[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)]
[Proposed Rules]
[Pages 60962-60988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25278]



[[Page 60961]]

Vol. 80

Thursday,

No. 195

October 8, 2015

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Kentucky Arrow Darter With 4(d) Rule; Proposed Rule

  Federal Register / Vol. 80 , No. 195 / Thursday, October 8, 2015 / 
Proposed Rules  

[[Page 60962]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2015-0132; 4500030113]
RIN 1018-AZ09


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Kentucky Arrow Darter With 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Kentucky arrow darter (Etheostoma spilotum), a fish species 
from the upper Kentucky River basin in Kentucky, as a threatened 
species under the Endangered Species Act (Act). If we finalize this 
rule as proposed, it would extend the Act's protections to this 
species.

DATES: We will accept comments received or postmarked on or before 
December 7, 2015. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 23, 2015.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2015-0132, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2015-0132; U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Virgil Lee Andrews, Jr., Field 
Supervisor, U.S. Fish and Wildlife Service, Kentucky Ecological 
Services Field Office, 330 West Broadway, Suite 265, Frankfort, KY 
40601; telephone 502-695-0468, x108; facsimile 502-695-1024. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), if we find that a species may be an endangered or threatened 
species throughout all or a significant portion of its range, we are 
required to promptly publish a proposed rule to list the species in the 
Federal Register and make a final determination on our proposal within 
1 year. Listing a species as an endangered or threatened species can 
only be completed by issuing a rule.
    This rule proposes the listing of the Kentucky arrow darter 
(Etheostoma spilotum) as a threatened species. The Kentucky arrow 
darter is a candidate species for which we have on file sufficient 
information on biological vulnerability and threats to support 
preparation of a listing proposal, but for which development of a 
listing rule has until now been precluded by other higher priority 
listing activities. This rule assesses all available information 
regarding the status of and threats to the Kentucky arrow darter. 
Elsewhere in today's Federal Register, we propose to designate critical 
habitat for the Kentucky arrow darter under the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Kentucky arrow darter 
warrants listing based on three of the five factors (A, D, and E).
    We will seek peer review. We will seek comments from independent 
specialists to ensure that our listing determination is based on 
scientifically sound data, assumptions, and analyses. We will invite 
these peer reviewers to comment on our listing proposal. Because we 
will consider all comments and information we receive during the 
comment period, our final determination may differ from this proposal.

Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) The Kentucky arrow darter's biology, range, and population 
trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (4) Whether measures outlined in the proposed species-specific rule 
under section 4(d) of the Act are necessary and advisable for the 
conservation and management of the Kentucky arrow darter.
    (5) Additional provisions that may be appropriate to except 
incidental take as a result of other categories of activities beyond 
those covered by this proposed species-specific rule and, if so, under 
what conditions and with what conservation measures, in order to 
conserve, recover, and manage the Kentucky arrow darter.
    (6) Comments and suggestions, particularly from Federal agencies 
and other interested stakeholders that may be affected by the 4(d), 
regarding additional guidance and methods that

[[Page 60963]]

the Service could provide or utilize, respectively, to streamline the 
implementation of this 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1531 et seq.) directs that determinations as to whether any species is 
an endangered or threatened species must be made ``solely on the basis 
of the best scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Kentucky Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearing

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

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of five appropriate and independent specialists regarding this 
proposed rule. The purpose of peer review is to ensure that our listing 
determination is based on scientifically sound data, assumptions, and 
analyses. The peer reviewers have expertise in the Kentucky arrow 
darter's biology, habitat, threats, etc., which will inform our 
determination. We will invite comment from the peer reviewers during 
this public comment period.

Previous Federal Action

    The Kentucky arrow darter was first identified as a candidate for 
protection under the Act in the November 10, 2010, Federal Register (75 
FR 69222). Candidate species are those fish, wildlife, and plants for 
which we have on file sufficient information on biological 
vulnerability and threats to support preparation of a listing proposal, 
but for which development of a listing regulation is precluded by other 
higher priority listing activities. Candidates are assigned listing 
priority numbers (LPNs) based on immediacy and the magnitude of 
threats, as well as the species' taxonomic status. A lower LPN 
corresponds to a higher conservation priority, and we consider the LPN 
when prioritizing and funding conservation actions. In our 2010 
candidate notice of review (CNOR) (75 FR 69222), we identified the 
species as having an LPN of 3, in accordance with our priority guidance 
published on September 21, 1983 (48 FR 43098). An LPN of 3 reflects a 
subspecies with imminent, high magnitude threats. The Kentucky arrow 
darter was included in all of our subsequent annual CNORs (76 FR 66370, 
October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 
22, 2013; 79 FR 72450, December 5, 2014). On November 22, 2013 (78 FR 
70104), we changed the LPN for the Kentucky arrow darter from 3 to 2 
based on a change in the species' taxonomic status (change from 
subspecies to species rank). In our 2014 CNOR (79 FR 72450), we 
retained an LPN of 2 for this species.

Background

Species Information

Species Description and Taxonomy
    The Kentucky arrow darter, Etheostoma spilotum Gilbert, is a small 
and compressed fish, which reaches a maximum length of about 120 
millimeters (mm) (4.7 inches (in)). It has a slender body, elongated 
snout, relatively large mouth, and virtually scaleless head (Kuehne and 
Barbour 1983, p. 71; Etnier and Starnes 1993, p. 523). The Kentucky 
arrow darter's background color is straw yellow to pale greenish, and 
the body is also covered by a variety of stripes and blotches. The back 
is crossed by 5 to 7 weak dorsal saddles, some of which may fuse with 
the 8 to 11 vertical lateral blotches (Kuehne and Barbour 1983, p. 71; 
Etnier and Starnes 1993, p. 523). The blotches are generally oval with 
pale centers at the front of the body but extend downward and may 
resemble the letters N, W, U, or V toward the back of the body. A dark 
vertical bar occurs at the base of the caudal fin, sometimes separated 
by two distinct spots. The belly is pale (Kuehne and Barbour 1983, p. 
71). During the spawning season, breeding males exhibit vibrant 
coloration. Most of the body is blue-green in color, with scattered 
scarlet spots and scarlet to orange vertical bars laterally; the 
vertical bars can be connected ventrally by an orange belly stripe 
(Etnier and Starnes 1993, p. 523). The spinous dorsal fin exhibits a 
blue-green central band and a scarlet marginal band. The soft dorsal 
and caudal fins are speckled with scarlet blotches or bands, and the 
anal and pelvic fins are blue-green to black. Females remain pale straw 
yellow with grayish markings (Etnier and Starnes 1993, p. 523). 
Morphological differences between the Kentucky arrow darter and other 
darters make misidentifications unlikely. The species can be easily 
differentiated by its elongated snout, its oval or diamond-shaped 
lateral blotches, and its large size (for individuals greater than 100 
mm (3.9 in) total length (TL)).
    The Kentucky arrow darter belongs to the Class Actinopterygii (ray-
finned fishes), Order Perciformes, and Family Percidae (perches) 
(Etnier and Starnes 1993, pp. 18-25; Page and Burr 2011, p. 569). The 
species was described from the Kentucky River basin (Sturgeon Creek, 
Owsley County) as Etheostoma nianguae spilotum (Gilbert 1887, pp. 53-
54), but was later recognized and accepted as one of two subspecies of 
the arrow darter, E. sagitta (Jordan and Swain) (Bailey 1948, pp. 80-
84; Kuehne and Bailey 1961, pp. 1-5; Kuehne and Barbour 1983, p. 71; 
Burr and Warren 1986, p. 316). Thomas and Johansen (2008, p. 46) 
questioned the subspecies status of E. sagitta by arguing that (1) the 
two subspecies, E. sagitta sagitta and E. sagitta spilotum, were 
distinguishable based on scale size and development of the lateral line 
(see note below); (2) the

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two subspecies existed in allopatry (separate ranges with no overlap); 
(3) the two subspecies lacked intergrades (intermediate forms); and (4) 
unpublished genetic data (mitochondrial DNA) suggested evolutionary 
independence of Kentucky and Cumberland basin populations (with no 
recent genetic exchange). Based on these analyses, the two arrow darter 
subspecies have been elevated to species rank (Page and Burr 2011, p. 
569; Eschmeyer 2014, p. 1). The Cumberland arrow darter, E. sagitta 
(Jordan and Swain), is restricted to the upper Cumberland River basin 
in Kentucky and Tennessee, and the Kentucky arrow darter, E. spilotum 
Gilbert, is restricted to the upper Kentucky River basin in Kentucky.
Habitat and Life History
    Kentucky arrow darters typically inhabit pools or transitional 
areas between riffles and pools (glides and runs) in moderate- to high-
gradient, first- to third-order streams with rocky substrates (Thomas 
2008, p. 6). The species is most often observed near some type of 
cover--boulders, rock ledges, large cobble, or woody debris piles. 
During spawning (April to June), the species will utilize riffle 
habitats with moderate flow (Kuehne and Barbour 1983, p. 71). Thomas 
(2008, p. 6) observed Kentucky arrow darters at depths ranging from 10 
to 45 centimeters (cm) (4 to 18 in) and in streams ranging from 1.5 to 
20 meters (m) (4.9 to 65.6 feet (ft)) wide. Kentucky arrow darters 
typically occupy streams with watersheds of 25.9 square kilometers 
(km\2\) (10 square miles (mi\2\)) or less, and many of these habitats, 
especially those in first-order reaches, can be intermittent in nature 
(Thomas 2008, pp. 6-9). During drier periods (late summer or fall), 
some Kentucky arrow darter streams may cease flowing, but the species 
appears to survive these conditions by retreating into shaded, isolated 
pools or by dispersing into larger tributaries (Lotrich 1973, p. 394; 
Lowe 1979, p. 26; Etnier and Starnes 1993, p. 523; Service unpublished 
data). Lotrich (1973, p. 394) observed riffle habitats in Clemons Fork 
(Breathitt County) that were completely dry by late summer, but shaded 
isolated pools in these habitats continued to support Kentucky arrow 
darters.
    Male Kentucky arrow darters establish territories over riffles from 
March to May, when they are quite conspicuous in water 5 to 15 cm (2 to 
6 in) deep (Kuehne and Barbour 1983, p. 71). Males fan out a depression 
in the substrate and defend these sites vigorously. Initial courtship 
behavior involves rapid dashes, fin-flaring, nudging, and quivering 
motions by the male followed by similar quivering responses of the 
female, who then precedes the male to the nest. The female partially 
buries herself in the substrate, is mounted by the male, and spawning 
occurs (Etnier and Starnes 1993, p. 523). It is assumed that the male 
continues to defend the nest until the eggs have hatched. The spawning 
period extends from April to June, but peak activity occurs when water 
temperatures reach 13 degrees Celsius ([deg]C) (55 degrees Fahrenheit 
([deg]F)), typically in mid-April (Bailey 1948, pp. 82-84; Lowe 1979, 
p. 44). Females produce between 200 and 600 eggs per season, with 
tremendous variation resulting from size, age, condition of females, 
and stream temperature (Rakes 2014, pers. comm.).
    Young Kentucky arrow darters can exceed 25 mm (1 in) TL by mid-June 
and can reach 50 mm (2 in) in length by the end of the first year 
(Lotrich 1973, pp. 384-385; Lowe 1979, pp. 44-48; Kuehne and Barbour 
1983, p. 71). One-year olds are generally sexually mature and 
participate in spawning with older age classes (Etnier and Starnes 
1993, p. 523). Lotrich (1973, p. 384) reported a mean length at age 2 
of about 65 mm (2.6 in) but was unable to differentiate between older 
age classes (age 3+). Lowe (1979, p. 38) reported four age classes for 
the closely related Cumberland arrow darter, but growth was variable 
after age 1. Juvenile Kentucky arrow darters can be found throughout 
the channel but are often observed in shallow water along stream 
margins near root mats, rock ledges, or some other cover. As stream 
flow lessens and riffles begin to shrink, most Kentucky arrow darters 
move into pools and tend to remain there even when summer and autumn 
rains restore stream flow (Kuehne and Barbour 1983, p. 71).
    Limited information exists with regard to upstream or downstream 
movements of Kentucky arrow darters; however, preliminary findings from 
a movement study at Eastern Kentucky University (EKU) and a 
reintroduction project on the Daniel Boone National Forest (DBNF) 
suggest that Kentucky arrow darters can move considerable distances 
(Baxter 2014, pers. comm.; Thomas 2015a, pers. comm.).
    The EKU study is using PIT-tags (electronic tags placed under the 
skin) and placed antenna systems (installed in the stream bottom) to 
monitor intra- and inter-tributary movement of Kentucky arrow darters 
in Gilberts Big Creek and Elisha Creek, two second-order tributaries of 
Red Bird River in Clay and Leslie Counties (Baxter 2014, pers. comm.). 
PIT-tags have been placed in a total of 126 individuals, and Kentucky 
arrow darter movements have been tracked since December 2013. Recorded 
movements have ranged from 134 m (439 ft) (upstream movement) to 4,078 
m (13,379 ft or 2.5 mi) (downstream movement by a female in Elisha 
Creek). Intermediate recorded movements have included 328 m (1,076 ft) 
(downstream), 351 m (1,151 ft) (upstream), 900 m (2,952 ft) (upstream/
downstream), 950 m (3,116 ft) (downstream), 1,282 m (4,028 ft) 
(downstream), and 1,708 m (5,603 ft) (downstream).
    Since 2012, the Kentucky Department of Fish and Wildlife Resources 
(KDFWR) has been releasing captive-bred Kentucky arrow darters into 
Long Fork, a DBNF stream and first-order tributary to Hector Branch in 
eastern Clay County, Kentucky, where the species had been extirpated. A 
total of 1,447 captive-spawned KADs (about 50-55 mm TL) have been 
tagged and reintroduced within a 1.5-km (0.9 mi) reach of Long Fork. 
Monitoring has been conducted on multiple occasions since the initial 
release using visual searches and seining methods. Tagged darters have 
been observed during each monitoring event, with numbers increasing 
since the reintroduction began in 2012. Untagged individuals began to 
appear in Long Fork in 2013, indicating natural reproduction in Long 
Fork. In 2015, KDFWR observed five untagged individuals (47-58 mm TL) 
and one tagged individual (90 mm TL) in Hector Branch, approximately 
0.6 km (0.4 mi) upstream of its confluence with Long Fork, and they 
also observed four untagged individuals (44-52 mm TL) in Deerlick 
Branch, a first-order tributary of Hector Branch, approximately 1.0 km 
(0.6 mi) downstream of the confluence of Long Fork and Hector Branch 
(Thomas 2015a, pers. comm.). Based on these results, it is evident that 
at least some Kentucky arrow darters have moved out of Long Fork into 
other parts of the Hector Creek drainage. It is impossible to determine 
if the untagged fish were spawned in Long Fork or Hector Branch; 
however, the former scenario is most likely given the poor water 
quality and habitat conditions in Hector Branch and the lack of 
collection records in Hector Branch prior to reintroduction efforts. 
Considering the water quality and habitat conditions in Hector Branch, 
it is also plausible that the individuals captured in Hector Branch 
were in transit seeking higher quality habitat (e.g., small 
tributaries). Based on these results, it is clear that young Kentucky 
arrow darters can

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disperse both upstream and downstream from their place of origin and 
can move considerable distances.
    Additional insight into possibility of interstream dispersal can be 
gained from the closely related Cumberland arrow darter. Lowe (1979, 
pp. 26-27) observed potential movement behavior for the Cumberland 
arrow darter in Tennessee. During field observations in January and 
February 1975, no Cumberland arrow darters were observed near the mouth 
of No Business Creek, a tributary of Hickory Creek in Campbell County, 
Tennessee, and downstream of a perched culvert. During a subsequent 
survey at this location, Lowe observed a total of 34 Cumberland arrow 
darters, a dramatic increase compared to previous surveys. Lowe (1979, 
pp. 26-27) considered it unlikely that the Cumberland arrow darters 
originated from upstream reaches of No Business Creek because no 
individuals were observed upstream of the culvert during the length of 
the study and no individuals had been observed at the site during the 
previous week. The only plausible explanation for the sudden increase 
was that the Cumberland arrow darters had migrated from Hickory Creek 
or a nearby tributary of Hickory Creek (e.g., Laurel Fork).
    Kentucky arrow darters feed primarily on mayflies (Order 
Ephemeroptera), which comprised 77 percent of identifiable food items 
(420 of 542 items) in 57 Kentucky arrow darter stomachs from Clemons 
Fork, Breathitt County (Lotrich 1973, p. 381). The families 
Heptageniidae (genera Maccaffertium and Stenonema) and Baetidae were 
the dominant mayflies in examined stomachs of Cumberland arrow darters 
in Tennessee (Lowe 1979, pp. 35-36). Kentucky arrow darters greater 
than 70 mm (2.8 in) TL often feed on small crayfish, as 7 of 8 stomachs 
examined by Lotrich (1973, p. 381) from Clemons Fork contained 
crayfishes ranging in size from 11 to 24 mm (0.4 to 0.9 in). Lotrich 
(1973, p. 381) considered this to be noteworthy because stomachs of 
small Kentucky arrow darters (less than 70 mm (2.8 in) TL) and stomachs 
of other darter species did not contain crayfishes. He suggested that 
larger individuals were utilizing a different energy source, thus 
removing themselves from direct competition for food with other fishes 
in first- and second-order streams. Lotrich (1973, p. 381) speculated 
that this would allow these larger individuals to exploit an abundant 
food source and survive in extreme headwater habitats. Other food items 
reported by Lotrich (1973, p. 381) and Etnier and Starnes (1993, p. 
523) included larval blackflies (family Simuliidae) and midges 
(Chironomidae), with lesser amounts of caddisfly larvae, stonefly 
nymphs, and beetle larvae. Etnier and Starnes (1993, p. 523) reported 
that juvenile arrow darters feed on microcrustaceans and dipteran 
larvae.
    Common associates of the Kentucky arrow darter include creek chub 
(Semotilus atromaculatus), central stoneroller (Campostoma anomalum), 
white sucker (Catastomus commersonii), emerald darter (Etheostoma 
baileyi), rainbow darter (E. caeruleum), fantail darter (E. 
flabellare), and Johnny darter (E. nigrum) (Kuehne 1962, p. 609; 
Lotrich 1973, p. 380; Thomas 2008, p. 7). Within first-order streams or 
headwater reaches, the species is most commonly associated with creek 
chub, central stoneroller, and fantail darter.
Historical Range and Distribution
    The Kentucky arrow darter occurred historically in at least 74 
streams in the upper Kentucky River basin of eastern Kentucky (Gilbert 
1887, pp. 53-54; Woolman 1892, pp. 275-281; Kuehne and Bailey 1961, pp. 
3-4; Kuehne 1962, pp. 608-609; Branson and Batch 1972, pp. 507-514; 
Lotrich 1973, p. 380; Branson and Batch 1974, pp. 81-83; Harker et al. 
1979, pp. 523-761; Greenberg and Steigerwald 1981, p. 37; Branson and 
Batch 1983, pp. 2-13; Branson and Batch 1984, pp. 4-8; Kornman 1985, p. 
28; Burr and Warren 1986, p. 316; Measel 1997, pp. 1-105; Kornman 1999, 
pp. 118-133; Stephens 1999, pp. 159-174; Ray and Ceas 2003, p. 8; 
Kentucky State Nature Preserves Commission (KSNPC) unpublished data). 
Its distribution spanned portions of 6 smaller sub-basins or watersheds 
(North Fork Kentucky River, Middle Fork Kentucky River, South Fork 
Kentucky River, Silver Creek, Sturgeon Creek, and Red River) in 10 
Kentucky counties (Breathitt, Clay, Harlan, Jackson, Knott, Lee, 
Leslie, Owsley, Perry, and Wolfe) (Thomas 2008, p. 3) (Figure 1).

[[Page 60966]]

[GRAPHIC] [TIFF OMITTED] TP08OC15.001

    The Kentucky arrow darter was first reported from the upper 
Kentucky River basin by Gilbert (1887, pp. 53-54), who collected 12 
specimens from Sturgeon Creek near Travelers Rest, Owsley County. 
Woolman (1892, pp. 275-281) conducted more extensive surveys throughout 
the basin in the summer of 1890, reporting the species from seven 
additional streams: Big Creek, Cutshin Creek, Hector Branch, Lotts 
Creek, Middle Fork Kentucky River, Red Bird River, and Troublesome 
Creek. Kuehne and Bailey (1961, pp. 3-4) and Kuehne (1962, pp. 608-614) 
surveyed additional portions of the basin from 1954-1959, observing the 
species in Sexton Creek, Troublesome Creek (mainstem), and nine smaller 
streams in the Troublesome Creek watershed: Bear Branch, Buckhorn 
Creek, Clemons Fork, Coles Fork, Laurel Fork, Lewis Fork, Long Fork, 
Millseat Branch, and Snag Ridge Fork. From 1969-1978, biologists from 
EKU and KSNPC documented the species from an additional eight streams: 
Buck Creek, Buffalo Creek, Greasy Creek, Horse Creek, Jacks Creek, 
Laurel Creek, Leatherwood Creek, and Raccoon Creek (Branson and Batch 
1972, pp. 507-514; Branson and Batch 1974, pp. 81-83; Harker et al. 
1979, pp. 523-761; Branson and Batch 1983, pp. 2-13; Branson and Batch 
1984, pp. 4-8; Burr and Warren 1986, p. 316). The number of known 
occurrences for the Kentucky arrow darter increased considerably during 
the 1990s (1990-1999), when EKU, KDFWR, the Kentucky Division of Water 
(KDOW), and KSNPC completed surveys throughout the basin, documenting 
the species' presence in a total of 46 streams (Kornman 1999, pp. 118-
133; Stephens 1999, pp. 159-174; Ray and Ceas 2003, p. 8; KSNPC 
unpublished data).
Current Range and Distribution
    Based on surveys completed since 2006, extant populations of the 
Kentucky arrow darter are known from 47 streams in the upper Kentucky 
River basin in eastern Kentucky. These populations are scattered across 
6 sub-basins (North Fork Kentucky River, Middle Fork Kentucky River, 
South Fork Kentucky River, Silver Creek, Sturgeon Creek, and Red River) 
in 10 Kentucky counties: Breathitt, Clay, Harlan, Jackson, Knott, Lee, 
Leslie, Owsley, Perry, and Wolfe Counties (Thomas 2008, pp. 3-6; 
Service unpublished data). Populations in nine of these streams have 
been discovered or established since 2006. Current populations occur in 
the following Kentucky River sub-basins (and smaller watersheds):
     North Fork Kentucky River (Troublesome, Quicksand, Frozen, 
Holly, Lower Devil, Walker, and Hell Creek watersheds);
     Middle Fork Kentucky River (Big Laurel, Rockhouse, Hell 
For Certain Creek, and Squabble Creek watersheds);
     South Fork Kentucky River (Red Bird River, Hector Branch, 
and Goose, Bullskin, Buffalo, and Lower Buffalo Creek watersheds);
     Silver Creek;
     Sturgeon Creek (Travis, Wild Dog, and Granny Dismal Creek 
watersheds); and
     Red River (Rock Bridge Fork of Swift Camp Creek).
Population Estimates and Status
    The species' status in all streams of historical or recent 
occurrence is summarized in Table 1, below, which is organized by sub-
basin, beginning at the southeastern border (upstream end) of the basin 
(North Fork Kentucky River) and moving downstream. In this proposed 
rule, the term ``population'' is

[[Page 60967]]

used in a geographical context and not in a genetic context, and is 
defined as all individuals of the species living in one stream. Using 
the term in this way allows the status, trends, and threats to be 
discussed comparatively across streams where the species occurs. In 
using this term, we do not imply that the populations are currently 
reproducing and recruiting or that they are distinct genetic units. We 
considered populations of the Kentucky arrow darter as extant if live 
specimens have been observed or collected since 2006, and suitable 
habitat is present.
    We are using the following generalized sets of criteria to 
categorize the relative status of populations of 83 streams (74 
historical and 9 non-historical discovered or established since 2006) 
included in Table 1. The status of a population is considered 
``stable'' if: (1) There is little evidence of significant habitat loss 
or degradation, (2) darter abundance has remained relatively constant 
or increased during recent surveys, or (3) evidence of relatively 
recent recruitment has been documented since 2006. The status of a 
population is considered ``vulnerable'' if: (1) There is ample evidence 
of significant habitat loss or degradation since the species' original 
capture, (2) there is an obvious decreasing trend in abundance since 
the historical collection, or (3) no evidence of relatively recent 
recruitment (since 2006) has been documented. The status of a 
population is considered ``extirpated'' if: (1) All known suitable 
habitat has been destroyed or severely degraded; (2) no live 
individuals have been observed since 2006; or (3) live individuals have 
been observed since 2006, but habitat conditions do not appear to be 
suitable for reproduction to occur (e.g., elevated conductivity, 
siltation) and there is supporting evidence that the observed 
individuals are transients from another stream.

  Table 1--Kentucky Arrow Darter Status in All Streams of Historical (74) or Recent Occurrence \1\ (9; noted in
                                     bold) in the Upper Kentucky River Basin
----------------------------------------------------------------------------------------------------------------
                                                                                                       Date of
          Sub-basin                Sub-basin        Stream \1\          County       Current status      last
                                  tributaries                                                        observation
----------------------------------------------------------------------------------------------------------------
North Fork...................  Lotts Creek.....  Lotts Creek.....  Perry..........  Extirpated.....         1890
                                                 Left Fork.......  Knott..........  Extirpated.....         1890
                                                 Troublesome       Perry..........  Extirpated.....         1890
                                                  Creek.
                                                 Mill Creek......  Knott..........  Extirpated.....         1995
                                                 Laurel Fork (of   Knott..........  Extirpated.....         1995
                                                  Balls Fork).
                                                 Buckhorn Creek    Knott..........  Vulnerable.....         2011
                                                  (Prince Fork).
                                                 Eli Fork \1\....  Knott..........  Vulnerable.....         2011
                                                 Boughcamp Branch  Knott..........  Extirpated.....         2011
                                                 Coles Fork......  Breathitt,       Stable.........         2011
                                                                    Knott.
                                                 Snag Ridge Fork.  Knott..........  Stable.........         2008
                                                 Clemons Fork....  Breathitt......  Stable.........         2013
                                                 Millseat Branch.  Breathitt......  Extirpated.....         1976
                                                 Lewis Fork......  Breathitt......  Extirpated.....         1959
                                                 Long Fork.......  Breathitt......  Extirpated.....         1959
                                                 Bear Branch.....  Breathitt......  Extirpated.....         2015
                                                 Laurel Fork (of   Breathitt......  Extirpated.....         1976
                                                  Buckhorn).
                                                 Lost Creek......  Breathitt......  Extirpated.....         1997
                               Quicksand Creek.  Laurel Fork.....  Knott..........  Stable.........         2014
                                                 Baker Branch....  Knott..........  Extirpated.....         1994
                                                 Middle Fork.....  Knott..........  Stable.........         2013
                                                 Spring Fork \1\.  Breathitt......  Vulnerable.....         2013
                                                 Wolf Creek......  Breathitt......  Extirpated.....         1995
                                                 Hunting Creek...  Breathitt......  Vulnerable.....         2013
                                                 Leatherwood       Breathitt......  Extirpated.....         1982
                                                  Creek.
                                                 Bear Creek......  Breathitt......  Extirpated.....         1969
                                                 Smith Branch....  Breathitt......  Extirpated.....         1995
                               Frozen Creek....  Frozen Creek....  Breathitt......  Stable.........         2013
                                                 Clear Fork......  Breathitt......  Vulnerable.....         2008
                                                 Negro Branch....  Breathitt......  Vulnerable.....         2008
                                                 Davis Creek.....  Breathitt......  Vulnerable.....         2008
                                                 Cope Fork.......  Breathitt......  Extirpated.....         1995
                                                 Boone Fork......  Breathitt......  Extirpated.....         1998
                               Holly Creek.....  Holly Creek.....  Wolfe..........  Vulnerable.....         2007
                               Lower Devil       Lower Devil       Lee, Wolfe.....  Extirpated.....         1998
                                Creek.            Creek.
                                                 Little Fork \1\.  Lee, Wolfe.....  Vulnerable.....         2011
                               Walker Creek....  Walker Creek....  Lee, Wolfe.....  Stable.........         2013
                               Hell Creek......  Hell Creek......  Lee............  Vulnerable.....         2013
Middle Fork..................  Greasy Creek....  Big Laurel Creek  Harlan.........  Vulnerable.....         2009
                                                 Greasy Creek....  Leslie.........  Extirpated.....         1970
                               Cutshin Creek...  Cutshin Creek...  Leslie.........  Extirpated.....         1890
                               Middle Fork.....  Middle Fork.....  Leslie.........  Extirpated.....         1890
                               Rockhouse Creek.  Laurel Creek \1\  Leslie.........  Vulnerable.....         2013
                               Hell For Certain  Hell For Certain  Leslie.........  Stable.........         2013
                                Creek.            Creek.
                               Squabble Creek..  Squabble Creek..  Perry..........  Vulnerable.....         2015
South Fork...................  Red Bird River..  Blue Hole Creek.  Clay...........  Stable.........         2008
                                                 Upper Bear Creek  Clay...........  Stable.........         2013
                                                 Katies Creek....  Clay...........  Stable.........         2007
                                                 Spring Creek....  Clay...........  Stable.........         2007
                                                 Bowen Creek.....  Leslie.........  Stable.........         2009

[[Page 60968]]

 
                                                 Elisha Creek....  Leslie.........  Stable.........         2014
                                                 Gilberts Big      Clay, Leslie...  Stable.........         2013
                                                  Creek.
                                                 Sugar Creek \1\.  Clay, Leslie...  Stable.........         2008
                                                 Big Double Creek  Clay...........  Stable.........         2014
                                                 Little Double     Clay...........  Stable.........         2008
                                                  Creek.
                                                 Big Creek.......  Clay...........  Extirpated.....         1890
                                                 Jacks Creek.....  Clay...........  Vulnerable.....         2009
                                                 Hector Branch...  Clay...........  Extirpated.....         2015
                                                 Long Fork (of     Clay...........  Stable.........         2014
                                                  Hector Br.) \1\.
                               Goose Creek.....  Horse Creek.....  Clay...........  Vulnerable.....         2013
                                                 Laurel Creek....  Clay...........  Extirpated.....         1970
                               Bullskin Creek..  Bullskin Creek..  Clay, Leslie...  Vulnerable.....         2014
                               Buffalo Creek...  Laurel Fork.....  Owsley.........  Stable.........         2014
                                                 Cortland Fork     Owsley.........  Vulnerable.....         2014
                                                  \1\.
                                                 Lucky Fork......  Owsley.........  Stable.........         2014
                                                 Left Fork.......  Owsley.........  Stable.........         2014
                                                 Right Fork......  Owsley.........  Vulnerable.....         2009
                                                 Buffalo Creek...  Owsley.........  Vulnerable.....         1969
                               Sexton Creek....  Bray Creek......  Clay...........  Extirpated.....         1997
                                                 Robinsons Creek.  Clay...........  Extirpated.....         1997
                                                 Sexton Creek....  Owsley.........  Extirpated.....         1978
                               Lower Island      Lower Island      Owsley.........  Extirpated.....         1997
                                Creek.            Creek.
                               Cow Creek.......  Right Fork Cow    Owsley.........  Extirpated.....         1997
                                                  Creek.
                               Buck Creek......  Buck Creek......  Owsley.........  Extirpated.....         1978
                               Lower Buffalo     Lower Buffalo     Lee, Owsley....  Vulnerable.....         2007
                                Creek.            Creek.
Silver Creek.................                                      Lee............  Vulnerable.....         2008
Sturgeon Creek...............                    Travis Creek \1\  Jackson........  Vulnerable.....         2008
                                                 Brushy Creek....  Jackson, Owsley  Extirpated.....         1996
                                                 Little Sturgeon   Owsley.........  Extirpated.....         1996
                                                  Creek.
                                                 Wild Dog Creek..  Jackson, Owsley  Stable.........         2007
                                                 Granny Dismal     Lee, Owsley....  Vulnerable.....         2013
                                                  Creek \1\.
                                                 Cooperas Cave     Lee............  Extirpated.....         1996
                                                  Branch.
                                                 Sturgeon Creek..  Lee............  Extirpated.....         1998
Red River....................  Swift Camp Creek  Rockbridge Fork.  Wolfe..........  Vulnerable.....         2013
----------------------------------------------------------------------------------------------------------------
\1\ Non-historical occurrence discovered or established since 2006.

    From 2007-2012, the Service, KSNPC, and KDFWR conducted a status 
review for the Kentucky arrow darter (Thomas 2008, pp. 1-33; Service 
2012, pp. 1-4). Surveys were conducted qualitatively using single-pass 
electrofishing techniques (Smith-Root backpack electrofishing unit) 
within an approximate 100-m (328-ft) reach. During these efforts, fish 
surveys were conducted at 69 of 74 historical streams, 103 of 119 
historical sites, and 40 new (non-historical) sites (sites correspond 
to individual sampling reaches and more than one may be present on a 
given stream). Kentucky arrow darters were observed at 36 of 69 
historical streams (52 percent), 53 of 103 historical sites (52 
percent), and 4 of 40 new sites (10 percent). New sites were 
specifically selected based on habitat suitability and the availability 
of previous collection records (sites lacking previous collections were 
chosen).
    From June to September 2013, KSNPC and the Service initiated a 
study that included quantitative surveys at 80 randomly chosen sites 
within the species' historical range (Service unpublished data). 
Kentucky arrow darters were observed at only seven sites, including two 
new localities (Granny Dismal Creek in Owsley County and Spring Fork 
Quicksand Creek in Breathitt County) and one historical stream (Hunting 
Creek, Breathitt County) where the species was not observed during 
status surveys by Thomas (2008, pp. 1-33) and Service (2012, pp. 1-4).
    During 2014-2015, additional qualitative surveys (single-pass 
electrofishing) were completed at over 20 sites within the basin. 
Kentucky arrow darters were observed in Bear Branch, Big Double Creek, 
Big Laurel Creek, Bullskin Creek, Clemons Fork, Coles Fork, Cortland 
Fork, Laurel Fork Buffalo Creek, and Squabble Creek. Based on the poor 
habitat conditions observed in Bear Branch (e.g., elevated 
conductivity, siltation, and embedded substrates) and its close 
proximity to Robinson Forest, we suspect that the few individuals 
observed in Bear Branch were transients originating from Clemons Fork.
    Based on historical records and survey data collected at over 200 
sites since 2006, the Kentucky arrow darter has declined significantly 
rangewide and has been eliminated from large portions of its former 
range, including 36 of 74 historical streams (Figure 2) and large 
portions of the basin that would have been occupied historically by the 
species (Figure 3). Forty-four percent of the species' extirpations (16 
streams) have occurred since the mid-1990s, and the species has 
disappeared completely from several watersheds (e.g., Sexton Creek, 
South Fork Quicksand Creek, Troublesome Creek headwaters). Of the 
species' 47 extant streams, we consider half of these populations (23) 
to be ``vulnerable'' (Table 1), and most remaining populations are 
isolated and restricted to short stream reaches.
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    A synopsis of the Kentucky arrow darter's current range and status 
is provided below and is arranged by sub-basin, starting at the 
southeastern border (upstream end) of the basin and moving downstream. 
Within each sub-basin, smaller watersheds and streams are addressed in 
a hierarchical fashion (follows the order used in Table 1).

North Fork Kentucky River Sub-Basin

    The North Fork Kentucky River arises in eastern Letcher County, 
Kentucky, near Pine Mountain and flows generally northwest for 
approximately 270 km (168 mi) to its confluence with the South Fork 
Kentucky River. Its watershed encompasses approximately 4,877 km\2\ 
(1,883 mi\2\) in portions of Breathitt, Knott, Lee, Letcher, Perry, and

[[Page 60971]]

Wolfe counties. The Kentucky arrow darter was known historically from 
33 streams in this sub-basin; we now consider the species to be extant 
in 17 streams (Thomas 2008, pp. 5-6; KSNPC unpublished data; Service 
unpublished data).
    Lotts Creek--Lotts Creek is a tributary of the North Fork Kentucky 
River that flows westerly through east-central Perry County and 
southwestern Knott County. The Kentucky arrow darter was first reported 
from Lotts Creek by Woolman (1892, pp. 275-281), who described it as 
uncommon in the stream. No additional records are available from the 
Lotts Creek watershed, and our most recent survey (2009) was also 
unsuccessful (Service 2012, pp. 1-4). Based on the stream's poor 
habitat conditions (e.g., conductivity greater than 1,000 micro Siemens 
([micro]S)/cm, embedded substrates) and the lack of species records 
over the last 125 years (Service 2012, pp. 1-4), we do not consider the 
species to be extant within the Lotts Creek watershed.
    Troublesome Creek--Troublesome Creek is a tributary of the North 
Fork Kentucky River draining portions of Breathitt, Knott, and Perry 
Counties. Historically, the Kentucky arrow darter was known from 16 
streams in the Troublesome Creek watershed (Table 1) (Woolman 1892, pp. 
275-281; Kuehne and Bailey 1961, pp. 3-4; Kuehne 1962, pp. 608-614; 
Harker et al. 1979, pp. 523-761; Measel 1997, pp. 8-11, 59; KSNPC 
unpublished data). The species has been eliminated from the upper 
reaches of Troublesome Creek, portions of the Buckhorn Creek watershed, 
and Lost Creek, but populations continue to occur in the upper Buckhorn 
Creek watershed, specifically Clemons Fork, Coles Fork, Snag Ridge 
Fork, Buckhorn Creek (headwaters, including Prince Fork), and Eli Fork 
(of Boughcamp Branch). The best remaining populations occur in Clemons 
Fork and Coles Fork, both tributaries of Buckhorn Creek that are 
located on Robinson Forest, a 59.9-km\2\ (14,800-acre (ac)) 
experimental forest owned and managed by the University of Kentucky 
(UK). These watersheds are intact and densely forested, with only minor 
interruption by logging roads. Both streams are moderate- to high-
gradient, cool, and dominated by cobble, boulder, and bedrock 
substrates. The species has been extirpated from most downstream 
tributaries of Buckhorn Creek (e.g., Long Fork) and most of the 
Buckhorn Creek mainstem; however, individuals are sometimes observed in 
these tributaries (e.g., Bear Branch, Boughcamp Branch) or the Buckhorn 
Creek mainstem where these habitats are located close to occupied 
reaches. A small population continues to persist (and reproduce) within 
the Buckhorn Creek headwaters (Prince Fork and Eli Fork), but these 
watersheds are isolated from downstream populations due to severely 
degraded habitat and water quality conditions in the Buckhorn Creek 
mainstem and adjacent tributaries (Appalachian Technical Services (ATS) 
2011, pp. 1-17). Surface coal mining has been practiced extensively 
within the Troublesome Creek watershed, and these activities continue 
to occur. A 10.9-km (6.8-mi) reach of Buckhorn Creek has been placed on 
Kentucky's 303(d) list of impaired waters due to siltation and elevated 
levels of total dissolved solids (KDOW 2013a, p. 341) and reported to 
the Environmental Protection Agency pursuant to section 303 of the 1972 
Clean Water Act (33 U.S.C. 1251 et seq.)
    Quicksand Creek--Quicksand Creek is a tributary of the North Fork 
Kentucky River that drains portions of Breathitt and Knott Counties. 
The Kentucky arrow darter was known from nine historical streams in the 
watershed (Table 1) (Harker et al. 1979, pp. 576-590; KSNPC unpublished 
data). The species has been extirpated from five of these streams 
(e.g., Leatherwood Creek), but extant populations remain in Laurel 
Fork, Middle Fork, Spring Fork, and Hunting Creek. Laurel Fork and 
Middle Fork support the best remaining populations. Both of these 
watersheds are sparsely populated and forested, with favorable water 
quality and habitat conditions for the species. The small Spring Fork 
population was discovered in 2013, and appears to be limited to an 
approximate 1.6-km (1-mi) headwater reach. Habitat conditions in Spring 
Fork are marginal for the species (e.g., heavy siltation, bank 
erosion), and instream conductivity is elevated (334 [micro]S/cm). The 
species was first observed in Hunting Creek in July 1995 (six 
individuals observed), but the species was not observed during surveys 
by KDFWR in May 2007 (Thomas 2008, p. 5). Surveys by the Service in 
September 2013 produced four individuals, but habitat conditions 
continue to be marginal for the species. Based on these factors, we 
consider the Hunting Creek population to be vulnerable to extirpation.
    Frozen Creek--Frozen Creek is a tributary of the North Fork 
Kentucky River in northern Breathitt County. The Kentucky arrow darter 
was known historically from six streams in the Frozen Creek watershed: 
Frozen Creek (headwaters), Clear Fork, Negro Branch, Davis Creek, Cope 
Fork, and Boone Fork (Kornman 1999, pp. 118-133; KSNPC unpublished 
data). Thomas (2008, p. 5) revisited these sites in 2007 and 2008, and 
determined that the species was extant in four streams: Frozen Creek, 
Clear Fork, Negro Branch, and Davis Creek. The most individuals were 
observed in Frozen Creek, which also contained the most favorable 
habitat conditions for the species. The species was less abundant in 
Clear Fork, Negro Branch, and Davis Creek, and habitat conditions were 
marginal (e.g., extensive bedrock areas, substrates covered by thick 
layer of algae). Thomas (2008, pp. 5, 31-32) did not observe the 
species in Cope Fork or Boone Fork, both of which exhibited poor 
habitat and water quality conditions (e.g., siltation, elevated 
conductivity). Sedimentation continues to be a problem in the Frozen 
Creek watershed (KDOW 2013a, p. 329), and a 3.1-km (1.9-mi) reach of 
Cope Fork has been placed on Kentucky's 303(d) list of impaired waters 
due to elevated levels of total dissolved solids (e.g., elevated 
conductivity) (KDOW 2013a, p. 345).
    Holly Creek--Holly Creek is a tributary of the North Fork Kentucky 
River in southern Wolfe County. Kentucky arrow darters were first 
observed in Holly Creek (one individual) in 1998 (Kornman 1999, pp. 
118-133). Thomas (2008, p. 5) revisited the historical site in 2007, 
and observed two individuals. Despite the species' presence, habitat 
conditions in portions of the watershed continue to be poor, and a 10-
km (6.2-mi) reach (RM 0-6.2) of Holly Creek has been placed on 
Kentucky's 303(d) list of impaired streams due to sedimentation from 
agriculture, stream bank modification, and riparian habitat loss (KDOW 
2013a, p. 351). Based on these factors and the population's apparent 
small size, we consider the Holly Creek population to be vulnerable to 
extirpation.
    Lower Devil Creek--Lower Devil Creek is a direct tributary of the 
North Fork Kentucky River in southern Wolfe County. The Kentucky arrow 
darter was first reported from Lower Devil Creek by Kornman (1999, pp. 
118-133), who collected one individual in 1998. The species was not 
observed during subsequent surveys in 2007 and 2011 (Thomas 2008, pp. 
5; Service unpublished data). Thomas (2008, p. 5) reported a new record 
for the watershed based on the collection of one specimen from Little 
Fork, a tributary to Lower Devil Creek. We observed an additional 
specimen during surveys in 2011. We consider the Little Fork population 
to be vulnerable to extirpation due to its apparent small population 
size and the stream's elevated conductivity (approximately 400 
[micro]S/cm).

[[Page 60972]]

    Walker Creek--Walker Creek is a direct tributary of the North Fork 
Kentucky River in eastern Lee County. First discovered in 1996 (KSNPC 
unpublished data), this population continues to be relatively robust. 
The species was observed at all historical sites and one new site 
during surveys completed in 2008 and 2013 (KSNPC and Service 
unpublished data). Conductivity values continue to be high in 
downstream reaches (approximately 400 [micro]S/cm), but these 
conditions do not appear to have reduced Kentucky arrow darter numbers. 
Historical land use within the Walker Creek watershed was dominated by 
oil and gas development/drilling, which may explain the elevated 
conductivity values observed during recent surveys.
    Hell Creek--Hell Creek is a direct tributary of the North Fork 
Kentucky River in eastern Lee County. The species was first observed in 
Hell Creek (two individuals) in August 1995 (KSNPC unpublished data), 
followed by observations by Kornman (1999, pp. 118-133) in 1998 (two 
individuals) and Thomas (2008, p. 5) in 2007 (seven individuals). 
Surveys by KDFWR in July 2014 suggest a possible decline of the 
population in Hell Creek (Thomas 2014, pers. comm.). Kentucky arrow 
darters appeared to be less abundant (only two individuals observed 
despite exhaustive searches), and habitat conditions within Hell Creek 
had deteriorated (siltation was prominent) compared to previous surveys 
(Thomas 2014, pers. comm.).

Middle Fork Kentucky River Sub-Basin

    The Middle Fork Kentucky River arises in southern Leslie County, 
Kentucky, near Pine Mountain and flows generally north for 
approximately 169 km (105 mi) to its confluence with the North Fork 
Kentucky River. Its watershed encompasses approximately 1,448 km\2\ 
(559 mi\2\) in portions of Breathitt, Harlan, Lee, Leslie, and Perry 
counties. The Kentucky arrow darter was formerly known from seven 
widely scattered stream segments in the sub-basin. We now consider the 
species to be extant in four of these streams (Thomas 2008, pp. 4-5; 
Service unpublished data).
    Greasy Creek--Greasy Creek is a tributary of the Middle Fork 
Kentucky River that drains southern Leslie county and a small portion 
of northern Harlan County. The Kentucky arrow darter is known from two 
historical streams within the watershed--Greasy Creek and Big Laurel 
Creek, a direct tributary of Greasy Creek (Branson and Batch 1984, pp. 
4-8; KSNPC unpublished data). The species is presumed extirpated from 
the Greasy Creek mainstem, but a small population remains in Big Laurel 
Creek based on collections completed in 2009 (Service 2012, pp. 1-4). 
We consider the Big Laurel Creek population to be vulnerable to 
extirpation due to sedimentation, channel instability, and elevated 
conductivity.
    Cutshin Creek--Cutshin Creek is a tributary of the Middle Fork 
Kentucky River draining southeastern Leslie County. The species was 
first reported from Cutshin Creek by Woolman (1892, pp. 275-281), who 
observed the species 4.8 km (3 mi) upstream of the Cutshin Creek and 
Middle Fork confluence. Branson and Batch (1984, pp. 4-8) made the only 
other observation of the species in Cutshin Creek. They collected one 
specimen at the KY 80 crossing in June 1973. The species has not been 
observed in Cutshin Creek since that time.
    Middle Fork--Woolman (1892, pp. 275-281) observed the species in 
the Middle Fork mainstem during surveys completed 6.4 km (4 mi) north 
of Hyden in August 1890. The species has not been observed in the 
Middle Fork since that time. Based on the size of the Middle Fork at 
this location (fourth- or fifth-order), it is likely that the 
specimen(s) observed by Woolman originated from a nearby tributary such 
as Hell For Certain Creek.
    Rockhouse Creek--Rockhouse Creek is a tributary of Middle Fork 
Kentucky River in central Leslie County. In March 2013, biologists with 
KDFWR and DBNF discovered an unknown population of Kentucky arrow 
darter in Laurel Creek, a second-order tributary of Rockhouse Creek 
(Thomas 2013, pers. comm.). One individual was found in Laurel Creek 
after surveys in three separate reaches (over 4,000 shocking seconds). 
Laurel Fork is situated at the western edge of the Middle Fork sub-
basin, and about 90 percent of its watershed is located within the DBNF 
(Redbird Ranger District).
    Hell For Certain Creek--Hell For Certain Creek is a direct, second-
order tributary to the Middle Fork Kentucky River in northern Leslie 
County (upstream of Buckhorn Lake). Kentucky arrow darters were first 
recorded from Hell For Certain Creek in 1994 (KSNPC unpublished data), 
and subsequent surveys in 2011 and 2013 produced additional specimens 
(Service unpublished data). The Hell For Certain Creek population 
appears to be at least moderately robust, and water quality and habitat 
conditions are favorable for the species. About 50 percent of the Hell 
For Certain Creek watershed is in public ownership (DBNF).
    Squabble Creek--Squabble Creek is a tributary to Middle Fork 
Kentucky River in northwestern Perry County. Squabble Creek enters the 
Middle Fork just downstream of Buckhorn Lake Dam in the community of 
Buckhorn. Kentucky arrow darters were first reported from Squabble 
Creek in 1996, when KSNPC biologists observed one individual from a 
small bedrock pool in the headwaters (KSNPC unpublished data). Thomas 
(2008, p. 25) resurveyed the historical collection site in 2008 but did 
not observe the species. Thomas (2008, p. 25) noted that sedimentation 
was ``heavy'' in the stream. We observed similar habitat conditions 
during recent surveys of Squabble Creek in February 2015, but two 
juvenile Kentucky arrow darters were observed near the historical 
collection site. Conductivity levels continue to be relatively low in 
the headwaters (130 [micro]S/cm), but siltation/sedimentation remains a 
concern and residential land use continues to be extensive in the 
downstream half of the watershed. About 10 percent of the watershed is 
in Federal ownership (DBNF). Sedimentation and total dissolved solids 
have been identified as problems within Squabble Creek, as evidenced by 
the stream's placement on Kentucky's 303(d) list of impaired waters 
(KDOW 2013a, p. 368).

South Fork Kentucky River Sub-Basin

    The South Fork Kentucky River is formed by the confluence of Goose 
Creek and the Red Bird River in northern Clay County, Kentucky, and 
flows north for approximately 72 km (45 mi) to its confluence with the 
North Fork Kentucky River. Its watershed encompasses approximately 
1,937 km\2\ (748 mi\2\) in portions of Bell, Clay, Jackson, Knox, Lee, 
Leslie, and Owsley counties. Historically, the Kentucky arrow darter 
was known from 28 streams in this sub-basin. The species has been 
extirpated from several watersheds (total of 9 streams) and is now 
considered to be extant in 20 streams (Thomas 2008, p. 4; KSNPC and 
Service unpublished data).
    Red Bird River--The Red Bird River is a tributary of the South Fork 
Kentucky River that flows northerly through portions of Bell, Clay, and 
Leslie Counties. Historically, Kentucky arrow darters were known from 
12 streams within the watershed (Woolman 1892, pp. 275-281; Branson and 
Batch 1983, pp. 2-13; KSNPC and Service unpublished data). The species 
has been extirpated from two streams, Big Creek and Hector Branch, but 
the Red Bird River watershed continues to support the largest 
concentration of occupied streams and some of the species' best 
remaining populations. We have recent records from Blue Hole Creek, 
Upper

[[Page 60973]]

Bear Creek, Katies Creek, Spring Creek, Bowen Creek, Elisha Creek, 
Gilberts Big Creek, Sugar Creek, Big Double Creek, Little Double Creek, 
Jacks Creek, and Long Fork (of Hector Branch). Public ownership in 
these watersheds is extensive (Redbird Ranger District of DBNF), and 
the streams generally have intact riparian zones with little or no 
anthropogenic disturbance, cool temperatures, low conductivity (near 
baseline conditions of less than 100 [micro]S/cm), and stable channels 
with clean cobble/boulder substrates. The presence of the species in 
Long Fork (of Hector Branch) is the result of a reintroduction effort 
by KDFWR and Conservation Fisheries, Inc. (CFI), of Knoxville, 
Tennessee (Thomas et al. 2014, p. 23).
    Goose Creek--Goose Creek is a tributary of the South Fork Kentucky 
River that drains portions of southern and western Clay County and 
northeastern Knox County. Goose Creek flows northerly through these 
counties, joining with the Red Bird River at Oneida to create the South 
Fork Kentucky River. The Kentucky arrow darter was known historically 
from two Goose Creek tributaries: Horse Creek and Laurel Creek (Branson 
and Batch 1983, pp. 1-15). A small population continues to exist in 
Horse Creek, but the species has not been observed in Laurel Creek 
since 1970 (Service unpublished data). Habitat conditions in both 
streams are marginal to poor (Thomas 2008, p. 4), and both streams have 
been placed on Kentucky's 303(d) list of impaired waters (KDOW 2013a, 
pp. 352-353).
    Bullskin Creek--Bullskin Creek is a tributary to the South Fork 
Kentucky River that drains eastern Clay County. The Kentucky arrow 
darter was first reported from Bullskin Creek in August 1998, when 
Stephens (1999, pp. 159-174) collected one individual. Additional 
specimens were observed by KDFWR and the Service in 2007 and 2014, 
respectively (Thomas 2008, p. 27; Service unpublished data).
    Buffalo Creek--Buffalo Creek is a tributary to the South Fork 
Kentucky River that drains southeastern Owsley County. Since 1969, the 
Kentucky arrow darter has been reported from multiple stream reaches in 
both the Left and Right Forks (Branson and Batch 1983, pp. 1-15; KSNPC 
and Service unpublished data). The species continues to be extant in 
both forks, and the upstream reaches of the Left Fork (Laurel Fork, 
Cortland Fork, and Lucky Fork) appear to be the species' stronghold 
within the watershed. Public ownership (DBNF) is extensive within the 
drainage.
    Sexton Creek--Sexton Creek is a tributary to the South Fork 
Kentucky River that drains portions of Clay, Jackson, and Owsley 
Counties. Historically, the Kentucky arrow darter was reported from 
Bray Creek, Robinsons Creek, and the Sexton Creek mainstem (Branson and 
Batch 1983, pp. 1-15; KSNPC unpublished data). The species has not been 
observed in the Sexton Creek watershed since 1997, and now appears to 
be extirpated.
    Lower Island Creek--Lower Island Creek is a tributary to the South 
Fork Kentucky River that drains southwestern Owsley County. The 
Kentucky arrow darter was first reported from Lower Island Creek in 
1997 (KSNPC unpublished data), but repeated surveys in the watershed 
have failed to produce additional specimens (Thomas 2008, p. 27; 
Service unpublished data). The species is now considered to be 
extirpated from the Lower Island Creek watershed.
    Cow Creek--Cow Creek is a tributary to the South Fork Kentucky 
River that drains eastern Owsley County. The Kentucky arrow darter was 
first reported from the watershed in June 1993, when Burr and Cook 
(1993, pp. 55-56) observed two specimens in the headwaters of Right 
Fork Cow Creek near the community of Arnett. KSNPC surveyed the 
historical site again in 1997, and observed one individual (KSNPC 
unpublished data). Surveys by the Service in 2009 and 2011 did not 
produce additional specimens (Service 2012, pp. 1-4). The species is 
now considered to be extirpated from the Cow Creek watershed.
    Buck Creek--Buck Creek is a tributary to the South Fork Kentucky 
River in northern Owsley County. The species was first reported from 
the Buck Creek watershed by Harker et al. (1979, pp. 656-671), who 
observed one individual in October 1978. Additional surveys were 
completed in May 2008 and June 2011, but the species was not observed 
(Service 2012, pp. 1-4). Based on our recent surveys, habitat 
conditions appear to be unfavorable for the species (e.g., conductivity 
greater than 400 [micro]S/cm).
    Lower Buffalo Creek--Lower Buffalo Creek is a tributary to the 
South Fork Kentucky River in Lee and Owsley Counties. The Kentucky 
arrow darter was first reported from Lower Buffalo Creek by Stephens 
(1999, pp. 159-174), who observed one individual in August 1998. Thomas 
(2008, p. 4) observed three individuals in May 2007, but described the 
habitat conditions as poor, with heavy siltation and eutrophication. 
Based on observations made by Thomas (2008, p. 4), we consider the 
Lower Buffalo Creek population to be vulnerable to extirpation.

Silver Creek Sub-Basin

    Silver Creek is a tributary to the Kentucky River that drains 
approximately 8.5 km\2\ (3.3 mi\2\) in central Lee County, Kentucky. 
The Kentucky arrow darter was first recorded from Silver Creek in 1996, 
when KSNPC observed 10 individuals (2 age classes) near the city limits 
of Beattyville (KSNPC unpublished data). Thomas (2008, p. 31) surveyed 
the historical site again in May 2008, and observed one specimen. A 
small population appears to be extant in Silver Creek, but we consider 
this population to be vulnerable to extirpation.

Sturgeon Creek Sub-Basin

    Sturgeon Creek is a tributary to the Kentucky River that flows 
northerly through Jackson, Lee, and Owsley Counties, draining 
approximately 287 km\2\ (111 mi\2\). The Kentucky arrow darter was 
known historically from five streams within this sub-basin: Brushy 
Creek, Cooperas Cave Branch, Little Sturgeon Creek, Sturgeon Creek 
(mainstem), and Wild Dog Creek (Harker et al. 1979, pp. 607-623; Ray 
and Ceas 2003, pp. 12-13; KSNPC unpublished data). We now consider the 
species to be extant in one historical stream, Wild Dog Creek, and two 
recently documented streams, Granny Dismal Creek and Travis Creek 
(KSNPC and Service unpublished data). Wild Dog Creek appears to support 
the most robust population within this sub-basin.

Red River Sub-Basin

    The Red River is a tributary of the Kentucky River that arises in 
eastern Wolfe County, Kentucky, and flows generally west for 
approximately 156 km (97 mi) through portions of Clark, Estill, 
Menifee, Powell, and Wolfe Counties. The Red River watershed 
encompasses approximately 1,261 km\2\ (487 mi\2\). The Kentucky arrow 
darter was not observed within the sub-basin until 1980, when one 
individual was collected from the Swift Camp Creek watershed in Wolfe 
County (Greenberg and Steigerwald 1981, p. 37).
    Swift Camp Creek--Swift Camp Creek is a tributary to the Red River 
that flows northerly through northwestern Wolfe County. The Kentucky 
arrow darter was known historically from only one Swift Camp Creek 
tributary: Rockbridge Fork (Greenberg and Steigerwald 1981, p. 37). 
Additional surveys by KDFWR and the Service in 1998, 2007, 2011, and 
2013 demonstrate that the species continues to occur in Rockbridge Fork 
(Kornman

[[Page 60974]]

1985, p. 28; Thomas 2008, p. 4; Service unpublished data). Despite its 
location in the DBNF, bank erosion and siltation continue to be 
problematic in the watershed (Thomas 2008, p. 4).
    Our recent survey data (Thomas 2008, pp. 25-27; Service 2012, pp. 
1-4) indicate that Kentucky arrow darters occur in low densities. 
Sampling reaches where arrow darters were observed had an average of 
only 3 individuals per 100-m (328-ft) reach and a median of 2 
individuals per reach (range of 1 to 10 individuals). Surveys in 2011 
by the DBNF from Laurel Fork and Cortland Branch of Left Fork Buffalo 
Creek (South Fork Kentucky River sub-basin) produced slightly higher 
capture rates (an average of 5 darters per 100-m (328-ft) sampling 
reach) (Mulhall 2014, pers. comm.). The low abundance values (compared 
to other darters) are not surprising since Kentucky arrow darters 
generally occur in low densities, even in those streams where 
disturbance has been minimal (Thomas 2015b, pers. comm.).
    Detailed information on population size is generally lacking for 
the species, but estimates have been completed for three streams: 
Clemons Fork (Breathitt County), Elisha Creek (Clay and Leslie 
Counties), and Gilberts Big Creek (Clay and Leslie Counties) (Service 
unpublished data). Based on field surveys completed in 2013 by EKU, 
KSNPC, and the Service, population estimates included 986-2,113 
individuals (Clemons Fork), 592-1,429 individuals (Elisha Creek), and 
175-358 individuals (Gilberts Big Creek) (ranges reflect 95 percent 
confidence intervals).
    Based on observed catch rates and habitat conditions throughout the 
upper Kentucky River basin, the most stable and largest populations of 
the Kentucky arrow darter appear to be located in the following 
streams:
     Hell For Certain Creek, Leslie County;
     Laurel and Middle Forks of Quicksand Creek, Knott County;
     Frozen and Walker Creeks, Breathitt and Lee Counties;
     Clemons Fork and Coles Fork, Breathitt and Knott Counties;
     Several direct tributaries (e.g., Bowen Creek, Elisha 
Creek, and Big Double Creek) of the Red Bird River, Clay and Leslie 
Counties; and
     Wild Dog Creek, Jackson and Owsley Counties.
    The Kentucky arrow darter is considered ``threatened'' by the State 
of Kentucky and has been ranked by KSNPC as a G2G3/S2S3 species 
(imperiled or vulnerable globally and imperiled or vulnerable within 
the State) (KSNPC 2014, p. 40). Kentucky's Comprehensive Wildlife 
Conservation Strategy (KDFWR 2013, pp. 9-11) identified the Kentucky 
arrow darter as a Species of Greatest Conservation Need (rare or 
declining species that requires conservation actions to improve its 
status).

Summary of Factors Affecting the Species

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

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

    The Kentucky arrow darter's habitat and range have been destroyed, 
modified, and curtailed due to a variety of anthropogenic activities in 
the upper Kentucky River drainage. Resource extraction (e.g., coal 
mining, logging, oil/gas well development), land development, 
agricultural activities, and inadequate sewage treatment have all 
contributed to the degradation of streams within the range of the 
species (Branson and Batch 1972, pp. 513-516; Branson and Batch 1974, 
pp. 82-83; Thomas 2008, pp. 6-7; KDOW 2010, pp. 70-84; KDOW 2013a, pp. 
189-214, 337-376; KDOW 2013b, pp. 88-94). These land use activities 
have led to chemical and physical changes to stream habitats that have 
adversely affected the species. Specific stressors have included inputs 
of dissolved solids and elevation of instream conductivity, 
sedimentation/siltation of stream substrates (excess sediments 
deposited in a stream), turbidity, inputs of nutrients and organic 
enrichment, and elevation of stream temperatures (KDOW 2010, p. 84; 
KDOW 2013a, pp. 189-214, 337-376). KDOW (2013a, pp. 337-376) provided a 
summary of specific threats within the upper Kentucky River drainage, 
identifying impaired reaches in 21 streams within the Kentucky arrow 
darter's historical range (Table 2). Six of these streams continue to 
support populations of the species, but only one of these populations 
(Frozen Creek) is considered to be stable (see Table 1, above).

   Table 2--Summary of 303(d) Listed Stream Segments Within the Historical Range of the Kentucky Arrow Darter
                                            [KDOW 2013a, pp. 337-376]
----------------------------------------------------------------------------------------------------------------
                                                          Impacted stream
            Stream                      County          segment  (km (mi))   Pollutant source      Pollutant
----------------------------------------------------------------------------------------------------------------
Buckhorn Creek................  Breathitt.............               0-6.8  Abandoned Mine     Fecal Coliform
                                                                             Lands, Unknown     (FC), Sediment/
                                                                             Sources.           Siltation, Total
                                                                                                Dissolved Solids
                                                                                                (TDS).
Cope Fork (of Frozen Creek)...  Breathitt.............               0-1.9  Channelization,    Sediment/
                                                                             Riparian Habitat   Siltation, TDS.
                                                                             Loss, Logging,
                                                                             Agriculture,
                                                                             Stream Bank
                                                                             Modification,
                                                                             Surface Coal
                                                                             Mining.
Cutshin Creek.................  Leslie................            9.7-10.7  Riparian Habitat   Sediment/
                                                                             Loss, Stream       Siltation.
                                                                             Bank
                                                                             Modification,
                                                                             Surface Coal
                                                                             Mining.
Frozen Creek *................  Breathitt.............              0-13.9  Riparian Habitat   Sediment/
                                                                             Loss, Post-        Siltation.
                                                                             Development
                                                                             Erosion and
                                                                             Sedimentation.
Goose Creek...................  Clay..................               0-8.3  Septic Systems...  FC.

[[Page 60975]]

 
Hector Branch.................  Clay..................               0-5.5  Unknown..........  Unknown.
Holly Creek *.................  Wolfe.................               0-6.2  Agriculture,       Sediment/
                                                                             Riparian Habitat   Siltation,
                                                                             Loss, Stream       Unknown.
                                                                             Bank
                                                                             Modification,
                                                                             Surface Coal
                                                                             Mining.
Horse Creek *.................  Clay..................               0-8.3  Riparian Habitat   Sediment/
                                                                             Loss, Managed      Siltation.
                                                                             Pasture Grazing,
                                                                             Surface Coal
                                                                             Mining.
Laurel Creek..................  Clay..................             3.8-4.8  Managed Pasture    Nutrients/
                                                                             Grazing, Crop      Eutrophication.
                                                                             Production.
Left Fork Island Creek........  Owsley................               0-5.0  Crop Production..  Sediment/
                                                                                                Siltation.
Long Fork.....................  Breathitt.............               0-4.6  Surface Coal       Sediment/
                                                                             Mining.            Siltation, TDS.
Lost Creek....................  Breathitt.............               0-8.9  Coal Mining,       Fecal Coliform,
                                                                             Riparian Habitat   Sedimentation,
                                                                             Loss, Logging,     Total Dissolved
                                                                             Stream Bank        Solids,
                                                                             Modification.      Turbidity.
Lotts Creek...................  Perry.................      0.4-1.0, 1.2-6  Riparian Habitat   Sediment/
                                                                             Loss, Land         Siltation, TDS,
                                                                             Development,       Turbidity.
                                                                             Surface Coal
                                                                             Mining, Logging,
                                                                             Stream Bank
                                                                             Modification.
Quicksand Creek...............  Breathitt.............   0-17.0, 21.7-30.8  Surface Coal       FC, Turbidity,
                                                                             Mining, Riparian   Sediment/
                                                                             Habitat Loss,      Siltation, TDS.
                                                                             Logging, Stream
                                                                             Bank
                                                                             Modification.
Sexton Creek..................  Clay, Owsley..........              0-17.2  Crop Production,   Sediment/
                                                                             Highway/Road/      Siltation, TDS.
                                                                             Bridge Runoff.
South Fork Quicksand Creek....  Breathitt.............              0-16.9  Riparian Habitat   Sediment/
                                                                             Loss, Petroleum/   Siltation, TDS.
                                                                             Natural Gas
                                                                             Production
                                                                             Activities,
                                                                             Surface Coal
                                                                             Mining.
Spring Fork (Quicksand Creek)   Breathitt.............             3.1-6.9  Abandoned Mine     Sediment/
 *.                                                                          Lands              Siltation, TDS,
                                                                             (Inactive),        Turbidity.
                                                                             Riparian Habitat
                                                                             Loss, Logging,
                                                                             Stream Bank
                                                                             Modification.
Squabble Creek *..............  Perry.................               0-4.7  Land Development,  Sediment/
                                                                             Surface Coal       Siltation, TDS.
                                                                             Mining.
Sturgeon Creek................  Lee...................            8.0-12.2  Riparian Habitat   Sediment/
                                                                             Loss, Crop         Siltation.
                                                                             Production,
                                                                             Surface Coal
                                                                             Mining.
Swift Camp Creek..............  Wolfe.................              0-13.9  Unknown..........  Unknown.
Troublesome Creek.............  Breathitt.............              0-45.1  Surface Coal       Sediment/
                                                                             Mining,            Siltation,
                                                                             Municipal Point    Specific
                                                                             Source             Conductance,
                                                                             Discharges,        TDS, Turbidity.
                                                                             Petroleum/
                                                                             Natural Gas
                                                                             Activities.
----------------------------------------------------------------------------------------------------------------
* Stream segment still occupied by Kentucky arrow darters.

Water Quality Degradation
    A threat to the Kentucky arrow darter is water quality degradation 
caused by a variety of nonpoint-source pollutants (contaminants from 
many diffuse and unquantifiable sources). Within the upper Kentucky 
River drainage, coal mining has been the most significant historical 
source of these pollutants, and it continues to be practiced throughout 
the drainage. As of January 2015, 318 mining permits were associated 
with coal removal and production activities within the upper Kentucky 
River drainage (Laird 2015, pers. comm.). Of these, 136 permits were 
associated with active coal removal, encompassing a combined area of 
777 km\2\ (191,968 ac). The remaining 196 permits were classified as 
temporarily inactive or were associated with some type of reclamation 
activity. Permits associated with active coal removal consisted of six 
primary types: access road, loadout (areas of coal storage, often 
located away from the mine site), prep plant (facility that washes coal 
prior to transport by rail or truck), refuse facility (stores non-coal 
rock, water, and slurry originating from an underground mine), surface, 
and underground. With respect to permit type, the greatest number of 
permits was associated with surface mines (64 permits), followed by 
underground (32), prep plant (20), access road (13), refuse facility 
(5), and loadout (2). With respect to county distribution, Perry County 
had the most permits (59), followed by Leslie (28), Breathitt (16), 
Knott (16), Clay (12), Harlan (2), Owsley (2), and Jackson (1). No 
activity was reported for Lee or Wolfe Counties. Six permits were 
located in Kentucky arrow darter watersheds: Buckhorn Creek (Breathitt 
and Knott Counties), Bullskin Creek (Clay County), and Left Fork 
Buffalo Creek (Owsley County).
    Annual coal production in eastern Kentucky (including counties in 
the upper Kentucky River drainage) has declined over the past 2 
decades, but annual production in eastern Kentucky continues to be 
relatively high (over 37 million tons produced in 2014) (KEEC 2014, pp. 
1-5), recoverable reserves for the eastern Kentucky portion of the 
Appalachian Basin are estimated at 5.8 billion tons (Milici and Dennen 
2009, pp. 8-11), and the species' distribution continues to be 
fragmented and reduced as a result of previous (legacy) mining 
activities within the drainage. Consequently, the potential remains for 
Kentucky arrow darters to continue to be adversely affected by water 
quality degradation associated with surface coal mining activities.
    With regard to specific pollutants, activities associated with coal 
mining

[[Page 60976]]

have the potential to contribute high concentrations of dissolved 
salts, metals, and other solids that (1) elevate stream conductivity (a 
measure of electrical conductance in the water column that increases as 
the concentration of dissolved solids increases), (2) increase sulfates 
(a common dissolved ion with empirical formula of 
SO4-\2\), and (3) cause wide fluctuations in 
stream pH (a measure of the acidity or alkalinity of water) (Curtis 
1973, pp. 153-155; Dyer and Curtis 1977, pp. 10-13; Dyer 1982, pp. 1-
16; Hren et al. 1984, pp. 5-34; USEPA 2003, pp. 77-84; Hartman et al. 
2005, p. 95; Pond et al. 2008, pp. 721-723; Palmer et al. 2010, pp. 
148-149; USEPA 2011, pp. 27-44). As rock strata and excess rock 
material (overburden) are exposed to the atmosphere during the mining 
process, precipitation leaches metals and other solids (e.g., calcium, 
magnesium, sulfates, iron, manganese) from these materials and carries 
them in solution to receiving streams (Pond 2004, p. 7; KDOW 2010, p. 
85). Dissolved ions can enter streams through surface runoff or as 
groundwater flowing through fractured geologic layers. If valley fills 
(hollow-fills) are used as part of the mining activity, precipitation 
and groundwater seep through the fill and dissolve minerals until they 
discharge at the toe of the fill as surface water (Pond et al. 2008, p. 
718). All of these scenarios can result in elevated conductivity, 
sulfates, and hardness in the receiving stream. Stream conductivity in 
mined watersheds can be significantly higher compared to unmined 
watersheds, and conductivity values can remain high for decades 
(Merricks et al. 2007, pp. 365-373; Johnson et al. 2010, pp. 1-2).
    Elevated levels of metals and other dissolved solids (i.e., 
elevated conductivity) in Appalachian streams have been shown to 
negatively impact biological communities, including losses of mayfly 
and caddisfly taxa (Chambers and Messinger 2001, pp. 34-51; Pond 2004, 
p. 7; Hartman et al. 2005, p. 95; Pond et al. 2008, pp. 721-723; Pond 
2010, pp. 189-198) and decreases in fish diversity (Kuehne 1962, pp. 
608-614; Branson and Batch 1972, pp. 507-512; Branson and Batch 1974, 
pp. 81-83; Stauffer and Ferreri 2002, pp. 11-21; Fulk et al. 2003, pp. 
55-64; Mattingly et al. 2005, pp. 59-62; Thomas 2008, pp. 1-9; Service 
2012, pp. 1-4; Black et al. 2013, pp. 34-45; Hitt 2014, pp. 5-7, 11-13; 
Hitt and Chambers 2014, pp. 919-924; Daniel et al. 2015, pp. 50-61). 
Stauffer and Ferreri (2002, pp. 11-21) investigated fish assemblages in 
eastern Kentucky and West Virginia streams and determined that fish 
assemblages downstream of valley fills supported about half the number 
of species found at reference sites. Fulk et al. (2003, pp. 55-64) used 
the Stauffer and Ferreri (2002, pp. 11-21) data set to calculate 
bioassessment scores and reported decreased richness of cyprinids 
(minnows), decreased richness of invertivores (species that feed on 
invertebrates), and increased proportions of tolerant individuals in 
small watersheds (2-10 km\2\ (0.77-3.86 mi\2\)) below valley fills. 
Hitt and Chambers (2014, pp. 919-924) observed lower fish taxonomic and 
functional diversity in streams downstream of valley fills in West 
Virginia. Exposure assemblages (those downstream of valley fills) had 
fewer species, lower abundances, and less biomass than reference 
assemblages across years and seasons. Taxonomic differences between 
reference and exposure (mined) assemblages were associated with 
conductivity and aqueous selenium concentrations (Hitt and Chambers 
2014, pp. 919-924). Daniel et al. (2015, pp. 50-61) examined the 
effects of mining (coal and mineral) at larger spatial scales and 
determined that mining can be a regional source of disturbance that 
negatively impacts fish communities far downstream. Even in watersheds 
with low mine densities (less than 0.01 mines/km\2\ (0.004 mines/
mi\2\)), Daniel et al. (2015, pp. 56-57) detected significant negative 
responses in multiple fish metrics (e.g., diversity, evenness, percent 
invertivores). Compared to other anthropogenic impacts assessed over 
large areas (agriculture, urban land use), mining had a more pronounced 
and consistent impact on fish assemblages (Daniel et al. 2015, p. 58).
    Studies in the upper Kentucky River basin by Branson and Batch 
(1974, pp. 81-83), Dyer and Curtis (1977, pp. 1-13), Kuehne (1962, pp. 
608-609), Thomas (2008, pp. 3-6), Pond (2010, pp. 189-198), and the 
Service (2012, pp. 1-4) have clearly demonstrated that surface coal 
mining activities have contributed to water quality degradation (e.g., 
elevated conductivity) and the extirpation of Kentucky arrow darter 
populations from numerous tributaries in the Quicksand Creek and 
Buckhorn Creek drainages of Breathitt and Knott Counties. From late 
1967 to 1975, Branson and Batch (1972, pp. 507-518; 1974, pp. 81-83), 
and Dyer and Curtis (1977, pp. 1-13) studied the effects of strip 
mining activities on water quality and stream fishes in the Quicksand 
Creek (Leatherwood Creek) and Buckhorn Creek (Bear Branch) watersheds, 
Breathitt County. Six first-order watersheds, three in the Leatherwood 
Creek watershed and three in the Bear Branch watershed, were 
investigated during the study, beginning in late summer 1967, prior to 
the onset of mining, and continuing until 1975. One of the six small 
watersheds, Jenny Fork, was not mined and served as a control 
watershed. Water quality data from mined watersheds showed increases in 
conductivity, sulfate, magnesium, bicarbonate, and silt deposition 
(Dyer and Curtis 1977, pp. 3-7, 13). Water quality data from the 
reference site, Jenny Branch, showed little variation and remained at 
baseline levels. Fish community data from the Bear Branch and 
Leatherwood Creek watersheds showed that fishes were pushed downstream 
or eliminated from the fauna altogether in mined watersheds (Branson 
and Batch 1972, pp. 514-515; Branson and Batch 1974, pp. 82-83). The 
only exception to this was the creek chub, which appeared to be 
tolerant of mining impacts. Several species--silver shiner (Notropis 
photogenis), Kentucky arrow darter, Johnny darter, variegate darter 
(Etheostoma variatum), greenside darter (E. blenniodes), and emerald 
darter--were eliminated from Leatherwood Creek. Two species, northern 
hogsucker (Hypentelium nigricans) and blackside darter (Percina 
maculata), were eliminated from both streams. During the last fish 
sampling event in September 1972, Kentucky arrow darters were observed 
at the mouth of Bear Branch (Branson and Batch 1974, p. 82), but 
instream conductivity levels had not peaked. Branson and Batch (1972, 
p. 514) also did not observe young darters and minnows during later 
visits (early 1970s), suggesting that reproduction had been curtailed 
by the mining activity. Thomas (2008, p. 5) and Service (2012, pp. 1-4) 
resurveyed these streams in 2008-2009, and found that conductivity 
levels had increased since the 1970s, reaching 845 [mu]S/cm in Bear 
Branch and 1008 [mu]S/cm in Leatherwood Creek. Kentucky arrow darters 
were not observed at these sites.
    There is a pattern of increasing conductivity and loss of arrow 
darter populations that is evident in the fish and water quality data 
from the Buckhorn Creek basin (1962 to present) in Breathitt and Knott 
Counties. Kentucky arrow darters and other fish species were first 
reported from the basin in 1962 by Kuehne (1962, pp. 608-609), who 
surveyed sites on the Buckhorn Creek mainstem and numerous tributaries: 
Bear Branch, Clemons Fork, Coles Fork, Laurel Fork,

[[Page 60977]]

Lewis Fork, and Long Fork. Kuehne (1962, pp. 608-609) documented 
Kentucky arrow darters at 16 of 22 sites within the drainage. Since 
that time, the majority of these watersheds have been mined extensively 
and conductivity levels have increased. The only exceptions are two 
unmined watersheds on UK's Robinson Forest (Clemons Fork and Coles 
Fork) and two first-order tributaries in the Buckhorn Creek headwaters 
(Eli Branch and Prince Fork). Thomas (2008, p. 5) and the Service 
(2012, pp. 1-4) resurveyed sites on all historical streams (and most 
historical sites) in the Buckhorn Creek watershed from 2007 to 2010, 
observing Kentucky arrow darters in only Clemons Fork, Coles Fork, and 
Buckhorn Creek, upstream of Emory Branch. Conductivity levels of 
Clemons Fork, Coles Fork, and Buckhorn Creek (upstream of Emory Branch) 
remained at or near background levels (50 to 110 [mu]S/cm), but 
conductivity levels at other streams were elevated, with some of these 
being exceptionally high (greater than 2000 [mu]S/cm).
    ATS (2011, pp. 1-17) surveyed 27 sites in the Buckhorn Creek 
headwaters in 2008, observing similar patterns with respect to 
conductivity and Kentucky arrow darter distributions. ATS (2011, pp. 1-
17) observed a few Kentucky arrow darters in high conductivity reaches 
(e.g., Buckhorn Creek mainstem); however, all of these fishes were 
adults and were observed near low conductivity reaches (e.g., Prince 
Fork). Due to increased levels of dissolved solids (and elevated 
conductivity), portions of two streams in the Buckhorn Creek watershed, 
Buckhorn Creek (mile 0-6.8) and Long Fork (mile 0-8.95), have been 
placed on Kentucky's 303(d) list of impaired waters (KDOW 2013a, pp. 
337-376).
    As demonstrated above, Kentucky arrow darters tend to be less 
abundant in streams with elevated conductivity levels (Service 2012, 
pp. 1-4; Service 2013, p. 9), and are typically excluded from these 
streams as conductivity increases (Branson and Batch 1972, pp. 507-512; 
Branson and Batch 1974, pp. 81-83; Thomas 2008, p. 3-6). Recent range-
wide surveys of historical sites by Thomas (2008, pp. 3-6) and the 
Service (2012, pp. 1-4) demonstrated that Kentucky arrow darters are 
excluded from watersheds when conductivity levels exceed about 250 
[mu]S/cm. The species was observed at only two historical sites where 
conductivity values exceeded 250 [mu]S/cm, and average conductivity 
values were much lower at sites where Kentucky arrow darters were 
observed (115 [mu]S/cm) than at sites where the species was not 
observed (689 [mu]S/cm). A similar phenomenon was reported by Black et 
al. (2013, pp. 34-35), who developed and validated a habitat model for 
the federally threatened blackside dace (Chrosomus cumberlandensis) in 
the upper Cumberland River drainage. Hitt (2014, pp. 5-7, 11-13) used a 
large presence-absence data set (511 sites) from the Service, KDFWR, 
KSNPC, and KDOW to evaluate the relationship between Kentucky arrow 
darter abundance and stream conductivity. Hitt (2014, pp. 5-7, 11-13) 
reported that conductivity was a strong predictor of Kentucky arrow 
darter abundance, and sharp declines in abundance were observed at 258 
[micro]S/cm (95 percent confidence intervals of 155-590 [micro]S/cm). 
Conductivity was the most important variable for the species and was 
more than twice as important as the two next-most important variables 
(upstream percent of forest and percent of agricultural land uses). 
Based on all the research discussed above, we believe it is clear that 
the overall conductivity level is important in determining the Kentucky 
arrow darter's presence and vulnerability, but the species' presence is 
more likely tied to what individual metals or dissolved solids (e.g., 
sulfate) are present. Determination of discrete conductivity thresholds 
or the mechanisms through which fishes are influenced will require 
additional study (KSNPC 2010, p. 3).
    Mine drainage can also cause chemical (and some physical) impacts 
to streams as a result of the precipitation of entrained metals and 
sulfate, which become unstable in solution (USEPA 2003, pp. 24-65; Pond 
2004, p. 7). Hydroxide precipitants are formed from iron and aluminum, 
creating orange or white sludge (``yellow boy'') that forms a thick 
coating on stream substrates (Pond 2004, p. 7). Most affected streams 
have elevated levels of calcium in solution, and if pH is elevated, 
calcium sulfate (CaSO4) or calcium carbonate 
(CaCO3) will precipitate (Pond 2004, p. 7; USEPA 2005, pp. 
24-65). These precipitants accumulate on substrates, encrusting and 
cementing stream sediments, making them unsuitable for colonization by 
invertebrates and rendering them unsuitable as foraging or spawning 
habitat for the Kentucky arrow darter. Acid mine drainage (AMD) tends 
to be more of a legacy problem, as enforcement, newer technology, and 
mining methods have mostly eliminated it in the coal fields of Kentucky 
and Tennessee (Pond 2004, p. 6). In the few streams where the problem 
persists, AMD can be highly detrimental to fish and aquatic insect 
populations (Henry et al. 1999, pp. 919-920; Pond 2004, pp. 7-8). 
Streams affected by AMD tend to have low pH, high conductivity, and 
high metal and sulfate concentrations (Herlihy et al. 1990, pp. 101-
105; Pond 2004, pp. 7-8).
    Oil and gas exploration and drilling activities represent another 
significant source of harmful pollutants in the upper Kentucky River 
basin (KDOW 2013a, 189-214). Since January 2010, over 500 oil and gas 
wells have been permitted in counties where the species was known 
historically (KGS 2015, pp. 1-2), and demand for natural gas production 
in Kentucky is expected to increase in future years (KGS 2002, p. 4; 
KGS 2015, pp. 1-2; Weisenfluh 2014, pp. 1-2). Alternative methods 
(i.e., hydraulic fracturing (``fracking'') and horizontal drilling) 
have allowed for the expansion of oil and gas drilling into deposits 
that were previously inaccessible (KGS 2015, pp. 1-2; Papoulias and 
Velasco 2013, p. 92). This has led to increased activity within eastern 
Kentucky, including portions of the upper Kentucky River basin. Recent 
observations by the Service indicate that new well sites have been 
developed near several Kentucky arrow darter streams in Breathitt, 
Clay, Knott, Lee, and Wolfe Counties (e.g., Hell Creek, Laurel Fork 
Quicksand Creek, Little Fork Lower Devil Creek, Spring Creek, and 
Walker Creek).
    A variety of chemicals (e.g., hydrochloric acid, surfactants, 
potassium chloride) are used during the drilling and fracking process 
(Colborn et al. 2011, pp. 1040-1042). Once used, fluid wastes 
containing these chemicals are stored in open pits (retention basins) 
or trucked away to treatment plants or some other storage facility. If 
spills occur during transport or releases occur due to retention basin 
failure or overflow, there is a risk for surface and groundwater 
contamination. Any such release can cause significant adverse effects 
to water quality and aquatic organisms that inhabit these watersheds 
(Wiseman 2009, pp. 127-142; Kargbo et al. 2010, pp. 5680-5681; Osborn 
et al. 2011, pp. 8172-8176; Papoulias and Velasco 2013, pp. 92-111). In 
2007, this type of event occurred during the development of four wells 
along Acorn Fork in Knox County, Kentucky (Papoulias and Velasco 2013, 
pp. 92-111). Fracking effluent overflowed the retention pits directly 
into Acorn Fork, a known habitat for the federally threatened blackside 
dace. The release affected the entire length of Acorn Fork downstream 
of the release points (an approximate 3.2-km (2-mi) reach), decimating 
the fish and macroinvertebrate communities and resulting in instream 
conductivity

[[Page 60978]]

readings above 30,000 [micro]S/cm (Papoulias and Velasco 2013, pp. 92-
111). Fishes exposed to the affected portions of Acorn fork showed 
general signs of stress and had a higher incidence of gill lesions than 
unexposed reference fishes. Gill lesions were consistent with exposure 
to low pH and toxic concentrations of heavy metals (Papoulias and 
Velasco 2013, pp. 104-105). It is unclear how many blackside dace were 
killed during the event because peak mortality was likely missed before 
researchers arrived to document the incident. However, one dead, one 
moribund, and several living but distressed blackside dace were 
observed. Because oil and gas exploration activities are increasing 
within eastern Kentucky, events similar to the Acorn Fork spill have 
the potential to occur within the upper Kentucky River drainage. It is 
also likely that these types of incidents would go unreported given the 
lack of Federal oversight and the number and distribution of oil and 
gas wells that are being developed within the range of the species.
    Other nonpoint-source pollutants that are common within the upper 
Kentucky River drainage and have the potential to affect the Kentucky 
arrow darter include domestic sewage (through septic tank leakage or 
straight pipe discharges) and agricultural pollutants such as animal 
waste, fertilizers, pesticides, and herbicides (KDOW 2013a, pp. 189-
214). Nonpoint-source pollutants can cause increased levels of nitrogen 
and phosphorus, excessive algal growths, oxygen deficiencies, and other 
changes in water chemistry that can seriously impact aquatic species 
(KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94). 
Nonpoint-source pollution from land surface runoff can originate from 
virtually any land use activity and may be correlated with impervious 
surfaces and storm water runoff (Allan 2004, pp. 266-267). Pollutants 
may include sediments, fertilizers, herbicides, pesticides, animal 
wastes, septic tank and gray water leakage, pharmaceuticals, and 
petroleum products. These pollutants tend to increase concentrations of 
nutrients and toxins in the water and alter the chemistry of affected 
streams such that the habitat and food sources for species like the 
Kentucky arrow darter are negatively impacted.
Physical Habitat Disturbance
    Sedimentation (siltation) has been listed repeatedly by KDOW as the 
most common stressor of aquatic communities in the upper Kentucky River 
basin (KDOW 2010, pp. 70-84; KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 
88-94). Sedimentation comes from a variety of sources, but KDOW 
identified the primary sources of sediment as loss of riparian habitat, 
surface coal mining, legacy coal extraction, logging, and land 
development (KDOW 2010, pp. 70-84; KDOW 2013b, pp. 88-94). All of these 
activities can result in canopy removal, channel disturbance, and 
increased siltation, thereby degrading habitats used by Kentucky arrow 
darters for both feeding and reproduction. The reduction or loss of 
riparian vegetation results in the elevation of stream temperatures, 
destabilization of stream banks and siltation, and removal of submerged 
root systems that provide habitat for fishes and macroinvertebrates 
(the food source for Kentucky arrow darters) (Minshall and Rugenski 
2006, pp. 721-723). Channelization of streams associated with 
residential development and agriculture has been widespread within the 
upper Kentucky River drainage. Generally, streams are relocated to one 
side of the stream valley to provide space for home sites, livestock, 
hay production, or row crops. Channelization dramatically alters 
channel dimensions, gradient, stream flow, and instream habitats, and 
these modified channels are often managed through vegetation removal 
and dredging to improve flood conveyance (Allan and Castillo 2007, p. 
327) and through placement of quarried stone or gabion baskets to 
protect against bank erosion. All of these activities create unstable 
stream segments with shifting substrates, heavy sedimentation, eroding 
banks, and poor to marginal habitat conditions for the species. Twenty-
one streams within the species' historical and current range have been 
identified as impaired (primarily due to siltation from mining, 
logging, agricultural activities, and land development) and have been 
included on Kentucky's 303(d) list of impaired waters (Table 2). The 
species has been extirpated from most of these streams (or watersheds) 
and is considered to be stable in only one (Frozen Creek).
    Resource extraction activities (e.g., surface coal mining, legacy 
coal extraction, logging, oil and gas exploration and drilling) are 
major sources of sedimentation in streams (Paybins et al. 2000, p. 1; 
Wiley et al. 2001, pp. 1-16; KDOW 2013a, pp. 189-214). Activities 
associated with surface coal mining (e.g., land clearing, road 
construction, excavation) produce large areas of bare soil that, if not 
protected or controlled through various erosion control practices, can 
contribute large amounts of sediment during storm events. Mining 
companies are required to implement erosion control measures during 
mining activities, but sedimentation continues to be a significant 
stressor in some mined watersheds (KDOW 2013a, pp. 189-214). Land use 
practices such as the placement of valley fills can affect sediment and 
water discharges into downstream stream reaches, leading to increased 
erosion or sedimentation patterns, destruction or modification of in-
stream habitat and riparian vegetation, stream bank collapse, and 
increased water turbidity and temperature (Wiley et al. 2001, pp. 1-16; 
Messinger 2003, pp. 17-20).
    Similarly, logging activities can adversely affect Kentucky arrow 
darters and other fishes through removal of riparian vegetation, direct 
channel disturbance, and sedimentation of instream habitats (Allan and 
Castillo 2007, pp. 332-333). During logging activities, sedimentation 
occurs as soils are disturbed, the overlying leaf or litter layer is 
removed, and sediment is carried overland from logging roads, stream 
crossings, skid trails, and riparian zones during storm events. Logging 
impacts on sediment production can be considerable, but access and haul 
roads often produce more sediment than the land harvested for timber 
(Brim Box and Mossa 1999, p. 102). Excess sediment can bury in-stream 
habitats used by the species for foraging, reproduction, and 
sheltering, and it can disrupt the dynamic equilibrium of channel 
width, depth, flow velocity, discharge, channel slope, roughness, 
sediment load, and sediment size that maintains stable channel 
morphology (Allan 2004, p. 262). The lack of stream-side vegetation 
also promotes bank erosion that alters stream courses and introduces 
large quantities of sediment into the channel. This can lead to channel 
instability and further degradation of in-stream habitats. Reductions 
in riparian vegetation can adversely affect the species through 
increased solar radiation, elevated stream temperatures, loss of 
allochthonous (organic material originating from outside the channel) 
food material, and bank instability/erosion (Allan 2004, p. 262; Hauer 
and Lamberti 2006, pp. 721-723). Direct channel disturbance occurs 
primarily at stream crossings during culvert, log, or rock placement. 
Severe impacts can occur when loggers use stream channels illegally as 
skid trails (M. Floyd pers. obs. 2009).
    Stormwater runoff from unpaved roads, all-terrain vehicle (ATV) 
trails,

[[Page 60979]]

and driveways represents a significant but difficult to quantify source 
of sediment that impacts streams in the upper Kentucky River basin. 
Observations made by Service personnel during field collections suggest 
that this is a common and widespread problem during storm events across 
the species' range. Sediment has been shown to damage and suffocate 
fish gills and eggs, larval fishes, bottom-dwelling algae, and other 
organisms; reduce aquatic insect diversity and abundance; and, 
ultimately, negatively impact fish growth, survival, and reproduction 
(Berkman and Rabeni 1987, pp. 285-294; Waters 1995, pp. 5-7; Wood and 
Armitage 1997, pp. 211-212; Meyer and Sutherland 2005, pp. 2-3).
Invasion of Hemlock Wooly Adelgid
    The hemlock woolly adelgid (HWA) (Adelges tsugae), an aphid-like 
insect native to Asia, represents a potential threat to the Kentucky 
arrow darter because it has the potential to severely damage stands of 
eastern hemlocks (Tsuga canadensis) that occur within the species' 
range. The HWA was introduced in the Pacific Northwest during the 
1920s, and has since spread throughout the eastern United States, 
reaching eastern Tennessee by 2002, and Kentucky by 2006. The species 
creates an extreme amount of damage to natural stands of hemlock, 
specifically eastern hemlock and Carolina hemlock (Tsuga caroliniana). 
Loss of hemlocks along Kentucky arrow darter streams has the potential 
to result in increased solar exposure and subsequent elevated stream 
temperatures, bank erosion, and excessive inputs of woody debris that 
will clog streams and cause channel instability and erosion (Townsend 
and Rieske-Kinney 2009, pp. 1-3). We expect these impacts to occur in 
some Kentucky arrow darter watersheds; however, we do not believe these 
impacts will be widespread or severe. Eastern hemlocks are not abundant 
in all portions of the Kentucky arrow darter's range, and we expect 
hemlocks to be replaced by other tree species in areas where hemlocks 
are more common. Our review of the available information indicates that 
the invasion of HWA and the subsequent loss of eastern hemlock in 
eastern Kentucky does not pose a threat to the Kentucky arrow darter, 
nor is it likely to become a threat in the future.
    In summary, habitat loss and modification represent threats to the 
Kentucky arrow darter. Severe degradation from contaminants, 
sedimentation, and physical habitat disturbance have contributed to 
extirpations of Kentucky arrow darter populations, and these threats 
continue to impact water quality and habitat conditions across the 
species' range. Contaminants associated with surface coal mining 
(metals, other dissolved solids), domestic sewage (bacteria, 
nutrients), and agriculture (fertilizers, pesticides, herbicides, and 
animal waste) cause degradation of water quality and habitats through 
increased conductivity and sulfates, instream oxygen deficiencies, 
excess nutrification, and excessive algal growths. Sedimentation from 
surface coal mining, logging, agriculture, and land development 
negatively affect the Kentucky arrow darter by burying or covering 
instream habitats used by the species for foraging, reproduction, and 
sheltering. These impacts can cause reductions in growth rates, disease 
tolerance, and gill function; reductions in spawning habitat, 
reproductive success, and egg, larval, and juvenile development; 
modifications of migration patterns; decreased food availability 
through reductions in prey; and reduction of foraging efficiency. 
Furthermore, these threats faced by the Kentucky arrow are the result 
of ongoing land uses that are expected to continue indefinitely.

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

    The Kentucky arrow darter is not believed to be utilized for 
commercial, recreational, scientific, or educational purposes. 
Individuals may be collected occasionally in minnow traps by 
recreational anglers and used as live bait, but we believe these 
activities are practiced infrequently and do not represent a threat to 
the species. Our review of the available information does not indicate 
that overutilization is a threat to the Kentucky arrow darter now or 
likely to become so in the future.

Factor C: Disease or Predation

    No information is available suggesting that disease is a threat to 
the Kentucky arrow darter; therefore, we do not consider disease to be 
a factor in the decline of the species. As to predation, although the 
Kentucky arrow darter is undoubtedly consumed by native predators 
(e.g., fishes, amphibians, and birds), the available information 
suggests that this predation is naturally occurring and a normal aspect 
of the species' population dynamics. Nonnative rainbow trout 
(Oncorhynchus mykiss) represent a potential predation threat (Etnier 
and Starnes 1993, p. 346) as they are introduced annually by KDFWR into 
portions of three Kentucky arrow darter streams: Big Double Creek (Clay 
County), Sturgeon Creek (Lee County), and Swift Camp Creek (Wolfe 
County). Annual totals of 800 and 1,000 rainbow trout are introduced 
into Sturgeon Creek and Swift Camp Creek, respectively, but in these 
watersheds Kentucky arrow darter populations occupy portions of small 
tributaries located outside of actual stocking locations. Therefore, it 
is unlikely that rainbow trout and Kentucky arrow darters interact in 
these watersheds.
    Up to 1,000 rainbow trout are stocked annually by KDFWR within Big 
Double Creek, with releases occurring in March, April, May, and October 
in habitats occupied by Kentucky arrow darters. KDFWR has no specific 
information on the feeding habits of rainbow trout in Big Double Creek, 
but KDFWR supported a research project (Brandt 2006, pp. 1-59) 
investigating the impact of stocked rainbow trout on native fishes in 
Rock Creek, McCreary County, Kentucky. Brandt (2006, pp 1-59) examined 
the guts of 11 introduced rainbow trout obtained from 32 sampling sites 
within the Rock Creek watershed. The majority of stomachs were empty or 
contained remains of macroinvertebrates; however, gut contents from two 
individuals included remains of two native fishes, telescope shiner 
(Notropis telescopus) (n=2) and emerald darter (n=1). Brandt (2006, pp. 
1-59) demonstrated that stocked rainbow trout can be piscivorous in 
Kentucky streams, but the magnitude of this threat was unclear.
    Within Big Double Creek, stockings of rainbow trout have occurred 
for over 30 years (Williams 2014, pers. comm.), but the Kentucky arrow 
darter population in this stream continues to persist and appears to be 
stable (Table 1, above) based on recent surveys (Thomas 2008, p. 4; 
Thomas et al. 2014, p. 23). KDFWR also has no evidence suggesting that 
stocked rainbow trout can survive typical summer temperatures (greater 
than 19 [deg]C (66 [deg]F)) within Big Double Creek (Williams 2014, 
pers. comm.); stocked individuals are caught by anglers or perish once 
stream temperatures rise in warmer months. To assess the potential 
predation of rainbow trout on Kentucky arrow darters or other fishes, 
the Service and DBNF surveyed a 2.1-km (1.3-mile) reach of Big Double 
Creek on April 21, 2014, 17 days after KDFWR's April stocking event 
(250 trout). A total of seven rainbow trout were captured, and the gut 
contents of these individuals were examined. Food items were dominated 
by Ephemeroptera (mayflies), with lesser amounts of Plecoptera 
(stoneflies), Trichoptera

[[Page 60980]]

(caddisflies), Diptera (flies), Decapoda (crayfish), and terrestrial 
Coleoptera (beetles). No fish remains were observed. Based on all these 
factors and the absence of rainbow trout from the majority (98 percent) 
of Kentucky arrow darter streams, we do not believe that predation by 
nonnative rainbow trout poses a threat to the species. Our review of 
available information indicates that neither disease nor predation is 
currently a threat to the species or likely to become a threat to the 
Kentucky arrow darter in the future.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The Kentucky arrow darter has been identified as a threatened 
species within Kentucky (KSNPC 2014, p. 40), but this State designation 
conveys no legal protection for the species or its habitat. Kentucky 
law prohibits the collection of the Kentucky arrow darter (or other 
fishes) for scientific purposes without a valid State-issued collecting 
permit (Kentucky Revised Statutes (KRS) sec. 150.183). Enforcement of 
this permit requirement is difficult, but as discussed above under 
Factor B, we do not believe that these activities represent a threat to 
the species. Kentucky regulations (301 KAR 1:130, sec. 1(3)) also allow 
persons who hold a valid Kentucky fishing license (obtained from KDFWR) 
to collect up to 500 minnows per day (a minnow is defined as any non-
game fish less than 6 inches in length, with the exception of federally 
listed species). This regulation allows for the capture, holding, and 
potential use of the Kentucky arrow darter as a bait species; however, 
again as discussed under Factor B, we believe these activities are 
practiced infrequently and do not represent a threat to the species. 
Because activities associated with these laws and regulations do not 
represent threats to the Kentucky arrow darter, we find that these 
existing regulatory mechanisms have been adequate in protecting the 
species.
    Streams within UK's Robinson Forest (Coles Fork, Snag Ridge Fork, 
and Clemons Fork) are currently protected from the effects of surface 
coal mining due to a 1990 ``lands unsuitable for mining'' designation 
(405 KAR 24:040). The Secretary of the Kentucky Energy and Environment 
Cabinet (KEEC) has the authority to designate certain lands as 
unsuitable for mining if these activities will: (1) Be incompatible 
with existing State and local land use plans; (2) affect fragile or 
historic lands in which such operations could result in significant 
damage to important historic, cultural, scientific, and aesthetic 
values, and natural systems; (3) affect renewable resource lands in 
which such operations could results in a substantial loss or reduction 
of long-range productivity of water supply or food or fiber products, 
and such lands to include aquifers and aquifer recharge areas; or (4) 
affect natural hazard lands in which such operations could 
substantially endanger life and property, such lands to include areas 
subject to frequent flooding and areas of unstable geology. The 
designation was made by the Secretary of the KEEC in response to a 
petition from the Sierra Club, Kentucky Resources Council, Inc., and 
Kentucky Conservation Foundation. The Secretary concluded that surface 
coal mining and reclamation operations were incompatible with UK's 
existing land use management plan and that these activities would 
significantly damage important scientific resources within the petition 
area.
    Portions of 22 of the 47 streams with extant Kentucky arrow darter 
populations are located on the DBNF and receive management and 
protection through DBNF's land and resource management plan (LRMP) 
(USFS 2004, pp. 7-16). Public ownership in these watersheds ranges from 
about 50 to 100 percent. The LRMP is implemented through a series of 
project-level decisions based on appropriate site-specific analysis and 
disclosure. It does not contain a commitment to select any specific 
project; rather, it sets up a framework of desired future conditions 
with goals, objectives, and standards to guide project proposals. 
Projects are proposed to solve resource management problems, move the 
forest environment toward desired future conditions, and supply goods 
and services to the public (USFS 2004, pp. 7-16). The LRMP contains a 
number of protective standards that in general are designed to avoid 
and minimize potential adverse effects to the Kentucky arrow darter and 
other sensitive species; however, the DBNF will continue to consult 
with the Service when their activities may adversely affect streams 
supporting Kentucky arrow darters. In addition to conservation benefits 
provided by the LRMP, the Service and DBNF signed a candidate 
conservation agreement (CCA) for the Kentucky arrow darter in August 
2015. The CCA is intended to conserve the Kentucky arrow darter on the 
DBNF by (a) protecting known populations and habitat, (b) reducing 
threats to its survival, (c) conserving the watersheds and ecosystems 
on which it depends, and (d) enhancing and/or restoring degraded 
habitat (USFWS and USFS 2015). The DBNF's ownership and management 
under the LRMP contributes substantially to the conservation of the 
Kentucky arrow darter. A significant portion (about 38 percent) of the 
species' remaining populations occurs within the DBNF, and these 
populations have benefited from management goals, objectives, and 
protective standards included in the LRMP. Collectively, these streams 
contain some of the best remaining habitats for the species and support 
some of the species' most robust populations.
    The Kentucky arrow darter and its habitats are afforded some 
protection from water quality and habitat degradation under the Federal 
Water Pollution Control Act of 1977, commonly referred to as the Clean 
Water Act (33 U.S.C. 1251 et seq.); the Federal Surface Mining Control 
and Reclamation Act (SMCRA) (30 U.S.C. 1201 et seq.) of 1977; 
Kentucky's Forest Conservation Act of 1998 (KRS secs. 149.330-355); 
Kentucky's Agriculture Water Quality Act of 1994 (KRS secs. 224.71-
140); and additional Kentucky laws and regulations regarding natural 
resources and environmental protection (KRS secs. 146.200-360; KRS sec. 
224; 401 KAR secs. 5:026, 5:031). While these laws have undoubtedly 
resulted in some improvements in water quality and stream habitat for 
aquatic life, including the Kentucky arrow darter, we must conclude 
that they alone have been inadequate in fully protecting this species; 
sedimentation and other nonpoint-source pollutants continue to be a 
pose a threat to the species.
    Although water quality has generally improved since the Clean Water 
Act and SMCRA were enacted or amended in 1977, there is continuing, 
ongoing degradation of water quality within the range of the Kentucky 
arrow darter. The species has been extirpated from 36 of its 74 
historical streams (49 percent), and 16 of these extirpations (16 
streams) have occurred since the mid-1990s. A total of 21 streams 
(335.8 stream km (208.7 stream mi)) within the species' historical 
range have been identified as impaired by the KDOW and placed on the 
State's 303(d) list of impaired waters. Of these 21 streams, only 5 
continue to be occupied by Kentucky arrow darter (see Table 2), 4 of 
which are considered ``vulnerable'' (see Table 1). Resource extraction 
(e.g., coal mining, logging, oil/gas well development), land 
development, agricultural activities, stream bank modification, 
channelization, riparian habitat loss, and inadequate sewage treatment 
have been identified as sources of the impairment (Branson and Batch 
1972, pp. 513-516; Branson and

[[Page 60981]]

Batch 1974, pp. 82-83; Thomas 2008, pp. 6-7; KDOW 2010, pp. 70-84; KDOW 
2013a, pp. 189-214, 337-376; KDOW 2013b, pp. 88-94). Identified 
stressors (pollutants) include dissolved solids and elevation of 
instream conductivity, sediment/siltation, fecal coliform bacteria, 
nutrients/eutrophication, and turbidity (KDOW 2010, p. 84; KDOW 2013a, 
pp. 189-214, 337-376). For water bodies on the 303(d) list, States are 
required under the Clean Water Act to establish a total maximum daily 
load (TMDL) for the pollutant of concern that will improve water 
quality to meet the applicable standards. At present, the KDOW has not 
established TMDLs for identified pollutants within portions of the 
upper Kentucky River basin historically occupied by the Kentucky arrow 
darter. At present, TMDLs are not an adequate mechanism to address 
chemical pollutants or sedimentation of aquatic habitats. The Service 
is also not aware of any other current or future changes to State or 
Federal water quality or mining laws that will substantially affect the 
currently observed degradation of water quality.
    Nonpoint-source pollution, originating from mine sites, unpaved 
roads, all-terrain vehicle (ATV) trails, driveways, logging skid 
trails, and other disturbed habitats is considered to be a continuing 
threat to Kentucky arrow darter habitats. Nonpoint-source pollution is 
caused by rainfall or snowmelt moving over and through the ground as 
runoff and transporting natural (sediment) and human-made pollutants to 
lakes, rivers, wetlands, coastal waters, and ground waters. Current 
laws do not adequately protect the Kentucky arrow darter and its 
habitats from nonpoint-source pollution because there is limited 
compliance with existing laws to prevent sediment and other pollutants 
from entering waterways. For example, forestry operations do not have 
permitting requirements under the Clean Water Act because there is a 
silvicultural exemption as long as best management practices (BMPs) are 
used to help control nonpoint-source pollution (Ryder and Edwards 2006, 
entire). The Kentucky Forest Conservation Act of 1998 (KRS 149.330-
149.355) was developed to regulate timber harvesting operations in 
Kentucky. It requires that a Master Logger be on-site and in charge of 
commercial logging operations, and it also requires that all timber 
harvesting operators use appropriate best management practices (BMPs) 
for protection of water quality (Stringer and Thompson 2000, pp. 2-3). 
Without properly installed BMPs, sedimentation occurs as soils are 
disturbed, the overlying leaf or litter layer is removed, and sediment 
is carried overland from logging roads, stream crossings, skid trails, 
and riparian zones during storm events.
    Compliance monitoring from May 2014 to May 2015 within counties 
located in the upper Kentucky River basin indicated that approximately 
19 percent of inspected sites (47 sites out of a total of 246 inspected 
sites) had some kind of compliance issue (e.g., poor BMP use), 
resulting in a written warning by the Kentucky Division of Forestry and 
at least a follow-up visit (Metzger 2015, pers. comm.). Because 
sediment BMPs are not always strictly applied and logging activities 
often result in water quality impairment, the Kentucky Forest 
Conservation Act is an inadequate regulatory mechanism for the 
protection of aquatic habitats supporting the Kentucky arrow darter.
    Kentucky State laws and regulations regarding oil and gas drilling 
are generally designed to protect fresh water resources like the 
Kentucky arrow darter's habitat, but these regulatory mechanisms do not 
contain specific provisions requiring an analysis of project impacts to 
fish and wildlife resources (Kentucky Division of Oil and Gas et al. 
2012, entire). Current regulations also do not contain or provide any 
formal mechanism requiring coordination with, or input from, the 
Service or the KDOW regarding the presence of federally endangered, 
threatened, or candidate species, or other rare and sensitive species.
    In July of 2015, the Office of Surface Mining Reclamation and 
Enforcement (OSM) published in the Federal Register a Notice of 
Availability for a draft environmental impact statement regarding a 
proposed Stream Protection Rule (80 FR 42535; July 17, 2015) and the 
proposed Stream Protection Rule (80 FR 44436, July 27, 2015). The 
proposed rule states: ``This proposed rule would better protect 
streams, fish, wildlife, and related environmental values from the 
adverse impacts of surface coal mining operations and provide mine 
operators with a regulatory framework to avoid water pollution and the 
long-term costs associated with water treatment'' (80 FR 44436, see 
SUMMARY). While this proposed rule may provide benefits for the 
Kentucky arrow darter in the future, until the rule is finalized and 
implemented, we are unable to evaluate its potential effectiveness with 
regard to the Kentucky arrow darter and its habitat.
    In summary, degradation of habitat for the Kentucky arrow darter is 
ongoing despite existing regulatory mechanisms. These regulatory 
mechanisms have been inadequate to reduce or remove the threats to the 
Kentucky arrow darter.

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

Restricted Range and Population Size
    The disjunct nature of some Kentucky arrow darter populations 
(Figures 2 and 3, above) restricts the natural exchange of genetic 
material between populations and makes natural repopulation following 
localized extirpations of the species arduous without human 
intervention. The localized nature and small size of many populations 
also makes them vulnerable to extirpation from intentional or 
accidental toxic chemical spills, habitat modification, progressive 
degradation from runoff (nonpoint-source pollutants), natural 
catastrophic changes to their habitat (e.g., flood scour, drought), and 
other stochastic disturbances, such as loss of genetic variation and 
inbreeding (Soul[eacute] 1980, pp. 157-158; Hunter 2002, pp. 97-101; 
Allendorf and Luikart 2007, pp. 117-146). Inbreeding and loss of 
neutral genetic variation associated with small population size can 
further reduce the fitness of the population (Reed and Frankham 2003, 
pp. 230-237), subsequently accelerating population decline (Fagan and 
Holmes 2006, pp. 51-60).
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
decreasing their ability to adapt to environmental changes, and 
reducing the fitness of individuals (Soul[eacute] 1980, pp. 157-158; 
Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It 
is likely that some of the Kentucky arrow darter populations are below 
the effective population size required to maintain long-term genetic 
and population viability (Soul[eacute] 1980, pp. 162-164; Hunter 2002, 
pp. 105-107). The long-term viability of a species is founded on the 
conservation of numerous local populations throughout its geographic 
range (Harris 1984, pp. 93-104). These separate populations are 
essential for the species to recover and adapt to environmental change 
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The 
level of isolation seen in this species makes natural repopulation 
following localized extirpations virtually impossible without human 
intervention.

[[Page 60982]]

Climate Change
    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
warming of the climate system is unequivocal (IPCC 2014, p. 3). 
Numerous long-term climate changes have been observed including changes 
in arctic temperatures and ice, widespread changes in precipitation 
amounts, ocean salinity, wind patterns and aspects of extreme weather 
including droughts, heavy precipitation, heat waves, and the intensity 
of tropical cyclones (IPCC 2014, p. 4). Species that are dependent on 
specialized habitat types, limited in distribution, or at the extreme 
periphery of their range may be most susceptible to the impacts of 
climate change (see 75 FR 48911, August 12, 2010); however, while 
continued change is certain, the magnitude and rate of change is 
unknown in many cases.
    Climate change has the potential to increase the vulnerability of 
the Kentucky arrow darter to random catastrophic events (McLaughlin et 
al. 2002, pp. 6060-6074; Thomas et al. 2004, pp. 145-148). An increase 
in both severity and variation in climate patterns is expected, with 
extreme floods, strong storms, and droughts becoming more common (Cook 
et al. 2004, pp. 1015-1018; Ford et al. 2011, p. 2065; IPCC 2014, pp. 
58-83). Thomas et al. (2004, pp. 145-148) report that frequency, 
duration, and intensity of droughts are likely to increase in the 
Southeast as a result of global climate change. Predicted impacts of 
climate change on fishes include disruption to their physiology (such 
as temperature tolerance, dissolved oxygen needs, and metabolic rates), 
life history (such as timing of reproduction, growth rate), and 
distribution (range shifts, migration of new predators) (Jackson and 
Mandrak 2002, pp. 89-98; Heino et al. 2009, pp. 41-51; Strayer and 
Dudgeon 2010, pp. 350-351; Comte et al. 2013, pp. 627-636). According 
to Kaushal et al. (2010, p. 465), stream temperatures in the Southeast 
have increased roughly 0.2-0.4 [deg]C per decade over the past 30 
years, and as air temperature is a strong predictor of water 
temperature, stream temperatures are expected to continue to rise.
    Estimates of the effects of climate change using available climate 
models typically lack the geographic precision needed to predict the 
magnitude of effects at a scale small enough to discretely apply to the 
range of a given species. However, data on recent trends and predicted 
changes for Kentucky (Girvetz et al. 2009, pp. 1-19), and, more 
specifically, the upper Kentucky River drainage (Alder and Hostetler 
2013, entire) provide some insight for evaluating the potential threat 
of climate change to the Kentucky arrow darter. These models provide 
estimates of average annual increases in maximum and minimum 
temperature, precipitation, snowfall, and other variables. Depending on 
the chosen model, average annual temperatures for Kentucky and the 
upper Kentucky River drainage are expected to increase by 2.5 to 5 
[deg]C (4.5 to 9 [deg]F) by the 2080s (Girvetz et al. 2009, pp. 1-19; 
Alder and Hostetler 2013, pp. 1-9), while precipitation models predict 
that Kentucky will experience a slight increase in average annual 
precipitation (2 cm/day (0.8 in/day) (x 100)) through 2074 (Girvetz et 
al. 2009, pp. 1-19; Alder and Hostetler 2013, pp. 1-9).
    There is uncertainty about the specific effects of climate change 
(and their magnitude) on the Kentucky arrow darter; however, climate 
change is almost certain to affect aquatic habitats in the upper 
Kentucky River drainage of Kentucky through increased water 
temperatures and more frequent droughts (Alder and Hostetler 2013, 
entire), and species with limited ranges, fragmented distributions, and 
small population size are thought to be especially vulnerable to the 
effects of climate change (Byers and Norris 2011, p. 18). Thus, we 
consider climate change to be a threat to the Kentucky arrow darter.
    In summary, we have determined that other natural and manmade 
factors, such as geographical isolation, small population size, and 
climate change, are threats to remaining populations of the Kentucky 
arrow darter across its range. The severity of these threats is high 
because of the species' reduced range and population size, which result 
in a reduced ability to adapt to environmental change. Further, our 
review of the best available scientific and commercial information 
indicates that these threats are likely to continue or increase in the 
future.

Proposed Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Kentucky arrow darter. As described in detail above, the 
Kentucky arrow darter has been extirpated from about 49 percent of its 
historical range (36 of 74 historical streams), 16 of these 
extirpations have occurred since the mid-1990s, populations in nearly 
half of the species' occupied streams are ranked as vulnerable (see 
Table 1, above), remaining populations are fragmented and isolated, and 
the species continues to be at risk throughout all of its range due to 
the immediacy, severity, and scope of threats from three of the five 
threat factors: habitat degradation and range curtailment (Factor A), 
inadequacy of existing regulatory mechanisms (Factor D), and other 
natural or manmade factors affecting its continued existence (Factor 
E).
    Anthropogenic activities such as surface coal mining, logging, oil/
gas development, land development, agriculture, and inadequate sewage 
treatment have all contributed to the degradation of stream habitats 
within the species' range (Factor A). These land use activities have 
led to chemical and physical changes to stream habitats that continue 
to affect the species. Specific stressors include inputs of dissolved 
solids and elevation of instream conductivity, sedimentation/siltation 
of stream substrates, turbidity, and inputs of nutrients and organic 
enrichment. These high magnitude stressors, especially the inputs of 
dissolved solids and sedimentation, have had profound negative effects 
on Kentucky arrow darter populations and have been the primary factor 
in the species' decline. Existing regulatory mechanisms (e.g., the 
Clean Water Act) have provided for some improvements in water quality 
and habitat conditions across the species' range, but these laws and 
regulations have been inadequate in protecting the species' habitat 
(Factor D), as evidenced by recent extirpations (16 streams since the 
1990s) and the 21 303(d) listed streams within the species' historical 
range. The Kentucky arrow darter's vulnerability to these threats is 
even greater due to its reduced range, fragmented populations, and 
small or declining population sizes (Factor E) (Primack 2012, pp. 146-
150). The effects of certain threats, particularly habitat degradation 
and loss, increase in magnitude when population size is small (Primack 
2012, pp. 150-152).
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We find that the Kentucky arrow darter 
meets the definition of a threatened species based on the immediacy, 
severity, and scope of the threats identified above. The species' 
overall range has been reduced substantially, most of the species' 
historical habitat has been degraded, and much of the remaining habitat 
exists primarily in fragmented patches. Current Kentucky

[[Page 60983]]

arrow darter habitats continue to be lost or degraded due to surface 
coal mining, logging, oil/gas development, land development, 
agriculture, and inadequate sewage treatment, and it appears this trend 
will continue in the future. Regulatory mechanisms such as the Clean 
Water Act have been inadequate to reduce or remove these types of 
threats to the species. Extant populations are known from 47 streams, 
but these populations continue to be threatened by small population 
size, isolation, fragmentation, climate change, and the habitat 
degradation summarized above. All of these factors make the species 
particularly susceptible to extinction in the future.
    We find that endangered status is not appropriate for the Kentucky 
arrow darter because we do not consider the species' threats to be so 
severe that extinction is imminent. Although threats to the species are 
ongoing, often severe, and occurring across the range, populations 
continue to occupy 47 scattered streams, 23 of which appear to support 
stable populations (see Table 1, above). Additionally, a significant 
number of extant Kentucky arrow darter populations (49 percent) occur 
primarily on public lands (i.e., DBNF and Robinson Forest) that are at 
least partially managed to protect habitats used by the species. For 
example, the CCA with the U.S. Forest Service (USFS) for DBNF should 
provide an elevated level of focused management and conservation for 
portions of 20 streams that support populations of the Kentucky arrow 
darter. Based on all these factors, the Kentucky arrow darter does not 
meet the definition of an endangered species. Therefore, on the basis 
of the best available scientific and commercial information, we propose 
listing the Kentucky arrow darter as a threatened species in accordance 
with sections 3(20) and 4(a)(1) of the Act.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is an endangered or threatened species throughout 
all or a significant portion of its range. Because we have determined 
that the Kentucky arrow darter is a threatened species throughout all 
of its range, no portion of its range can be ``significant'' for 
purposes of the definitions of ``endangered species'' and ``threatened 
species.'' See the Final Policy on Interpretation of the Phrase 
``Significant Portion of Its Range'' in the Endangered Species Act's 
Definitions of ``Endangered Species'' and ``Threatened Species'' (79 FR 
37577, July 1, 2014).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. The plan may be revised to address continuing 
or new threats to the species, as new substantive information becomes 
available. The recovery plan also identifies recovery criteria for 
review of when a species may be ready for reclassification from 
endangered to threatened or for delisting and methods for monitoring 
recovery progress. Recovery plans also establish a framework for 
agencies to coordinate their recovery efforts and provide estimates of 
the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. If the species is listed, a recovery outline, draft 
recovery plan, and the final recovery plan will be available on our Web 
site (http://www.fws.gov/endangered), or from our Kentucky Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands. 
If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of Kentucky would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Kentucky arrow darter. Information on 
our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although the Kentucky arrow darter is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in conservation efforts for this species. Additionally, 
we invite you to submit any new information on this species whenever it 
becomes available and any information you may have for conservation 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to

[[Page 60984]]

jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the USFS; issuance of 
section 404 Clean Water Act permits by the U.S. Army Corps of 
Engineers; construction and maintenance of gas pipeline and power line 
rights-of-way by the Federal Energy Regulatory Commission; 
Environmental Protection Agency pesticide registration; construction 
and maintenance of roads or highways by the Federal Highway 
Administration; and projects funded through Federal loan programs which 
may include, but are not limited to, roads and bridges, utilities, 
recreation sites, and other forms of development.
    Several conservation efforts are already being undertaken for the 
Kentucky arrow darter. The Service, in cooperation with KDFWR, KSNPC, 
U.S. Geological Survey (USGS), KDOW, DBNF, CFI, and The Appalachian 
Wildlife Foundation, Inc., completed a conservation strategy for the 
Kentucky arrow darter in 2014 (Service 2014, entire). The strategy was 
developed as a guidance document that would assist the Service and its 
partners in their conservation efforts for the species. The strategy is 
divided into four major sections: (1) Biology and status, (2) listing 
factors/current threats, (3) current conservation efforts, and (4) 
conservation objectives/actions. The strategy's first conservation 
objective addresses current informational needs on the species' 
biology, ecology, viability, and survey methods, while the remaining 
three conservation objectives address specific threats facing the 
species (Factors A, D, and E, respectively).
    With respect to the conservation strategy's first objective, 
several research projects have been initiated that will provide new 
information on the species' biology and threats (see descriptions in 
the following paragraphs). These projects include studies on the 
species' distribution, status, and population size; movement and 
microhabitat characteristics; genetics; and response to changes in 
water quality (e.g., conductivity). Initial efforts to address 
objectives 2-4 have included the development of a CCA with the USFS, a 
propagation and reintroduction study by KDFWR and CFI, field 
investigations to determine the predatory risk posed by nonnative 
trout, and continued informal discussions with our Federal, State, and 
private partners. If implemented, specific actions identified in the 
conservation strategy will help to reduce current threats to the 
Kentucky arrow darter.
    As stated above, the Service and USFS recently signed a CCA for the 
Kentucky arrow darter on the DBNF. About half of the species' extant 
streams occur on lands owned and managed by the DBNF, so conservation 
of these populations is essential to the species' recovery, and a DBNF-
specific conservation plan is needed to guide those efforts. The CCA is 
intended to conserve the Kentucky arrow darter on the DBNF by (a) 
protecting known populations and habitat, (b) reducing threats to its 
survival, (c) conserving the watersheds and ecosystems on which it 
depends, and (d) enhancing and/or restoring degraded habitat.
    In 2005, KDFWR identified the Kentucky arrow darter as 1 of 251 
Species of Greatest Conservation Need (SGCN) in its State Wildlife 
Action Plan (KDFWR 2005, entire). The species remains a SGCN in the 
most recent version of the plan (KDFWR 2013, pp. 61-62), which 
identifies conservation issues (threats), conservation actions, and 
monitoring strategies for 301 animal species belonging to 1 of 20 
terrestrial and aquatic habitat guilds (collection of species that 
occur in the same habitat). In the original plan, KDFWR developed a 
priority list of research and survey needs for Kentucky's SGCN. In 
2008, KDFWR attempted to address two of these needs by initiating a 
propagation and reintroduction study for the Kentucky arrow darter 
through the Service's State Wildlife Program (Ruble et al. 2010, 
entire). The study was designed to document details on the species' 
reproductive biology and to begin conservation actions (e.g., 
propagation followed by reintroduction or augmentation) that would 
benefit the species. The KDFWR partnered with CFI to develop successful 
spawning protocols and produce the offspring needed to augment 
populations within the species' current range.
    From 2009 to 2011, a total of 145 captive-spawned, juvenile 
Kentucky arrow darters (originating from brood stock taken from Big 
Double Creek) were produced by CFI, tagged (Northwest Marine 
Technologies elastomer tag), and introduced into Sugar Creek, Leslie 
County, a tributary of the Red Bird River in the DBNF, Redbird District 
(Thomas and Brandt 2012, pp. 57-64). Attempts to relocate tagged 
darters in August 2009, October 2009, March 2010, January 2012, and 
February 2012, were unsuccessful, so KDFWR and CFI made the decision to 
abandon efforts at Sugar Creek and begin another reintroduction effort 
at Long Fork, another DBNF stream and tributary of Hector Branch in 
Clay County.
    Since August 2012, a total of 1,447 captive-spawned KADs (about 50-
55 mm TL) have been tagged and reintroduced within a 1.5-km (0.9 mi) 
reach of Long Fork. Monitoring has been conducted on 14 occasions since 
the initial release using visual searches and seining methods. Tagged 
darters have been observed during each monitoring event, with numbers 
increasing from 18 (October 2012) to 86 (August 2013) (Thomas et al. 
2014, p. 23). Tagged darters have been observed throughout the Long 
Fork mainstem, both upstream and downstream of the release points, and 
two tagged individuals have been observed outside of Long Fork--one in 
Hector Branch, just downstream of its confluence with Long Fork, and 
one at the mouth of Deerlick Branch, a first-order tributary of Hector 
Branch located approximately 1 km (0.6 mi) downstream of the confluence 
of Long Fork and Hector Branch. The majority of individuals have been 
found in pools (depth of 20-61 cm (8-24 in)) with rock substrates, 
exposed bedrock, and some marginal cover (e.g., tree roots). Surveys in 
July, August, and October 2013, produced a total of 20, untagged young-
of-year arrow darters, while surveys in March, July, August, and 
October 2013, produced 25 untagged young-of-year. These results 
indicate natural reproduction in Long Fork. In 2015, KDFWR observed 
five untagged individuals in Hector Branch, approximately 0.6 km (0.4 
mi) upstream of its confluence with Long Fork, and four untagged 
individuals in Deerlick Branch, approximately 1 km (0.6 mi) downstream 
of the confluence of Long Fork and Hector Branch. Additional monitoring 
and releases are planned for 2015.
    The Service and KDFWR are working with EKU on a study that is 
investigating Kentucky arrow darter movements, habitat characteristics, 
and population size in two DBNF streams, Gilberts Big Creek and Elisha 
Creek, in Clay and Leslie Counties (Harrel and Baxter 2013, entire). 
EKU is using PIT-tags and placed antenna systems to monitor intra- and 
inter-tributary movement patterns in both streams, and they have 
collected seasonal (Spring, Summer, and Fall of 2013) biotic and 
abiotic data from 20 100-m (328-ft) reaches to determine habitat use 
and population density/size for both

[[Page 60985]]

streams. Preliminary findings include the following:
     126 individuals pit-tagged;
     Population estimates for Elisha Creek: 592-1,429 
individuals (summer) and 661-1,359 (fall) (range here and below 
reflects 95 percent confidence intervals);
     Population estimate for Gilberts Big Creek: 175-358 
(summer);
     Maximum observed movement: 4,078 m (2.5 mi) (female, 
downstream in Gilberts Big Creek); and
     Other observed movements (7 individuals): 134 m (439 ft) 
(upstream), 328 m (1,076 ft) (downstream), 351 (1,151 ft) (upstream), 
900 m (2,952 ft) (upstream/downstream), 950 m (3,116 ft) (downstream), 
1,282 m (4,028 ft) (downstream) and 1,708 m (5,603 ft) (downstream).
    In 2013, KSNPC and the Service initiated a study to investigate the 
distribution, status, population size, and habitat use of the Kentucky 
arrow darter within the upper Kentucky River basin. One important 
aspect of the study was to account for imperfect detection when 
surveying for the species. Studies that do not account for imperfect 
detection can often lead to an underestimation of the true proportion 
of sites occupied by a species and can bias assessments and sampling 
efforts (MacKenzie et al. 2002, entire; MacKenzie et al. 2005, entire). 
From June to September 2013, KSNPC and the Service visited 80 randomly 
chosen sites (ranging from first- to third-order) across the upper 
Kentucky River basin in order to address these concerns and meet 
project objectives. As expected, Kentucky arrow darters were rare 
during the study and were observed at only 7 of the 80 sites, including 
two new localities (Granny Dismal Creek in Owsley County and Spring 
Fork Quicksand Creek in Breathitt County) and one historical stream 
(Hunting Creek, Breathitt County) where the species was not observed 
during status surveys by Thomas (2008, pp. 1-33) and Service (2012, pp. 
1-4). Presently, KSNPC and the Service are in the data analysis stage 
of this project.
    In July 2013, EKU, the Service, and KSNPC initiated a population 
estimate and microhabitat characterization study on Clemons Fork, 
Breathitt County. The study was designed to estimate the Kentucky arrow 
darter's current population size and average density within Clemons 
Fork and to compare current densities with historical densities 
reported by Lotrich (1973). Additionally, population densities and 
habitat parameters will be compared to data from Gilberts Big Creek and 
Elisha Creek (both DBNF) to aid in delineation of essential habitat 
characteristics and development and implementation of conservation 
efforts. Field surveys were completed in August 2013. Data analyses are 
incomplete, but initial results include a mean density of 9.69 Kentucky 
arrow darters per sampling reach and a population estimate of 986 to 
2,113 darters in Clemons Fork (95 percent confidence intervals). 
Preliminary findings of this study were presented at the 2013 
Southeastern Fishes Council Meeting, Lake Guntersville, Alabama 
(November 14-15, 2013).
    Austin Peay State University is currently working with KDFWR and 
the Service on the first comprehensive assessment of genetic variation 
and gene flow patterns across the range of the Kentucky arrow darter 
(Johansen et al. 2013, pp. 1-3). Approximately 25 individuals per 
population from up to 12 populations across the range of the species 
will be genotyped using microsatellite markers. Resulting data will be 
used to generate robust estimates of effective population sizes and 
overall population and species' variability. This information is 
essential to the development of effective conservation and recovery 
measures to ensure the long-term persistence of the species. Funding 
for this project is being provided through the Service's section 6 
program.
    Through Service-USGS Quick Response funding, the USGS Leetown 
Science Center evaluated the relationship between Kentucky arrow darter 
abundance and stream conductivity in the upper Kentucky River basin 
(Hitt 2014, entire). Nonlinear regression techniques were used to 
evaluate significant thresholds and associated confidence intervals for 
Kentucky arrow darter abundance related to conductivity levels. As a 
contrast to Kentucky arrow darter, Dr. Hitt also evaluated blackside 
dace occurrence in this regard. Data for the study were supplied by the 
Service's Kentucky and Tennessee Field Offices, KDFWR, and KSNPC. 
Nonlinear regressions indicated a distinct decline in Kentucky arrow 
darter abundance at 258 [micro]S/cm (95 percent confidence intervals 
155-590 [micro]S/cm), above which abundances were negligible. Nonlinear 
threshold declines for blackside dace were observed at 343 [micro]S/cm, 
and 95 percent confidence intervals bounded this relationship between 
123-632 [micro]S/cm. Boosted regression results indicated that stream 
conductivity was the strongest predictor in separate analyses of 
Kentucky arrow darter and blackside dace abundance. Hitt (2014, pp. 7-
8) concluded that the similar responses of these ecologically distinct 
taxa suggest the general importance of this water quality attribute for 
stream fish ecology in central Appalachia.

Proposed Special Rule

    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened wildlife. We may also prohibit by 
regulation, with respect to threatened wildlife, any act that is 
prohibited by section 9(a)(1) of the Act for endangered wildlife. 
Exercising this discretion, the Service has developed general 
prohibitions that are appropriate for most threatened species at 50 CFR 
17.31 and exceptions to those prohibitions at 50 CFR 17.32. While most 
of the prohibitions of 17.31 and 17.32 are appropriate for the Kentucky 
arrow darter, we find that some activities that would normally be 
prohibited under 17.31 and 17.32 are necessary for the conservation of 
this species because the species could benefit from habitat 
improvements in first- to third-order streams that are physically 
degraded (e.g., unstable stream channels, eroding banks, no canopy 
cover). Therefore, for the Kentucky arrow darter, the Service has 
determined that a species-specific section 4(d) rule may be appropriate 
to promote the conservation of this species. As discussed in the 
Summary of Factors Affecting the Species section of this rule, the 
primary threat to the species is the continuing loss and degradation of 
habitat. Physical habitat degradation is widespread within the species' 
range, and sediment has been identified as the most common stressor 
(KDOW 2013a, pp. 189-214; KDOW 2013b, pp. 88-94). Sedimentation may 
originate from areas outside of the stream channel as a result of land 
use activities associated with surface coal mining, legacy coal 
extraction, logging, land development, channel relocations, and 
riparian clearing. All of these activities can cause sedimentation, but 
they may also lead to canopy removal clearing of riparian vegetation, 
and elevation of stream temperatures, thereby degrading habitats used 
by Kentucky arrow darters for feeding, sheltering, and reproduction. 
Sedimentation may also originate from areas within the stream channel 
as a result of channel instability and bank or stream bed erosion. 
Numerous streams within the species' current range have been identified 
as impaired (primarily due to siltation) and have been included on 
Kentucky's 303(d) list of impaired waters (see Table 2, above). 
Activities such as stream reconfiguration/riparian restoration, bridge 
and culvert

[[Page 60986]]

replacement or removal, bank stabilization, and stream crossing repair 
and maintenance, that follow the provisions of the species specific 
4(d) rule below will improve or restore physical habitat quality for 
the Kentucky arrow darter and will provide an overall conservation 
benefit to the species.
    The 4(d) rule, if approved, will not remove or alter in any way the 
consultation requirement under section 7 of the Act. However, we expect 
the 4(d) rule to provide greater certainty to Federal agencies and any 
third parties (e.g., permit applicants) in the consultation process for 
activities conducted in accordance with the provisions of the 4(d) 
rule. The consultation process may be further streamlined through 
programmatic consultations between Federal agencies and the Service for 
these activities. We ask the public, particularly Federal agencies and 
other interested stakeholders that may be affected by the 4(d) rule, to 
provide comments and suggestions regarding additional guidance and 
methods that the Service could provide or utilize, respectively, to 
streamline the implementation of this 4(d) rule (see Information 
Requested).

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would except from the general prohibitions 
in 50 CFR 17.32 take incidental to the following activities when 
conducted within habitats currently occupied by the Kentucky arrow 
darter. All of the activities listed below must be conducted in a 
manner that (1) maintains connectivity of suitable Kentucky arrow 
darter habitats, allowing for dispersal between streams; (2) minimizes 
instream disturbance by conducting activities during low-flow periods 
when possible; and (3) maximizes the amount of instream cover that is 
available for the species:
    (1) Channel reconfiguration or restoration projects that create 
natural, physically stable, ecologically functioning streams (or stream 
and wetland systems) that are reconnected with their groundwater 
aquifers (Parola and Biebighauser 2011, pp. 8-13; Parola and Hansen 
2011, pp. 2-7; Floyd et al. 2013, pp. 129-135). These projects can be 
accomplished using a variety of methods, but the desired outcome is a 
natural, sinuous channel with low shear stress (force of water moving 
against the channel); low bank heights and reconnection to the 
floodplain; a reconnection of surface and groundwater systems, 
resulting in perennial flows in the channel; riffles and pools 
comprised of existing soil, rock, and wood instead of large imported 
materials; low compaction of soils within adjacent riparian areas; and 
inclusion of riparian wetlands. First- to third-order, headwater 
streams reconstructed in this way would offer suitable habitats for the 
Kentucky arrow darter and contain stable channel features, such as 
pools, glides, runs, and riffles, which could be used by the species 
for spawning, rearing, growth, feeding, migration, and other normal 
behaviors.
    (2) Bank stabilization projects that utilize bioengineering methods 
outlined in Kentucky Environmental and Public Protection Cabinet and 
Kentucky Transportation Cabinet (2005, pp. 116-128) to replace pre-
existing, bare, eroding stream banks with vegetated, stable stream 
banks, thereby reducing bank erosion and instream sedimentation and 
improving habitat conditions for the species. Following these methods, 
stream banks may be stabilized using live stakes (live, vegetative 
cuttings inserted or tamped into the ground in a manner that allows the 
stake to take root and grow), live fascines (live branch cuttings, 
usually willows, bound together into long, cigar shaped bundles), or 
brush layering (cuttings or branches of easily rooted tree species 
layered between successive lifts of soil fill). These methods would not 
include the sole use of quarried rock (rip-rap) or the use of rock 
baskets or gabion structures.
    (3) Bridge and culvert replacement/removal projects that remove 
migration barriers (e.g., collapsing, blocked, or perched culverts) or 
generally allow for improved upstream and downstream movements of 
Kentucky arrow darters while maintaining normal stream flows, 
preventing bed and bank erosion, and improving habitat conditions for 
the species.
    (4) Repair and maintenance of USFS concrete plank stream crossings 
on the DBNF that allow for safe vehicle passage while maintaining 
instream habitats, reducing bank and stream bed erosion and instream 
sedimentation, and improving habitat conditions for the species. These 
concrete plank crossings have been an effective stream crossing 
structure on the DBNF and have been used for decades. Over time, the 
planks can be buried by sediment, undercut during storm events, or 
simply break down and decay. If these situations occur, the DBNF must 
make repairs or replace the affected plank.
    We believe these actions and activities, while they may have some 
minimal level of mortality, harm, or disturbance to the Kentucky arrow 
darter, are not expected to adversely affect the species' conservation 
and recovery efforts. In fact, we expect they would have a net 
beneficial effect on the species. Across the species' range, instream 
habitats have been degraded physically by sedimentation and by direct 
channel disturbance. The activities proposed in this rule will correct 
some of these problems, creating more favorable habitat conditions for 
the species. Like the proposed listing rule, this proposed 4(d) rule 
will not be finalized until we have reviewed comments from the public 
and peer reviewers.
    Based on the rationale above, the provisions included in this 
proposed 4(d) rule are necessary and advisable to provide for the 
conservation of the Kentucky arrow darter. Nothing in this proposed 
4(d) rule would change in any way the recovery planning provisions of 
section 4(f) of the Act, the consultation requirements under section 7 
of the Act, or the ability of the Service to enter into partnerships 
for the management and protection of the Kentucky arrow darter.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for scientific purposes, to 
enhance the propagation or survival of the species, economic hardship, 
zoological exhibition, educational purposes, and for incidental take in 
connection with otherwise lawful activities. There are also certain 
statutory exemptions from the prohibited activities, which are found in 
sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act (for this species, those 
section 9 prohibitions adopted through the proposed 4(d) rule). The 
intent of this policy is to increase public awareness of the effect of 
a proposed listing on proposed and ongoing activities within the range 
of species proposed for listing. Based on the best available 
information, the following actions are unlikely to result in a 
violation of section 9, if these activities are carried out in 
accordance with existing regulations and permit requirements, although 
this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, which are carried out in accordance with 
any existing regulations, permit and label

[[Page 60987]]

requirements, and best management practices; and
    (2) Surface coal mining and reclamation activities conducted in 
accordance with the 1996 Biological Opinion between the Service and 
OSM.
    However, we believe the following activities may potentially result 
in a violation of section 9 of the Act, although this list is not 
comprehensive:
    (1) Unauthorized collecting or handling of the species.
    (2) Destruction or alteration of the habitat of the Kentucky arrow 
darter (e.g., unpermitted instream dredging, impoundment, water 
diversion or withdrawal, channelization, discharge of fill material) 
that impairs essential behaviors such as breeding, feeding, or 
sheltering, or results in killing or injuring a Kentucky arrow darter.
    (3) Discharges or dumping of toxic chemicals, contaminants, or 
other pollutants into waters supporting the Kentucky arrow darter that 
kills or injures individuals, or otherwise impairs essential life-
sustaining behaviors such as breeding, feeding, or sheltering.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Kentucky 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act, need not be prepared in connection with 
listing a species as an endangered or threatened species under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Kentucky Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.
0
2. Amend Sec.  17.11(h) by adding an entry for ``Darter, Kentucky 
arrow'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                           Vertebrate
-------------------------------------------------                   population where                                        Critical
                                                   Historic range     endangered or        Status        When  listed       habitat       Special  rules
          Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
            Fishes
 
                                                                      * * * * * * *
Darter, Kentucky arrow........  Etheostoma        U.S.A. (KY).....  Entire..........               T   ...............              NA         17.44(p)
                                 spilotum.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

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


Sec.  17.44  Special rules--fishes.

* * * * *
    (p) Kentucky arrow darter (Etheostoma spilotum).
    (1) Prohibitions. Except as noted in paragraph (p)(2) of this 
section, all prohibitions and provisions of 50 CFR 17.31 and 17.32 
apply to the Kentucky arrow darter.
    (2) Exceptions from prohibitions. (i) All of the activities listed 
in paragraph (p)(2)(ii) must be conducted in a manner that maintains 
connectivity of suitable Kentucky arrow darter habitats, allowing for 
dispersal between streams; that minimizes instream disturbance by 
conducting activities during low-flow periods when possible; and that 
maximizes the amount of instream cover that is available for the 
species.
    (ii) Incidental take of the Kentucky arrow darter will not be 
considered a violation of section 9 of the Act if the take results from 
any of the following when conducted within habitats currently occupied 
by the Kentucky arrow darter:
    (A) Channel reconfiguration or restoration projects that create 
natural, physically stable, ecologically functioning streams (or stream 
and

[[Page 60988]]

wetland systems) that are reconnected with their groundwater aquifers 
(Parola and Biebighauser 2011, pp. 8-13; Parola and Hansen 2011, pp. 2-
7; Floyd et al. 2013, pp. 129-135). These projects can be accomplished 
using a variety of methods, but the desired outcome is a natural, 
sinuous channel with low shear stress (force of water moving against 
the channel); low bank heights and reconnection to the floodplain; a 
reconnection of surface and groundwater systems, resulting in perennial 
flows in the channel; riffles and pools comprised of existing soil, 
rock, and wood instead of large imported materials; low compaction of 
soils within adjacent riparian areas; and inclusion of riparian 
wetlands. First- to third-order, headwater streams reconstructed in 
this way would offer suitable habitats for the Kentucky arrow darter 
and contain stable channel features, such as pools, glides, runs, and 
riffles, which could be used by the species for spawning, rearing, 
growth, feeding, migration, and other normal behaviors.
    (B) Bank stabilization projects that utilize bioengineering methods 
outlined in Kentucky Environmental and Public Protection Cabinet and 
Kentucky Transportation Cabinet (2005, pp. 116-128) to replace pre-
existing, bare, eroding stream banks with vegetated, stable stream 
banks, thereby reducing bank erosion and instream sedimentation and 
improving habitat conditions for the species. Following these methods, 
stream banks may be stabilized using live stakes (live, vegetative 
cuttings inserted or tamped into the ground in a manner that allows the 
stake to take root and grow), live fascines (live branch cuttings, 
usually willows, bound together into long, cigar shaped bundles), or 
brush layering (cuttings or branches of easily rooted tree species 
layered between successive lifts of soil fill). These methods would not 
include the sole use of quarried rock (rip-rap) or the use of rock 
baskets or gabion structures.
    (C) Bridge and culvert replacement/removal projects that remove 
migration barriers (e.g., collapsing, blocked, or perched culverts) or 
generally allow for improved upstream and downstream movements of 
Kentucky arrow darters while maintaining normal stream flows, 
preventing bed and bank erosion, and improving habitat conditions for 
the species.
    (D) Repair and maintenance of USFS concrete plank stream crossings 
on the DBNF that allow for safe vehicle passage while maintaining 
instream habitats, reducing bank and stream bed erosion and instream 
sedimentation, and improving habitat conditions for the species. These 
concrete plank crossings have been an effective stream crossing 
structure on the DBNF and have been used for decades. Over time, the 
planks can be buried by sediment, undercut during storm events, or 
simply break down and decay. If these situations occur, the DBNF must 
make repairs or replace the affected plank.
* * * * *

    Dated: September 22, 2015.
Cynthia T. Martinez,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-25278 Filed 10-7-15; 8:45 am]
 BILLING CODE 4333-15-P