[Federal Register Volume 81, Number 193 (Wednesday, October 5, 2016)]
[Rules and Regulations]
[Pages 68963-68985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23545]


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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for Kentucky arrow darter (Etheostoma spilotum), a 
fish species from the upper Kentucky River basin in Kentucky. The 
effect of this regulation will be to add this species to the List of 
Endangered and Threatened Wildlife. We are also adopting a rule under 
section 4(d) of the Act (a ``4(d) rule'') to further provide for the 
conservation of the Kentucky arrow darter.

[[Page 68964]]


DATES: This rule becomes effective November 4, 2016.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/frankfort/. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we 
considered in this rulemaking will be available by appointment, during 
normal business hours at: U.S. Fish and Wildlife Service, Kentucky 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

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), we may list a species if it is endangered or threatened 
throughout all or a significant portion of its range. Listing a species 
as an endangered or threatened species can only be completed by issuing 
a rule.
    What this document does. This rule finalizes the listing of the 
Kentucky arrow darter (Etheostoma spilotum) as a threatened species. It 
also includes provisions published under section 4(d) of the Act that 
are necessary and advisable for the conservation of the Kentucky arrow 
darter.
    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. This decision to list the Kentucky arrow darter as 
threatened is based on three of the five factors (A, D, and E).
    Under section 4(d) of the Act, the Secretary of the Interior has 
discretion to issue such regulations as she deems necessary and 
advisable to provide for the conservation of threatened species. The 
Secretary also has the discretion to prohibit by regulation, with 
respect to a threatened species, any act prohibited by section 9(a)(1) 
of the Act.
    Summary of the major provisions of the 4(d) rule. The regulations 
in title 50 of the Code of Federal Regulations at 50 CFR 17.31(a) apply 
to threatened wildlife all the general prohibitions for endangered 
wildlife set forth at 50 CFR 17.21, and 50 CFR 17.31(c) states that 
whenever a 4(d) rule applies to a threatened species, the provisions of 
Sec.  17.31(a) do not apply to that species. The regulations at 50 CFR 
17.32 contain permit provisions for threatened species.
    Some activities that would normally be prohibited under 50 CFR 
17.31 and 17.32 will contribute to the conservation of the Kentucky 
arrow darter because habitat within some of the physically degraded 
streams must be improved before they are suitable for the species. 
Therefore, the Service has authorized certain species-specific 
exceptions for the Kentucky arrow darter under section 4(d) of the Act 
that may be appropriate to promote the conservation of this species. 
This 4(d) rule also exempts from the general prohibitions in 50 CFR 
17.32 take that is incidental to the following activities when 
conducted within habitats currently occupied by the Kentucky arrow 
darter:
    (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.
    (2) Bank stabilization projects that use bioengineering methods 
specified by the Kentucky Energy and Environment Cabinet and the 
Kentucky Transportation Cabinet.
    (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.
    (4) Repair and maintenance of U.S. Forest Service (USFS) concrete 
plank stream crossings in the Daniel Boone National Forest (DBNF).
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our listing determination is based on 
scientifically sound data, assumptions, and analyses. We invited these 
peer reviewers to comment on our listing proposal. We also considered 
all comments and information received during the comment period.
    Elsewhere in this Federal Register, we finalize designation of 
critical habitat for the Kentucky arrow darter under the Act.

Previous Federal Action

    Please refer to the proposed listing rule for the Kentucky arrow 
darter (80 FR 60962, October 8, 2015) for a detailed description of 
previous Federal actions concerning this species.

Summary of Comments and Recommendations

    In the proposed rule published on October 8, 2015 (80 FR 60962), we 
requested that all interested parties submit written comments on the 
proposal by December 7, 2015. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Lexington Herald-Leader and Louisville Courier Journal. We did not 
receive any requests for a public hearing. During the comment period, 
we received 47 comment letters in response to the proposed rule: 5 from 
peer reviewers, 1 from a State agency, and 41 from organizations or 
individuals. Two comment letters from organizations were accompanied by 
petitions containing a total of 15,388 signatures of persons supporting 
the proposed listing. Another organization submitted a separate comment 
letter on behalf of itself and 14 other organizations. None of the 47 
comment letters objected to the proposed rule to list the Kentucky 
arrow darter as threatened. All substantive information provided during 
the comment period has either been incorporated directly into this 
final determination or addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
Kentucky arrow darter and its habitat, biological needs, and threats. 
We received responses from five of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding the listing of 
Kentucky arrow darter. The peer reviewers all generally concurred with 
our methods and conclusions and provided additional information on the 
taxonomy, life history, and threats; technical clarifications; and 
suggestions to improve the final rule. The comments and supplementary 
information

[[Page 68965]]

provided by the peer reviewers improved the final version of this 
document, and we thank them for their efforts. Peer reviewer comments 
are addressed in the following summary and incorporated into the final 
rule as appropriate.
    (1) Comment: One peer reviewer stated that the Service should 
include any new information on growth, feeding, reproduction, or 
spawning of the Kentucky arrow darter obtained from recent captive-
propagation efforts by Conservation Fisheries, Inc. (CFI) in Knoxville, 
Tennessee.
    Our Response: New observations on spawning behavior and the growth 
and viability of eggs and larvae were made by CFI during recent 
captive-propagation efforts (2010 to present). We have incorporated 
language summarizing these findings under the Background--Habitat and 
Life History section of this final listing determination.
    (2) Comment: Two of the peer reviewers asked that we discuss the 
detectability of the Kentucky arrow darter during survey efforts and 
how this could affect our conclusions regarding the status of the 
species. More specifically, the peer reviewers raised the issue of 
imperfect detection, which is the inability of the surveyor to detect a 
species (even if present) due to surveyor error, low-density or 
rareness of the target species, or confounding variables such as 
environmental conditions (e.g., stream flow). The peer reviewers asked 
the Service to explain how it accounted for imperfect detection when 
evaluating the species' current distribution and status.
    Our Response: We recognize the importance and significance of 
imperfect detection when conducting surveys for rare or low-density 
species, and we agree that is possible a species can go undetected 
within a particular survey reach when it is actually present. However, 
we are also required, by statute and regulation, to base our 
determinations solely on the basis of the best scientific and 
commercial data available. We are confident that the survey data 
available to us at the time we prepared our proposed listing 
determination represented the best scientific and commercial data 
available. These data were collected by well-trained, professional 
biologists, who employed similar sampling techniques (single-pass 
electrofishing) across the entire potential range of the Kentucky arrow 
darter, which included historical darter locations, random locations, 
and locations associated with regulatory permitting, such as mining or 
transportation. Nearly 245 surveys were conducted for the species 
between 2007 and 2015, and the results of these surveys revealed a 
clear trend of habitat degradation and range curtailment for the 
species. Kentucky arrow darters may have gone undetected at a few sites 
(i.e., our detection of the species may have been imperfect at a few 
collection sites), but the species' overall decline and pattern of 
associated habitat degradation (e.g., elevated conductivity) was clear 
based on our review of available survey data.
    (3) Comment: One peer reviewer pointed out that some information we 
included on the reproductive behavior of the Kentucky arrow darter was 
actually based on research conducted on its closest relative, the 
Cumberland arrow darter (Etheostoma sagitta).
    Our Response: We concur with the peer reviewer and have 
incorporated language to address this topic under the Background--
Habitat and Life History section of this final listing determination.
    (4) Comment: Two peer reviewers suggested we expand our discussion 
of the effects of elevated conductivity on aquatic communities by 
including additional information related to the vulnerability of 
salamanders or other aquatic organisms.
    Our Response: We have added language to address this topic under 
the Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range--Water Quality Degradation section 
of this final listing determination.
    (5) Comment: One peer reviewer recommended we discuss the potential 
threat posed by anthropogenic barriers (e.g., perched culverts).
    Our Response: We added language to address this topic under the 
Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence--Restricted Range and Population Size section of this final 
listing determination.
    (6) Comment: One peer reviewer suggested that the spatial degree of 
impacts facing the Kentucky arrow darter could be more accurately 
estimated using the Kentucky Division of Water's probabilistic sampling 
data from the upper Kentucky River basin, as opposed to relying on data 
generated from fixed monitoring sites across the species' range.
    Our Response: We agree with the peer reviewer and have added 
language to address this topic under the Factor A. The Present or 
Threatened Destruction, Modification, or Curtailment of its Habitat or 
Range section of this final listing determination.
    (7) Comment: One peer reviewer offered new information on gill 
parasites and sewage bacteria, suggesting that these organisms 
represent potential threats to the Kentucky arrow darter under Factor 
C. Disease or Predation.
    Our Response: We agree with the peer reviewer that these organisms 
have the potential to adversely affect the Kentucky arrow darter, and 
we have added language to address this topic under the Factor C. 
Disease or Predation section of this final listing determination.
    (8) Comment: One peer reviewer commented that generalized natural 
channel design projects (i.e., Rosgen) may not be sufficient under 
provisions of the proposed section 4(d) rule, and individual designs 
would be needed to benefit the Kentucky arrow darter.
    Our Response: In the proposed listing determination, we proposed a 
species-specific section 4(d) rule to further promote the conservation 
of the Kentucky arrow darter. We concluded that activities such as 
stream reconfiguration/riparian restoration, bridge and culvert 
replacement or removal, bank stabilization, and stream crossing repair 
and maintenance would improve or restore physical habitat quality for 
the species and would provide an overall conservation benefit to the 
species. We concur with the peer reviewer that, under the proposed 4(d) 
rule, generalized stream restoration designs may not be sufficient to 
benefit the species. For this reason, the Service provided references 
and detailed descriptions of stream reconfigurations in the proposed 
rule, with an emphasis on stability, ecological function, and 
reconnection with groundwater systems.
    (9) Comment: One peer reviewer and one other commenter stated that 
the Service needed to clarify potentially conflicting statements 
regarding threats under Factor D (the inadequacy of the Surface Mining 
Control and Reclamation Act (SMCRA) as an existing regulatory 
mechanism) and our conclusion that surface coal mining and reclamation 
activities conducted in accordance with the 1996 biological opinion 
(1996 BO) between the Service and the Office of Surface Mining 
Reclamation and Enforcement (OSM) are unlikely to result in a violation 
of section 9 of the Act.
    Our Response: The peer reviewer and commenter are correct in 
stating that we considered existing regulatory mechanisms such as SMCRA 
to be inadequate in protecting the Kentucky arrow darter and its 
habitats. Habitats across the species' range have been degraded by 
water pollution and

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sedimentation associated with coal mining (e.g., elevated 
conductivity), and there is evidence of recent extirpations in 
watersheds impacted by mining (16 historical streams since the mid-
1990s).
    In the Provisions of the 4(d) Rule section of the proposed listing 
rule, we also stated that surface coal mining and reclamation 
activities, if conducted in accordance with existing regulations and 
permit conditions, would not result in violations of section 9 of the 
ESA. The 1996 BO is the result of a formal section 7 consultation 
between OSM and the Service on OSM's approval of State regulatory 
programs (primacy) under SMCRA. In Kentucky, the State has approved 
primacy under SMCRA and, therefore, operates under the 1996 BO to 
address adverse effects to federally listed species. Under the 1996 BO, 
SMCRA regulatory authorities are exempt from prohibitions of section 9 
of the ESA if they comply with the terms and conditions of the 1996 BO. 
The terms and conditions of the 1996 BO require that each SMCRA 
regulatory authority implement and comply with species-specific 
protective measures for federally listed species as developed by the 
Service and the regulatory authority. These measures may not eliminate 
all adverse effects (``take'') on the species or its habitat, but they 
are intended to minimize and avoid impacts to the greatest extent 
practical and to ensure that the proposed activity will not jeopardize 
the species' continued existence.
    (10) Comment: One peer reviewer stated the Service needs to 
coordinate with other agencies on protective conductivity levels under 
Kentucky's narrative aquatic life standards in order to protect the 
species.
    Our Response: We continue to share information with the Kentucky 
Department of Environmental Protection (KYDEP) on the species' status 
and threats; however, any future modifications to Kentucky's narrative 
aquatic life standards will be the responsibility of KYDEP and the U.S. 
Environmental Protection Agency (USEPA). We will continue to provide 
technical assistance when requested.
    (11) Comment: One peer reviewer commented that the Service should 
explain if recorded Kentucky arrow darter movements in Elisha Branch, 
Long Fork, and Hector Branch represent simple movements within home 
ranges (intrapopulational movements from pool to pool) or dispersal 
events (interpopulational movements).
    Our Response: We can only speculate as to whether the recorded 
movements in these streams represent simple movements within home 
ranges or dispersal events. Most are likely intrapopulational (pool to 
pool within the same stream), but a few observations on Elisha Creek 
and Long Fork may provide evidence of dispersal events 
(interpopulational). We have added language to address this topic under 
the Background--Habitat and Life History section of this final listing 
determination.
    (12) Comment: One peer reviewer stated that the Service should 
explain how we estimated abundance and recruitment of Kentucky arrow 
darters.
    Our Response: Kentucky arrow darter abundance per sampling reach 
was estimated based on observed captures during single-pass 
electrofishing surveys. As described in the proposed rule, these 
surveys typically involved qualitative searches of all available 
habitats within a 100- to 150-meter survey reach. Evidence of 
recruitment was based on the presence of multiple age-classes within a 
survey reach. All captured Kentucky arrow darters were measured (total 
length in millimeters), allowing for the discrimination of age classes.
    (13) Comment: One peer reviewer stated that the Service did not 
mention or discuss the relationship between land use and instream 
habitat conditions.
    Our Response: We do not specifically mention the influence of land 
use and how it relates to instream habitat conditions; however, the 
Factor A discussion offers multiple examples of how differing land uses 
(e.g., resource extraction, residential development) can affect water 
quality and physical habitat conditions.
    (14) Comment: One peer reviewer asked us to clarify whether the 
Kentucky arrow darter was sensitive to high light conditions (loss of 
riparian vegetation and stream canopy).
    Our Response: Increased light conditions have been shown to be a 
threat to other aquatic organisms, but its impact on the Kentucky arrow 
darter is unknown. We have added language to address this topic under 
the Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range section of this final listing 
determination.
    (15) Comment: One peer reviewer commented that nonnative rainbow 
trout may compete with Kentucky arrow darters for food resources and 
space.
    Our Response: Within Big Double Creek, the only stream occupied by 
both species, nonnative rainbow trout and Kentucky arrow darters could 
complete for food and space as both feed on aquatic insects and both 
occupy similar habitats (pools). However, we do not believe that 
competition from nonnative trout represents a widespread, high-
magnitude threat to the species across its range. Potential competition 
from nonnative trout is limited to Big Double Creek, and recent surveys 
in Big Double Creek demonstrate that the Kentucky arrow darter 
population is healthy and stable (see Factor C: Disease or Predation).
    (16) Comment: One peer reviewer, the Kentucky Division of Forestry, 
and several other commenters provided comments on the effectiveness of 
best management practices (BMP) and compliance issues related to the 
Kentucky Forest Conservation Act. In general, the peer reviewers and 
commenters stated that BMPs were effective at preventing sediment 
runoff from logging sites, thereby protecting water quality and 
instream habitats. They also explained that BMP implementation rates in 
the upper Kentucky River basin were higher than those reported in the 
proposed listing determination. Based on these factors, the reviewers 
stated the Service should reconsider its claim that the Kentucky Forest 
Conservation Act is an ineffective regulatory mechanism. To support 
their request, the reviewers provided updated and revised inspection 
data and new information related to BMP elements designed to improve 
BMP effectiveness.
    Our Response: We agree with the commenters that BMP implementation 
rates are relatively high in the upper Kentucky River basin (greater 
than 70 percent), and forestry BMPs are effective in protecting water 
quality and instream habitats. However, as we discuss in the Factor D. 
The Inadequacy of Existing Regulatory Mechanisms section of this final 
listing determination, BMP compliance at inspected sites in the upper 
Kentucky River basin was only 73 percent between May 2014 and October 
2015. Remedial actions were implemented at most noncompliant sites (74 
percent) within a few months, but 26 percent of these sites remained 
noncompliant. The primary reason for noncompliance was related to the 
inadequate control of sediment laden runoff from skid trails, roads, 
and landings. Therefore, we agree with the commenters that forestry 
BMPs are effective in protecting water quality and preventing 
sedimentation; however, these impacts continue to occur within the 
upper Kentucky River basin due to BMP noncompliance. We have 
incorporated new compliance information provided by the commenters 
under the Factor D--The Inadequacy of Existing Regulatory Mechanisms 
section of this final listing determination. We have also included 
additional text regarding recent changes

[[Page 68967]]

to Kentucky's BMP standards, which will be more protective of stream 
habitats. We agree with the peer reviewer and other commenters that BMP 
compliance rates were higher than those reported in the proposed 
listing rule, and recent changes to Kentucky's BMP standards will be 
more protective of stream habitats. However, BMP noncompliance 
continues to occur at some sites (about 26 percent), remedial actions 
at these sites sometimes take several months to complete, and some of 
these sites (6.5 percent) are never remediated.
    (17) Comment: One peer reviewer recommended that the Service modify 
the discussion regarding genetic variation and gene flow because a 
detailed study of these factors is lacking.
    Our Response: We concur with the peer reviewer and have modified 
our text accordingly in the Factor E. Other Natural or Manmade Factors 
Affecting Its Continued Existence--Restricted Range and Population Size 
section of this final listing determination.

Public Comments

    (18) Comment: One commenter stated that the Service failed to 
consider how the Kentucky arrow darter's habitat is affected by the 
surrounding human population. This same commenter also suggested that 
mountaintop mining and fracking were not considered as potential 
threats to the species in the proposed rule, but should have been.
    Our Response: We discussed a variety of human-induced habitat 
threats under the Factor A. The Present or Threatened Destruction, 
Modification, or Curtailment of its Habitat or Range section of this 
listing determination. In that section, we also provided a detailed 
summary of threats related to fracking and described specific impacts 
associated with a spill of chemicals used during the drilling process. 
Mountaintop coal mining is not mentioned within the proposed rule, but 
any potential impacts associated with mountaintop mining are addressed 
in our detailed discussion of impacts associated with surface coal 
mining in the Factor A. The Present or Threatened Destruction, 
Modification, or Curtailment of its Habitat or Range section of this 
listing determination. Surface coal mining is a broad category of coal 
mining that includes a variety of methods, such as area, auger, 
contour, and mountaintop mining.
    (19) Comment: One commenter had concerns over perceived regulatory 
gaps associated with oil and gas development (and related 
infrastructure) on the Redbird Ranger District of the DBNF. Because 
some oil and gas resources within the Redbird Ranger District are 
privately owned, the commenter believed resource extraction activities 
in these areas would be exempt from National Environmental Policy Act 
(NEPA) requirements, and these projects would not be evaluated as 
closely for potential adverse effects to natural resources as 
activities occurring in areas under public ownership.
    Our Response: The commenter is correct that mineral resources 
(i.e., coal, natural gas, oil) underlying much of the Redbird District 
of the DBNF are in private ownership, and that no Federal nexus exists 
with regard to actions associated with these minerals (including coal, 
oil/gas) in the DBNF. Because these mineral resources are in private 
ownership, oil and gas exploration activities taking place within them 
would not be subject to NEPA, and there would be no requirement for the 
DBNF to consult with the Service under section 7 of the ESA or apply 
standards of the DBNF's Land and Resource Management Plan (Forest Plan) 
to these privately held areas. The Service recognizes these regulatory 
gaps (with respect to privately held minerals) on the DBNF and has 
added language to the Factor D. The Inadequacy of Existing Regulatory 
Mechanisms section in this final listing determination.
    (20) Comment: One commenter stated that the recently signed 
Candidate Conservation Agreement (CCA) between the Service and U.S. 
Forest Service fails to create new conservation measures that will be 
implemented on the DBNF to protect the Kentucky arrow darter.
    Our Response: The CCA involves several new conservation measures 
that will benefit the species. Some of these measures include (1) the 
development and implementation of a long-term management and monitoring 
program for Kentucky arrow darter populations on the DBNF; (2) an 
inventory and mapping project of natural gas lines, oil wells, roads, 
other facilities, land ownership, and mineral ownership within Kentucky 
arrow darter watersheds on the DBNF; (3) the identification of 
restoration or enhancement opportunities for Kentucky arrow darter 
streams in coordination with Forest Plan standards, implementing those 
opportunities as funding and other resources allow; and (4) the 
initiation of an annual Kentucky arrow darter conservation meeting 
between the Service and DBNF to discuss the results of implementing the 
CCA. These and other conservation measures included in the CCA will 
benefit the species; however, these actions did not influence our final 
listing determination. The actions outlined in the CCA apply only to 
portions of Kentucky arrow streams located within the DBNF. The 
majority of Kentucky arrow populations (streams) and about 74 percent 
of the species' occupied habitat are located in areas outside of the 
DBNF that are not covered by the CCA. These populations will not 
benefit from specific conservation measures described in the CCA and 
will continue to be vulnerable to a variety of threats (see Factor A: 
The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range).
    (21) Comment: One commenter disagreed with our description of roads 
on Robinson Forest, a 59.9-km \2\ (14,800-acre (ac)) experimental 
forest owned and managed by the University of Kentucky (UK). The 
commenter stated that the roads on Robinson Forest are used for forest 
access and management and should not be described as logging roads. The 
same commenter also stated that, in addition to protection from mining 
provided through the Lands Unsuitable for Mining designation in the 
Kentucky Administrative Regulations (405 KAR 24:040), habitats within 
Robinson Forest are protected from potential habitat disturbance 
associated with private or recreational all-terrain vehicle (ATV) use.
    Our Response: We agree with the commenter that roads on Robinson 
Forest should not be described as logging roads, and we have revised 
the corresponding text under the Population Estimates and Status 
section of this final rule. Under the Factor D. The Inadequacy of 
Existing Regulatory Mechanisms section of this final listing 
determination, we have added a description of UK's management 
guidelines for Robinson Forest. Under these guidelines, public access 
to Robinson Forest is controlled, and potential impacts from such 
activities as recreational ATV use are avoided.

Summary of Changes From the Proposed Rule

    We have considered all comments and information received during the 
open comment period for the proposed rule to list the Kentucky arrow 
darter as threatened. In this final rule, we have added species 
description and life-history information to the background section, and 
we have revised and updated the threats discussion (Summary of Factors 
Affecting the Species section). We added new information on spawning 
behavior and the development and viability of eggs, based on 
observations made during captive-propagation efforts by CFI. We

[[Page 68968]]

also clarified information related to darter movements, discussing the 
difference between dispersal (intertributary movement) and simple 
movements within the same stream (intratributary movement). We added a 
more detailed description of feeding behavior, relying on observations 
made for the closely related Cumberland arrow darter in Tennessee. With 
regard to threats, we:
--Used new probabilistic data generated by the Kentucky Division of 
Water (KDOW) to demonstrate the spatial degree of threats across the 
species' range,
--Added new information summarizing the vulnerability of salamanders 
and other aquatic organisms to elevated conductivity,
--Briefly discussed the potential impact of high light conditions 
(stream canopy loss),
--Discussed the potential threat posed by sewage bacteria and 
parasites,
--Incorporated new forestry BMP compliance information and descriptions 
of new BMP standards in Kentucky, and
--Added text summarizing the threat posed by anthropogenic barriers 
(e.g., perched culverts).

Background

Species Information

Species Description and Taxonomy
    A thorough account of Kentucky arrow darter life history is 
presented in the preamble to the proposed rule (October 8, 2015, 80 FR 
60962), and that information is incorporated here by reference. The 
following is a summary of that information. We have incorporated new 
information into the final rule, as appropriate (see Summary of Changes 
from the Proposed Rule).
    The Kentucky arrow darter, Etheostoma spilotum Gilbert, is a small 
and compressed fish, with a background color of straw yellow to pale 
greenish and a body covered by a variety of stripes and blotches. 
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 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). A 
similar darter species, 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 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 
in 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. 
During spawning (April to June), the species utilizes riffle habitats 
with moderate flow (Kuehne and Barbour 1983, p. 71). 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 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; ATS 2011, p. 
7; Service unpublished data).
    Little information is available on the reproductive behavior of the 
Kentucky arrow darter; however, general details were provided by Kuehne 
and Barbour (1983, p. 71), and more specific information can be 
inferred from studies of the closely related Cumberland arrow darter 
conducted by Bailey (1948, pp. 82-84) and Lowe (1979, pp. 44-50). Male 
Kentucky arrow darters establish territories over riffles and defend a 
fanned out depression in the substrate. After spawning, it is assumed 
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. 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.).
    Captive-propagation efforts by CFI (2010-present) have yielded 
observations related to spawning behavior and the development and 
viability of eggs and larvae (Petty et al. 2015, pp. 4-7). The spawning 
period is dependent on several factors, but laboratory observations 
suggest that water temperature is likely a significant determinant of 
when spawning begins and how long it continues (Petty et al. 2015, p. 
7). The appearance of larvae in the laboratory appeared to be delayed 
by cool water temperatures (less than 10 [deg]C), suggesting that 
cooler temperatures may (1) affect egg viability and/or larval 
survivorship or (2) simply increase development times of eggs and/or 
larvae. Another potential factor related to spawning period is the age 
and size of breeding darters. In the laboratory, large, older 
individuals spawned earlier and terminated earlier, while smaller, 
younger individuals matured and spawned later. Petty et al. (2015, p. 
7) cautioned that hatchery observations are necessarily biased by the 
selection and use of mostly larger individuals in attempts to maximize 
production, so these larger individuals may not reflect the natural 
variation in wild populations with greater demographic (and 
environmental) diversity.
    Kentucky arrow darters 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). 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 late autumn 
and winter 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, a movement study at 
Eastern Kentucky University (EKU) and a reintroduction project in the 
DBNF suggest that Kentucky arrow darters can move considerable 
distances (Baxter 2015, entire; Thomas 2015a, pers. comm.), which we 
summarize below.
    The EKU study used 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 2015, pp. 9-11). 
PIT-tags were placed in a total of 126 individuals, and Kentucky arrow 
darter movements were tracked from May 2013 to May 2014 (Baxter 2015, 
pp. 15, 19-21, 35-36). Recorded movements ranged from 134 m (439 ft) 
(upstream movement) to 4,078 m

[[Page 68969]]

(13,379 ft or 2.5 mi) (downstream movement by a female in Elisha 
Creek). Intermediate recorded movements 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). Based on this 
research, we believe it is likely that most of these documented 
movements could best be described as intrapopulational and represent 
individual darters moving between stream pools of Elisha Creek. In the 
case of the female arrow darter that moved unidirectionally from the 
headwaters of Elisha Creek to its mouth (a distance of more than 4,000 
m (2.5 mi)), this documented movement could represent an 
interpopulational event (dispersal), where an individual leaves one 
population and travels to another population (or stream). Further 
research is needed to differentiate these behaviors.
    Since August 2012, the Kentucky Department of Fish and Wildlife 
Resources (KDFWR) and CFI have been releasing captive-bred Kentucky 
arrow darters into a 1.5-km (0.9 mi) reach of Long Fork, a DBNF stream 
and first-order tributary to Hector Branch in eastern Clay County, 
Kentucky, where the species formerly occurred but has been extirpated. 
Researchers have tagged and released a total of 1,447 Kentucky arrow 
darters (about 50-55 mm TL) and have conducted monitoring on 14 
occasions since the initial release using visual searches and seining 
methods. Tagged darters have been observed throughout the Long Fork 
mainstem, and some individuals have moved considerable distances (up to 
1.0 km (0.4 mi)) downstream into Hector Branch. Based on these results, 
it is clear that young Kentucky arrow darters can disperse both 
upstream and downstream from their place of origin and can move 
considerable distances.
    Kentucky arrow darters feed primarily on mayflies (Order 
Ephemeroptera), with larger darters also feeding on small crayfishes. 
Other food items include larval blackflies, midges, caddisfly larvae, 
stonefly nymphs, beetle larvae, microcrustaceans, and dipteran larvae 
(Lotrich 1973, p. 381; Etnier and Starnes 1993, p. 523).
Historical Range and Distribution
    A thorough account of the Kentucky arrow darter's historical range 
is presented in the preamble to the proposed rule (October 8, 2015, 80 
FR 60962), and that information is incorporated here by reference. The 
following is a summary of that information with new information added 
as appropriate (see Summary of Changes from the Proposed Rule).
    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 68970]]

[GRAPHIC] [TIFF OMITTED] TR05OC16.029

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 eight of these streams have 
been discovered since 2006, and one additional population (Long Fork, 
Clay County) was reestablished through a reintroduction project led by 
KDFWR. 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 watershed).
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 final rule, 
the term ``population'' is used in a geographical context and not in a 
genetic context, and is defined as all individuals of the species 
living in one stream at a given time. 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 habitat conditions are favorable for 
reproduction (e.g., low siltation, water chemistry at normal levels).
    We are using the following generalized sets of criteria to 
categorize the relative status of populations of 83 streams (74 
historical and 9 nonhistorical, discovered or established since 2006) 
included in table 1. Similar criteria have been used by the Service in 
previous proposed listing rules (76 FR 3392, January 19, 2011; 77 FR 
63440, October 16, 2012):
    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

[[Page 68971]]

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 (fishes originating from another stream that occupy a 
particular habitat for only a short time).

  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 last
          Sub-basin             Sub-basin tributaries            Stream \1\                     County                 Current status       observation
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Fork..................  Lotts Creek..............  Lotts Creek..............  Perry........................  Extirpated...........            1890
                              Troublesome Creek........  Left Fork................  Knott........................  Extirpated...........            1890
                                                         Troublesome Creek........  Perry........................  Extirpated...........            1890
                                                         Mill Creek...............  Knott........................  Extirpated...........            1995
                                                         Laurel Fork (of Balls      Knott........................  Extirpated...........            1995
                                                          Fork).
                                                         Buckhorn Creek (Prince     Knott........................  Vulnerable...........            2011
                                                          Fork).
                                                         Eli Fork \1\.............  Knott........................  Vulnerable...........            2011
                                                         Boughcamp Branch.........  Knott........................  Extirpated...........            2011
                                                         Coles Fork...............  Breathitt, Knott.............  Stable...............            2011
                                                         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 Buckhorn)  Breathitt....................  Extirpated...........            1976
                                                         Lost Creek...............  Breathitt....................  Extirpated...........            1997
                              Quicksand Creek..........  Laurel Fork..............  Knott........................  Stable...............            2014
                                                         Baker Branch.............  Knott........................  Extirpated...........            1994
                                                         Middle Fork..............  Knott........................  Stable...............            2015
                                                         Spring Fork \1\..........  Breathitt....................  Vulnerable...........            2013
                                                         Wolf Creek...............  Breathitt....................  Extirpated...........            1995
                                                         Hunting Creek............  Breathitt....................  Vulnerable...........            2013
                                                         Leatherwood Creek........  Breathitt....................  Extirpated...........            1982
                                                         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 Creek........  Lower Devil Creek........  Lee, Wolfe...................  Extirpated...........            1998
                                                         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 Creek...  Hell For Certain Creek...  Leslie.......................  Stable...............            2013
                              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
                                                         Elisha Creek.............  Leslie.......................  Stable...............            2014
                                                         Gilberts Big Creek.......  Clay, Leslie.................  Stable...............            2013
                                                         Sugar Creek \1\..........  Clay, Leslie.................  Stable...............            2008
                                                         Big Double Creek.........  Clay.........................  Stable...............            2014
                                                         Little Double Creek......  Clay.........................  Stable...............            2008
                                                         Big Creek................  Clay.........................  Extirpated...........            1890
                                                         Jacks Creek..............  Clay.........................  Vulnerable...........            2009
                                                         Hector Branch............  Clay.........................  Extirpated...........            2015
                                                         Long Fork (of Hector Br.)  Clay.........................  Stable...............            2014
                                                          \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 \1\........  Owsley.......................  Vulnerable...........            2014
                                                         Lucky Fork...............  Owsley.......................  Stable...............            2014
                                                         Left Fork................  Owsley.......................  Stable...............            2014

[[Page 68972]]

 
                                                         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 Creek.......  Lower Island Creek.......  Owsley.......................  Extirpated...........            1997
                              Cow Creek................  Right Fork Cow Creek.....  Owsley.......................  Extirpated...........            1997
                              Buck Creek...............  Buck Creek...............  Owsley.......................  Extirpated...........            1978
                              Lower Buffalo Creek......  Lower Buffalo Creek......  Lee, Owsley..................  Vulnerable...........            2007
Silver Creek................  .........................  .........................  Lee..........................  Vulnerable...........            2008
Sturgeon Creek..............  .........................  Travis Creek \1\.........  Jackson......................  Vulnerable...........            2008
                                                         Brushy Creek.............  Jackson, Owsley..............  Extirpated...........            1996
                                                         Little Sturgeon Creek....  Owsley.......................  Extirpated...........            1996
                                                         Wild Dog Creek...........  Jackson, Owsley..............  Stable...............            2007
                                                         Granny Dismal Creek \1\..  Lee, Owsley..................  Vulnerable...........            2013
                                                         Cooperas Cave Branch.....  Lee..........................  Extirpated...........            1996
                                                         Sturgeon Creek...........  Lee..........................  Extirpated...........            1998
Red River...................  Swift Camp Creek.........  Rockbridge Fork..........  Wolfe........................  Vulnerable...........            2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Non-historical occurrence discovered or established since 2006.

    In the period 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 (nonhistorical) 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 
visited in an effort to locate additional populations and 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 more than 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 more than 
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.
BILLING CODE 4333-15-P

[[Page 68973]]

[GRAPHIC] [TIFF OMITTED] TR05OC16.030


[[Page 68974]]


[GRAPHIC] [TIFF OMITTED] TR05OC16.031

BILLING CODE 4333-15-C
    A synopsis of the Kentucky arrow darter's current range and status 
is provided in the preamble to the proposed rule, and that information 
is incorporated here by reference.
    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). ATS (2011, pp. 4-
6) observed similar densities at occupied sampling reaches in the 
Buckhorn Creek watershed. 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

[[Page 68975]]

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) (Baxter 2015, pp. 14-15, 18-19).
    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 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

    A thorough discussion of Kentucky arrow darter habitat destruction 
or modification is presented in the preamble to the proposed rule 
(October 8, 2015, 80 FR 60962), and that information is incorporated 
here by reference. The following is a summary of that information.
    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). Results 
of probabilistic surveys (i.e., surveys conducted at randomly selected 
sites with sites selected in a statistically valid way) by KDOW 
demonstrate the spatial degree of threats across the species' range. 
Out of 22 probabilistic sites (streams) visited within the upper 
Kentucky River basin in 2003, 18 were considered to be impaired (Payne 
2016, pers. comm.), suggesting habitats across the species' range are 
impacted by the specific stressors identified 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(s)--stream   Pollutant source        Pollutant
                                                        km (stream mi)
----------------------------------------------------------------------------------------------------------------
Buckhorn Creek..................  Breathitt.........            0-10.0    Abandoned Mine      Fecal Coliform
                                                               (0-6.8)     Lands, Unknown      (FC), Sediment/
                                                                           Sources.            Siltation, Total
                                                                                               Dissolved Solids
                                                                                               (TDS).
Cope Fork (of Frozen Creek).....  Breathitt.........             0-3.0    Channelization,     Sediment/
                                                               (0-1.9)     Riparian Habitat    Siltation, TDS.
                                                                           Loss, Logging,
                                                                           Agriculture,
                                                                           Stream Bank
                                                                           Modification,
                                                                           Surface Coal
                                                                           Mining.
Cutshin Creek...................  Leslie............         15.6-17.2    Riparian Habitat    Sediment/
                                                            (9.7-10.7)     Loss, Stream Bank   Siltation.
                                                                           Modification,
                                                                           Surface Coal
                                                                           Mining.
Frozen Creek *..................  Breathitt.........            0-22.4    Riparian Habitat    Sediment/
                                                              (0-13.9)     Loss, Post-         Siltation.
                                                                           Development
                                                                           Erosion and
                                                                           Sedimentation.

[[Page 68976]]

 
Goose Creek.....................  Clay..............            0-13.4    Septic Systems....  FC.
                                                               (0-8.3)
Hector Branch...................  Clay..............             0-8.8    Unknown...........  Unknown.
                                                               (0-5.5)
Holly Creek *...................  Wolfe.............             0-9.8    Agriculture,        Sediment/
                                                               (0-6.2)     Riparian Habitat    Siltation,
                                                                           Loss, Stream Bank   Unknown.
                                                                           Modification,
                                                                           Surface Coal
                                                                           Mining.
Horse Creek *...................  Clay..............            0-13.4    Riparian Habitat    Sediment/
                                                               (0-8.3)     Loss, Managed       Siltation.
                                                                           Pasture Grazing,
                                                                           Surface Coal
                                                                           Mining.
Laurel Creek....................  Clay..............           6.1-7.7    Managed Pasture     Nutrients/
                                                             (3.8-4.8)     Grazing, Crop       Eutrophication.
                                                                           Production.
Left Fork Island Creek..........  Owsley............             0-8.0    Crop Production...  Sediment/
                                                               (0-5.0)                         Siltation.
Long Fork.......................  Breathitt.........             0-7.4    Surface Coal        Sediment/
                                                               (0-4.6)     Mining.             Siltation, TDS.
Lost Creek......................  Breathitt.........            0-14.3    Coal Mining,        FC, Sedimentation,
                                                               (0-8.9)     Riparian Habitat    TDS, Turbidity.
                                                                           Loss, Logging,
                                                                           Stream Bank
                                                                           Modification.
Lotts Creek.....................  Perry.............  0.6-1.6, 1.9-9.6    Riparian Habitat    Sediment/
                                                      (0.4-1.0, 1.2-6.0)   Loss, Land          Siltation, TDS,
                                                                           Development,        Turbidity.
                                                                           Surface Coal
                                                                           Mining, Logging,
                                                                           Stream Bank
                                                                           Modification.
Quicksand Creek.................  Breathitt.........           0-27.4,    Surface Coal        FC, Turbidity,
                                                             34.9-49.6     Mining, Riparian    Sediment/
                                                        (0-17.0, 21.7-     Habitat Loss,       Siltation, TDS.
                                                                 30.8)     Logging, Stream
                                                                           Bank Modification.
Sexton Creek....................  Clay, Owsley......            0-27.7    Crop Production,    Sediment/
                                                              (0-17.2)     Highway/Road/       Siltation, TDS.
                                                                           Bridge Runoff.
South Fork Quicksand Creek......  Breathitt.........            0-27.2    Riparian Habitat    Sediment/
                                                              (0-16.9)     Loss, Petroleum/    Siltation, TDS.
                                                                           Natural Gas
                                                                           Production
                                                                           Activities,
                                                                           Surface Coal
                                                                           Mining.
Spring Fork (Quicksand Creek) *.  Breathitt.........          5.0-11.1    Abandoned Mine      Sediment/
                                                             (3.1-6.9)     Lands (Inactive),   Siltation, TDS,
                                                                           Riparian Habitat    Turbidity.
                                                                           Loss, Logging,
                                                                           Stream Bank
                                                                           Modification.
Squabble Creek *................  Perry.............             0-7.6    Land Development,   Sediment/
                                                               (0-4.7)     Surface Coal        Siltation, TDS.
                                                                           Mining.
Sturgeon Creek..................  Lee...............         12.9-19.6    Riparian Habitat    Sediment/
                                                            (8.0-12.2)     Loss, Crop          Siltation.
                                                                           Production,
                                                                           Surface Coal
                                                                           Mining.
Swift Camp Creek................  Wolfe.............            0-22.4    Unknown...........  Unknown.
                                                              (0-13.9)
Troublesome Creek...............  Breathitt.........            0-72.6    Surface Coal        Sediment/
                                                              (0-45.1)     Mining, Municipal   Siltation,
                                                                           Point Source        Specific
                                                                           Discharges,         Conductance, TDS,
                                                                           Petroleum/Natural   Turbidity.
                                                                           Gas Activities.
----------------------------------------------------------------------------------------------------------------
* Stream segment still occupied by Kentucky arrow darters.

Water Quality Degradation
    One 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 this activity 
continues to occur throughout the drainage.
    Activities associated with coal mining 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). The coal 
mining process also results in leaching of metals and other dissolved 
solids that 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), reduced

[[Page 68977]]

occupancy and conditional abundance of salamanders (Price et al. 2015, 
pp. 6-9), 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; Hitt et 
al. 2016, pp. 46-52).
    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 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, pp. 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). 
Hitt et al. (2016, entire) reported that conductivity was a strong 
predictor of Kentucky arrow darter abundance in the upper Kentucky 
River drainage, and sharp declines in abundance were observed at 258 
[mu]S/cm (95 percent confidence intervals of 155-590 [mu]S/cm). Based 
on the research presented in the preamble to the proposed rule and 
incorporated by reference here, 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 the Kentucky arrow darter is influenced 
will require additional study (KSNPC 2010, p. 3; Pond 2015, pers. 
comm.); however, conductivity thresholds have been evaluated for other 
aquatic species. Elevated specific conductance has been positively 
correlated with decreased macroinvertebrate abundance (Pond et al. 
2008, pp. 725-726; Pond 2012, p. 111), and Johnson et al. (2015, pp. 
170-171) showed that daily growth rates and development of a mayfly 
(Neocleon triagnulifer) declined with increasing ionic concentrations. 
Increased levels of specific conductance have been shown to influence 
the behavior (Karraker et al. 2008, pp. 728-732) and corticosterone 
levels (a hormone secreted by the adrenal cortex that regulates energy, 
immune reactions, and stress responses) of amphibians (Chambers 2011, 
pp. 220-222). Embryonic and larval survival of amphibians were reduced 
significantly at moderate (500 [mu]S/cm) and high (3,000 [mu]S/cm) 
specific conductance levels (Karraker et al. 2008, pp. 728-732).
    Mine drainage can also cause chemical (and some physical) effects 
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). 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.
    Oil and gas exploration and drilling activities represent another 
significant source of harmful pollutants in the upper Kentucky River 
basin (KDOW 2013a, pp. 189-214). Once used, fluid wastes containing 
chemicals used in the drilling and fracking process (e.g., hydrochloric 
acid, surfactants, potassium chloride) 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. 
5,680-5,681; Osborn et al. 2011, pp. 8,172-8,176; Papoulias and Velasco 
2013, pp. 92-111).
    Other nonpoint-source pollutants common within the upper Kentucky 
River drainage with 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 may be correlated with impervious surfaces 
and storm water runoff (Allan 2004, pp. 266-267) and include sediments, 
fertilizers, herbicides, pesticides, animal wastes, septic tank and 
gray water leakage, pharmaceuticals, and petroleum products.
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.
    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). 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). Stormwater runoff from unpaved roads, ATV trails, 
and driveways represents a significant but difficult to quantify source 
of sediment that impacts streams in the upper Kentucky River basin.
    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 (Adelges tsugae), an aphid-like insect 
native to Asia, represents a potential threat to the Kentucky arrow 
darter because it has

[[Page 68978]]

the potential to severely damage stands of eastern hemlocks (Tsuga 
canadensis) that occur within the species' range. 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 because eastern hemlocks are not 
abundant in all portions of the Kentucky arrow darter's range, and even 
where hemlocks are more common, we expect them to be replaced by other 
tree species.
    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 darter 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 specific information is available suggesting that disease is a 
threat to the Kentucky arrow darter; however, in marginal Kentucky 
arrow darter streams (those with impacts from industrial or residential 
development), the occurrence of sewage-bacteria (Sphaerotilus) may a 
pose a threat with respect to fish condition and health (Pond 2015, 
pers. comm.). These bacteria are prevalent in many eastern Kentucky 
streams where straight-pipe sewage discharges exist and can often 
affect other freshwater organisms. The presence of these bacteria could 
also indicate the presence of other pathogens. Gill and body parasites 
such as flukes (flatworms) and nematodes (roundworms) have been noted 
in other species of Etheostoma (Page and Mayden 1981, p. 8), but it is 
unknown if these parasites infest or harm the Kentucky arrow darter.
    Although the Kentucky arrow darter is undoubtedly consumed by 
native predators (e.g., fishes, amphibians, and birds), 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) in one 
Kentucky arrow darter stream, Big Double Creek (Clay County), because 
KDFWR stocks up to 1,000 trout annually in the stream, with releases 
occurring in March, April, May, and October. 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, which was 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 (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 demonstrates that predation by nonnative rainbow trout does not 
pose a threat to the species.
    In short, 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). 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 nongame fish less than 
6 inches in length, with the exception of federally listed species). 
These existing regulatory mechanisms provide some protections for 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). Streams within Robinson Forest (e.g., Clemons Fork 
and Coles Fork) are also protected from general disturbance by 
management guidelines approved by the UK's Board of Trustees in 2004 
(Stringer 2015, pers. comm.). These guidelines provide general land use 
allocations, sustainable allowances for active research and 
demonstration projects involving overstory manipulation, allocations of 
net revenues from research and demonstration activities, and management 
and oversight responsibilities (Stringer 2015, pers. comm.). Under 
these guidelines, public access to Robinson Forest is controlled and 
potential impacts from such activities as recreational ATV use are 
avoided.
    A significant portion (about 47 percent) of the species' remaining 
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) and a recently signed CCA between the DBNF and 
the Service (see Comment and Response #20 in the Summary of Comments 
and Recommendations section). Both of these documents contain 
conservation

[[Page 68979]]

measures and protective standards that are intended to conserve the 
Kentucky arrow darter on the DBNF. Populations within the DBNF 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, sedimentation and 
other nonpoint-source pollutants continue to pose a threat to the 
species.
    The KDOW has not established total maximum daily load (TMDLs) 
pursuant to the Clean Water Act for identified pollutants within 
portions of the upper Kentucky River basin historically occupied by the 
Kentucky arrow darter. TMDLs do not 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 address the currently observed 
degradation of water quality.
    Despite the current laws to prevent sediment and other pollutants 
from entering waterways, nonpoint-source pollution, originating from 
mine sites, unpaved roads, ATV trails, driveways, logging skid trails, 
and other disturbed habitats is considered to be a continuing threat to 
Kentucky arrow darter habitats.
    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 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 itself (80 FR 44436, July 27, 2015). The preamble for 
that proposed rule stated that the 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, July 27, 2015; see 
SUMMARY). While the OSM 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.

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) likely restricts the natural exchange of 
genetic material between populations and could make natural 
repopulation following localized extirpations of the species unlikely 
without human intervention. Populations can be further isolated by 
anthropogenic barriers, such as dams, perched culverts, and fords, 
which can limit natural dispersal and restrict or eliminate 
connectivity among populations (Eisenhour and Floyd 2013, pp. 82-83). 
Such dispersal barriers can prevent reestablishment of Kentucky arrow 
populations in reaches where they suffer localized extinctions due to 
natural or human-caused events. The localized nature and small size of 
many populations also likely 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 (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).
Climate Change
    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
warming of the climate system is unequivocal (IPCC 2014, p. 3). 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) associated 
with an expected increase in both severity and variation in climate 
patterns 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). 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

[[Page 68980]]

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.
    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.

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), and remaining populations are fragmented and isolated. 
Despite existing regulatory mechanisms (Factor D) and conservation 
efforts, the species continues to be at risk throughout all of its 
range due to the immediacy, severity, and scope of threats from habitat 
degradation and range curtailment (Factor A 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; however, recent 
extirpations have occurred (16 streams since the 1990s), and 21 streams 
within the species' historical range have been added to Kentucky's 
303(d) list of impaired streams. 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. Despite existing regulatory 
mechanisms and conservation efforts, current Kentucky 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. 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 are 
listing the Kentucky arrow darter as a threatened species in accordance 
with sections 3(19) 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

[[Page 68981]]

cooperation with the States 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. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our Web site 
(http://www.fws.gov/endangered), or from our 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.
    Following publication of this final rule, 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.
    Please let us know if you are interested in participating in 
recovery efforts for the Kentucky arrow darter. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is 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)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, the responsible Federal agency must enter into 
consultation with the Service.
    Federal agency actions within the species' habitat that may require 
consultation 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; USEPA 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.
    The Service, in cooperation with KDFWR, KSNPC, the 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 and 
E, respectively).
    Several conservation efforts have been completed or are ongoing for 
the Kentucky arrow darter, and some of these efforts have been 
described previously in this listing determination. Previously 
mentioned efforts include the development of a CCA with the USFS (see 
Public Comments, Comment 20), a propagation and reintroduction study by 
KDFWR and CFI (see Background--Habitat and Life History), field 
investigations to determine the predatory risk posed by nonnative trout 
(see Factor C: Disease or Predation), and a movement and ecological 
study by EKU, KDFWR, and the Service (Baxter 2015, entire). Other 
important conservation actions 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). Details of these efforts are provided below.
    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

[[Page 68982]]

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 the 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.

4(d) 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 Sec. Sec.  17.31 and 17.32 are appropriate for 
the Kentucky arrow darter, we find that some activities that would 
normally be prohibited under Sec. Sec.  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, the Service has determined that a species-
specific section 4(d) rule is appropriate to promote the conservation 
of the Kentucky arrow darter. 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 
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 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.

Provisions of the 4(d) Rule

    This 4(d) rule exempts from the general prohibitions in 50 CFR 
17.32 take that is 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:

[[Page 68983]]

    (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 composed 
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 by the Kentucky Energy and Environment Cabinet and Kentucky 
Transportation Cabinet (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 
in 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 in the DBNF and have been used for decades. Over time, the 
planks can be buried by sediment or 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 that 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 believe that 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 identified in this rule will 
correct some of these problems, creating more favorable habitat 
conditions for the species.
    Based on the rationale above, the provisions included in this 4(d) 
rule are necessary and advisable to provide for the conservation of the 
Kentucky arrow darter. Nothing in this 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 4(d) rule). The intent of 
this policy is to increase public awareness of the effect of a final 
listing on proposed and ongoing activities within the range of a listed 
species. 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 requirements, and best 
management practices; and
    (2) Surface coal mining and reclamation activities conducted in 
accordance with the 1996 BO 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

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).

[[Page 68984]]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. No tribal lands or other interests are 
affected by the rule.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov in Docket No. FWS-R4-ES-
2015-0132 and upon request from the Kentucky Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final 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.

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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 set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name               Scientific name       Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
FISHES
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Darter, Kentucky arrow.........  Etheostoma spilotum..  Wherever found.  T..............  81 FR [Insert Federal
                                                                                           Register page where
                                                                                           the document begins];
                                                                                           October 5, 2016, 50
                                                                                           CFR 17.44(p)\4d\, 50
                                                                                           CFR 17.95(e) \CH\.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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) of this 
section must be conducted in a manner that:
    (A) Maintains connectivity of suitable Kentucky arrow darter 
habitats, allowing for dispersal between streams;
    (B) Minimizes instream disturbance by occurring during low-flow 
periods when possible; and
    (C) 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 wetland systems) that are reconnected with their groundwater 
aquifers. 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 composed 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 use State-approved 
bioengineering methods (specified by the Kentucky Energy and 
Environment Cabinet and the Kentucky Transportation Cabinet) to replace 
preexisting, 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.

[[Page 68985]]

    (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 U.S. Forest Service concrete plank 
stream crossings on the Daniel Boone National Forest (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 19, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-23545 Filed 10-4-16; 8:45 am]
 BILLING CODE 4333-15-P