of the PCEs and may require special management 
considerations or protection. Some of these activities include, but are 
not limited to, resource extraction (coal mining, timber harvests, and 
natural gas and oil development activities), construction and 
maintenance projects, stream bottom disturbance from sewer, gas, and 
water lines, removal of riparian vegetation, and other sources of non-
point-source pollution.
    Management activities that could ameliorate these threats include, 
but are not limited to: use of best management practices designed to 
reduce sedimentation, erosion, and streambank 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 reviewed 
the 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 considered whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. As 
discussed in more detail below, we are designating as critical habitat 
all habitat that is occupied by the species at the time of listing in 
2013; that is, the lower Elk River. This river reach constitutes the 
entire current range of the species. We are also designating one 
specific area outside the geographical area occupied by the species at 
the time of listing, but that was historically occupied, because we 
have determined this area is essential for the conservation of the 
species.
    For our evaluation of 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 diamond darter.
    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 known collection 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 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 including upstream spawning movements and downstream 
larval drift. In addition, river habitats are highly dependent on 
upstream and downstream habitat

[[Page 52376]]

conditions for their maintenance, so these contiguous areas upstream 
and downstream are critical to maintaining habitat conditions of known 
capture sites.
    Because we have not been able to obtain a precise location of the 
young diamond darter that was captured in the Elk River somewhere near 
the confluence with the Kanawha River, this capture was not included in 
the analysis. We cannot be sure whether the capture location of this 
young diamond darter is downstream of or within the critical habitat 
designation for this unit.
    Areas of the Elk River downstream of the 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, were not included. Specifically, the reach of the Elk 
River downstream of the unit 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 designated unit may 
provide suitable habitat for the diamond darter, but we have no records 
of diamond darters being captured in this reach. 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. Surveys at four shoals in this 
upstream reach were conducted in 2012, and no diamond darters were 
located (Welsh et al. 2012, p. 10). Additional survey efforts 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 
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. As just described, 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 in the 
final listing rule (78 FR 45074, July 26, 2013), 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.
    To identify areas of unoccupied habitat that should be designated 
as critical habitat, we first selected rivers that had historical 
records confirmed to be of the diamond darter. By examining available 
museum specimens, we were able to independently verify the accuracy of 
the historical record. For rivers that had more than one historical 
capture, approximate capture locations were mapped so that the minimum 
previously occupied extent could be established. We then identified 
areas of contiguous habitat that still contained 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. For river reaches that passed this initial screen, 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; (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. Only 
one reach that we identified, in the Green River of Kentucky, met all 
three criteria. Applying these criteria, we confirmed 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 all three criteria.
    Next, we delineated the upstream and downstream boundaries of the 
unit on the Green River: The Green River immediately downstream of 
Green River Lake (River Mile 308.8 to 294.8) is excluded from the 
designated 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 Nature Conservancy's designated Green River 
Bioreserve are absent at Tebb's Bend, including mountain madtom 
(Noturus eleutherus), spotted darter (Etheostoma maculatum), and 
Tippecanoe darter (Etheostoma 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 streambed following hypolimnetic discharge from 
reservoirs (Thomas 2012, p. 1). Because fish community structure and 
habitat conditions at Roachville Ford are more similar to other 
downstream locations that are not affected by impoundment, this 
location (River Mile 294.8) represents the upstream limit of the 
designated critical habitat section, which continues downstream to Cave 
Island (River Mile 200.3) within Mammoth Cave National Park (NP).
    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

[[Page 52377]]

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 the areas of the Elk and Green Rivers that met 
our criteria, we used ArcGIS software and the National Hydrography 
Dataset (NHD) to delineate the specific river reaches being designated. 
These areas include only Elk River and Green River mainstem stream 
channels within the ordinary high-water line. 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 rounded to one decimal point and equivalent 
miles. 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 critical habitat boundaries within this final 
rule, 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 the 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 final rule have been excluded by text in the rule 
and are not designated as critical habitat. Therefore, a Federal action 
involving these lands will 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 streams outside of critical 
habitat do not play an important role in the conservation of the 
diamond darter.
    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-2013-0019, on our Web site 
at http://www.fws.gov/westvirginiafieldoffice/index.html, and at the 
West Virginia Field Office (see FOR FURTHER INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating 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. Those units are: (1) The lower Elk 
River; and (2) the Green River. Table 1 shows the occupancy of the 
units and the ownership of the designated areas for the diamond darter.

                                  Table 1--Occupancy and Ownership of Designated 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)               ***       45.0 (28.0)
2.......................................  Green River.................  no........................       16.3 (10.1)      135.8 (84.4)      152.1 (94.5)
                                                                                                   -----------------------------------------------------
    Total**.............................  ............................  ..........................  ................  ................     197.1 (122.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* As described below, this includes a combination of State ownership and easements. The State considers the easement area under its jurisdiction. These
  are the best data 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.
*** None.

    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, adjoining 
landowners also own the land under streams (e.g., the stream channel or 
bottom) in the designated unit, but the water is under State 
jurisdiction.

[[Page 52378]]

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 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 publicly owned. The majority of lands 
adjacent to this unit are privately owned. There are two areas of 
public land adjacent to the unit: the 3,996-hectare (ha) (9,874-acre 
(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 throughout this unit, 
including near the towns of Clendenin, Elk View, Blue Creek, Walgrove, 
Mink Shoals, Reamer Hill, and at sites 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). Connectivity between these habitats 
provides access to various spawning, foraging, and resting sites, to 
allow for larval drift, 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 harvesting, and natural gas 
and oil development); 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 non-point-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, although it is not currently occupied by the diamond 
darter, 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 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, TNC 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, WKU 
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 (WKU 2012, 
p. 1).
    This unit is within the historical range of the species, but is not 
currently considered occupied. The Green River historically supported 
approximately 170 species of fish, including the diamond darter. 
Between 1890 and 1929, diamond darters were recorded from three 
locations within this unit: adjacent to Cave Island in Edmonson 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-mi) 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. This reach of the 
Green River currently supports over 150 species of fish and 70 species 
of freshwater mussels, including 9 federally endangered mussel species, 
but there is no designated critical habitat in this section of the 
Green River (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 Kentucky Energy and Environment Cabinet (KYEEC) 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 designated 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). To 
protect the features and quality of Wild Rivers, land use changes are 
regulated by a permit system, and certain highly destructive land use 
changes, such as strip mining and clearcutting, are prohibited within 
corridor boundaries (KYEEC 2012, p. 1).
    As described in the Criteria Used To Identify Critical Habitat 
section above, the inclusion of this unoccupied area is

[[Page 52379]]

essential for the conservation of the diamond darter. This area 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. While not required under section 3(5)(A)(ii) of the 
Act, this area also contains all of the PCEs. 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, 4, and 5).
    The reach of the Green River being designated 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 KYDFWR identified this portion of 
the Green River as a Priority Conservation Area in its 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, KYWA, WKU, Kentucky State 
University, the ACOE, private landowners, and other partners are also 
working toward 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). There are also a number of 
ongoing efforts to educate the public on the biodiversity the river 
supports. These efforts include river cleanups and the establishment of 
a Watershed Watch program under which volunteers are trained to monitor 
the biological conditions in the river.
    Land use within this watershed is primarily agriculture and 
forestry and also some oil and gas development. 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 non-point-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 
or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    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 (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 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 the Service. 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 Act) or that 
involve some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on state, tribal, local, or 
private lands that are not federally funded or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect 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 or 
destroy or adversely modify critical habitat, or both, we provide 
reasonable and prudent alternatives to the project, if any are 
identifiable, that would avoid the likelihood of jeopardy or 
destruction or adverse modification of critical habitat, or both. 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.

[[Page 52380]]

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 streambed 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 (non-
point 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 streambed 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 siltation or nutrification.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense lands with a completed INRMP within the proposed 
critical habitat designation.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. The statute on its face, as well as the legislative history, 
is clear that the Secretary has broad discretion regarding which 
factor(s) to use and how much weight to give to any factor in making 
that determination.
    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. To consider 
economic impacts, we prepared a DEA of the proposed critical habitat 
designation and related factors (Industrial Economics Inc. 2013a, 
entire). The draft analysis, dated February 27, 2013, was made 
available for public review from March 29, 2013, through April 29, 2013 
(78 FR 19172). Following the close of the comment period, a final 
analysis (dated June 2013) of the potential economic effects of the 
designation (FEA) was developed taking into consideration the public 
comments and any new information (Industrial Economics Inc. 2013b, 
entire).
    The intent of the FEA is to quantify the economic impacts of all 
potential conservation efforts for the diamond darter. The economic 
impact of the final critical habitat designation is analyzed by 
comparing scenarios ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species (e.g., listing under the Act as well as other Federal, 
State, and local authorities). The baseline therefore represents the 
costs incurred regardless of whether critical habitat is designated. 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species, and which are not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs. These are the 
costs we consider in the final designation of critical habitat. The FEA 
looks at baseline impacts occurring due to listing

[[Page 52381]]

the species, and forecasts both baseline and incremental impacts likely 
to occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the FEA looks at costs that may occur in 
the 20 years following the designation of critical habitat, which was 
determined to be the appropriate period for analysis because limited 
planning information was available for most activities to forecast 
activity levels for projects beyond a 20-year timeframe. The FEA 
quantifies economic impacts of diamond darter conservation efforts 
associated with the following categories of activity: (1) Resource 
extraction (coal mining, gravel and rock mining, and oil and natural 
gas exploration) and utilities; (2) timber management, agriculture, and 
grazing; (3) other instream work (dredging, channelization, diversions, 
dams, instream construction of boat docks, etc.); (4) transportation 
(roads, highways, bridges); and (5) water quality/sewage management.
    The FEA concludes that the types of conservation efforts requested 
by the Service during section 7 consultation regarding the diamond 
darter were not expected to change due to critical habitat designation. 
The results of consultation under the adverse modification and jeopardy 
standards are likely to be similar because there is a close 
relationship between the health of the diamond darter and the health of 
its habitat. Alterations of habitat that diminish the value (e.g., 
actions that alter hydrology, water quality, or suitability of 
substrate) and the amount of diamond darter habitat would likely affect 
its population size and ability to recruit young, would likely cause 
further range declines, and could appreciably reduce the species' 
likelihood of survival and recovery in the wild. Such habitat 
alterations could, therefore, constitute jeopardy to the species. In 
most cases, the results of consultation on projects in occupied diamond 
darter habitat under the adverse modification and jeopardy standards 
are likely to be similar because the diamond darter's entire life 
history is reliant on the presence of all the PCEs being present within 
one contiguous stream reach. Thus, project modifications that minimize 
impacts to the species to avoid jeopardy would coincidentally minimize 
impacts to critical habitat.
    In addition, although one of the critical habitat units for the 
diamond darter is unoccupied, incremental impacts of the critical 
habitat designation will be limited because the unit is currently 
occupied by nine federally endangered mussels. Management 
recommendations made to avoid adverse effects during previous mussel 
consultations included using enhanced sedimentation and erosion control 
measures, avoiding water quality degradation through the use of spill 
and run-off prevention and control measures, avoiding instream 
disturbances through the use of project alternatives such as 
directional drilling, conducting project activities away from the 
river, and minimizing disturbances to and fill of lands adjacent to the 
river and stream tributaries. These recommendations are similar to the 
types of management recommendations that would be used to avoid adverse 
modifications to diamond darter critical habitat.
    The FEA concludes that incremental impacts of critical habitat 
designation are limited to additional administrative costs of 
consultations and that indirect incremental impacts are unlikely to 
result from the designation of critical habitat for the diamond darter. 
The present value of the total direct (administrative) incremental cost 
of critical habitat designation is $800,000 assuming a 7 percent 
discount rate, or $70,000 on an annualized basis. Transportation 
activities are likely to be subject to the greatest incremental impacts 
at $320,000 over 20 years, followed by timber management, agriculture, 
and grazing activities collectively at $260,000; resource extraction 
activities at $150,000; other instream work at $50,000; and water 
quality/sewage management at $18,000. These numbers represent present 
value at a 7 percent discount rate and may not total due to rounding.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exerting his discretion to exclude any areas from this 
designation of critical habitat for the diamond darter based on 
economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the West Virginia Field Office (see ADDRESSES) or by 
downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
the diamond darter are owned or managed by the Department of Defense, 
and therefore we anticipate no impact on national security. 
Consequently, the Secretary is not exerting her discretion to exclude 
any areas from this final designation based on impacts on national 
security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether any conservation partnerships would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues, and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for the diamond darter, and 
the final designation does not include any tribal lands or trust 
resources. We anticipate no impact on tribal lands, partnerships, or 
HCPs from this critical habitat designation. Accordingly, the Secretary 
is not exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. The OIRA has determined 
that this rule is not significant.

[[Page 52382]]

    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 E.O. 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. The 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.

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

    Under the RFA (5 U.S.C. 601 et seq.), as amended by SBREFA of 1996 
(5 U.S.C 801 et seq.), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an 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. In this 
final rule, we are certifying that the critical habitat designation for 
the diamond darter will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., resource 
extraction; timber management, agriculture, and grazing; instream 
activities; transportation; and water quality and sewer management). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether the activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the diamond darter. Federal agencies also must consult 
with us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities (see Application of the 
``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the 
diamond darter and the designation of critical habitat. The analysis is 
based on the estimated impacts associated with the rulemaking as 
described in Chapters 3 through 4 and Appendix A of the analysis and 
evaluates the potential for economic impacts from resource extraction; 
timber management, agriculture, and grazing; instream activities; 
transportation; and water quality and sewer management.
    We determined from our analysis (Appendix A in FEA) that there will 
be minimal additional economic impacts to small entities resulting from 
the designation of critical habitat, because almost all of the 
potential costs related to modification of activities and conservation 
that were identified in the economic analysis represent baseline costs 
that would be realized in the absence of critical habitat. The economic 
analysis estimates that approximately 245 small entities may be 
affected over the next 20 years. This equates to fewer than 13 entities 
affected per year. The large majority of these affected entities (190 
or 82 percent) are agriculture and timbering entities in Kentucky that 
receive assistance through the NRCS. Participation in NRCS assistance 
programs is voluntary. The remaining 68 potentially affected small 
entities are associated with resource extraction and other instream 
work. This equates to an average of fewer than four affected small 
entities per year. The FEA estimates incremental costs of between $880 
and $8,800 per affected entity engaging in resource extraction or other 
instream work; this cost equals an impact of less than 0.1 percent to 
each entity's annual revenue. All of these costs are derived from the 
added effort associated with considering adverse modification in the 
context of section 7 consultations.
    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available data, we 
conclude that this rule would not result in a significant economic 
impact on a substantial number of small entities. Therefore, we are 
certifying that the designation of critical habitat for the diamond 
darter will not have a significant economic impact on a substantial 
number of small entities, and a regulatory flexibility analysis is not 
required.

[[Page 52383]]

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. The OMB has provided guidance for implementing this 
E.O. that outlines nine outcomes that may constitute ``a significant 
adverse effect'' when compared to not taking the regulatory action 
under consideration. The FEA considered the potential effects of the 
diamond darter critical habitat designation on coal, oil, and gas 
development. The FEA found that some limited impacts to these energy 
development activities are anticipated, but they will mostly be limited 
to the administrative costs of consultation. Therefore, reductions in 
energy production are not anticipated, and consultation costs are not 
anticipated to increase the cost of energy production or distribution 
in the United States in excess of one percent. None of the nine outcome 
thresholds of impact are exceeded, and the economic analysis finds that 
none of these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with diamond darter conservation activities within critical habitat are 
not expected. As such, the designation of critical habitat is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule 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 FEA concludes incremental impacts may 
occur due to administrative costs of section 7 consultations for 
projects in the following categories that have a Federal nexus: 
resource extraction; timber management, agriculture, and grazing; 
instream activities; transportation; and water quality and sewer 
management. Small governments will be affected only to the extent that 
they must ensure that their actions that involve Federal funding or 
authorization will not adversely affect the critical habitat. This rule 
will not produce a Federal mandate of $100 million or greater in any 
year; that is, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act. Consequently, we do not believe that the 
critical habitat designation would significantly or uniquely affect 
small government entities. As such, a Small Government Agency Plan is 
not required.

Takings--Executive Order 12630

    In accordance with E.O. 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. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding, 
assistance, or 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. 
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 E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism impact summary statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this critical habitat designation with 
appropriate State resource agencies in West Virginia and Kentucky. We 
received comments from the State of West Virginia and have addressed 
them in the Summary of Comments and Recommendations section of the 
rule. The designation of critical habitat in areas currently occupied 
by the diamond darter imposes no additional restrictions to those 
currently in place and therefore has little incremental impact on State 
and local governments and their activities. The designation may have 
some benefit to these governments in that the areas that contain the 
PBFs essential to the conservation of the species are more clearly 
defined, and the elements of the features of the habitat necessary to 
the

[[Page 52384]]

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 E.O. 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 applicable standards set forth in 
sections 3(a) and 3(b)(2) of the Executive Order. We are designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of PBFs essential to the conservation 
of the diamond darter. The designated areas of critical habitat are 
presented on maps, and the rule provides several options for the 
interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), E.O. 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 occupied by the 
diamond darter at the time of listing that contain the PBFs essential 
to conservation of the species, and that there are no tribal lands 
unoccupied by the diamond darter that are essential for the 
conservation of the species. Therefore, we are not designating critical 
habitat for the diamond darter on tribal lands.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 
Field Supervisor, West Virginia Field Office (see ADDRESSES section).

Author(s)

    The primary author of this document is staff from the West Virginia 
Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 16 U.S.C. 4201-4245; 
unless otherwise noted.


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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                       population  where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Darter, diamond..................  Crystallaria          U.S.A. (IN, KY, OH,  Entire.............  E                       815     17.95(e)           NA
                                    cincotta.             TN, WV)
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 52385]]


0
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 sand and gravel stream substrates that are 
relatively free of and not embedded with silts and clays.
    (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 
bridges, docks, aqueducts 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 U.S. Geological Survey National Hydrography Dataset 
Geographic Information System 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-2013-0019, 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:
[GRAPHIC] [TIFF OMITTED] TR22AU13.004

    (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 52386]]

[GRAPHIC] [TIFF OMITTED] TR22AU13.005

    (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] TR22AU13.006
    

[[Page 52387]]


* * * * *

    Dated: August 6, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-20449 Filed 8-21-13; 8:45 am]
BILLING CODE 4310-55-P