[Federal Register Volume 83, Number 225 (Wednesday, November 21, 2018)]
[Rules and Regulations]
[Pages 58747-58754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25316]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2017-0056; 4500030113]
RIN 1018-BC44


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for the Candy Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended, for the candy darter (Etheostoma osburni), a 
freshwater fish species from Virginia and West Virginia. This rule adds 
this species to the Federal List of Endangered and Threatened Wildlife.

DATES: This rule is effective December 21, 2018.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and https://www.fws.gov/northeast/candydarter. 
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, West 
Virginia Ecological Services Field Office, 694 Beverly Pike, Elkins, WV 
26241-9475; telephone 304-636-6586.

FOR FURTHER INFORMATION CONTACT:  John Schmidt, Field Supervisor, West 
Virginia Ecological Services Field Office, 694 Beverly Pike, Elkins, WV 
26241-9475; telephone 304-636-6586. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

[[Page 58748]]

Previous Federal Actions

    Please refer to our October 4, 2017, proposed rule (82 FR 46197) 
for a detailed description of previous Federal actions concerning the 
candy darter. Elsewhere in today's Federal Register, we propose the 
designation of critical habitat for the candy darter; that proposal 
also discusses our intent to reestablish populations within the candy 
darter's historical range under section 10(j) of the Act in a future 
publication. And we are seeking public input on other potential 
recovery tools (e.g., safe harbor agreements), through the proposed 
critical habitat designation public comment period.

Background

    Please refer to our October 4, 2017, proposed rule (82 FR 46197) 
for a summary of species information available to the Service at the 
time that it was published. Based on information we received during the 
proposed rule's public comment period, we updated the current condition 
discussion in the species status assessment (SSA) report to more 
accurately reflect the current spread level of hybridization, which is 
the primary threat to the species, in the candy darter's range (Service 
2018). The candy darter's current condition is more degraded than we 
understood when we published the October 4, 2017, proposed listing 
rule. Consequently, because the species' current condition (i.e., the 
baseline or starting point for the SSA's future scenario projections) 
is more degraded, the species' future condition is also likely to be 
further degraded than we had previously estimated. With this more 
accurate reflection of the candy darter's current condition, the risk 
of extinction is greater than we had previously understood, and we have 
determined that the species does not meet the definition of a 
threatened species (as proposed). We find that endangered is the 
appropriate status for the candy darter (see Determination, below).
    We also received information during the public comment period that 
demonstrates a stronger genetic separation between candy darters in the 
Greenbrier watershed and the Gauley watershed. All the information was 
incorporated into an updated version of the SSA report, which is 
available online at https://www.fws.gov/northeast/candydarter.

Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. We completed a comprehensive 
assessment of the biological status of the candy darter and prepared a 
report of the assessment (SSA report), which provides a thorough 
account of the species' overall viability using the conservation 
biology principles of resiliency, redundancy, and representation 
(collectively, the ``3Rs''). We have used the SSA report's assessment 
of the candy darter's current and potential future status, based on the 
factors influencing the species, framed in the context of the 3Rs, and 
information provided during the public comment period on the October 4, 
2017, proposed listing rule to inform our determination of whether the 
candy darter meets the definition of an endangered or a threatened 
species (see Determination, below).
    Because we have included information below about the candy darter's 
3Rs, we further define those terms here. Resiliency means having 
sufficiently large populations for the species to withstand stochastic 
events (arising from random factors). We can measure resiliency based 
on metrics of population health; for example, birth versus death rates 
and population size, if that information exists. Resilient populations 
are better able to withstand disturbances such as random fluctuations 
in birth rates (demographic stochasticity), variations in rainfall 
(environmental stochasticity), or the effects of human activities. 
Redundancy means having a sufficient number of populations for the 
species to withstand catastrophic events (such as a rare destructive 
natural event or episode involving many populations). Redundancy is 
about spreading the risk and can be measured through the duplication 
and distribution of populations across the range of the species. 
Generally, the greater the number of populations a species has 
distributed over a larger landscape, the better it can withstand 
catastrophic events. Representation means having the breadth of genetic 
makeup for the species to adapt to changing environmental conditions. 
Representation can be measured through the genetic diversity within and 
among populations and the ecological diversity (also called 
environmental variation or diversity) of populations across the 
species' range. The more representation, or diversity, a species has, 
the more it is capable of adapting to changes (natural or human caused) 
in its environment.
    In the absence of species-specific genetic and ecological diversity 
information, we evaluate representation based on the extent and 
variability of habitat characteristics within the geographical range. 
We define viability here as the ability of the species to persist in 
the wild over time and, conversely, to avoid extinction.
    Below, we summarize the conclusions of the candy darter's SSA 
analysis (Service 2018, entire), which can be accessed at Docket FWS-
R5-ES-2017-0056 on http://www.regulations.gov and at https://www.fws.gov/northeast/candydarter. The SSA report documents the results 
of our comprehensive biological status review for the candy darter, 
including an assessment of the factors influencing its continued 
existence. The SSA report does not represent a decision by the Service 
on whether the candy darter should be listed as an endangered or a 
threatened species under the Act. Rather, the SSA report provides the 
scientific basis that informs our regulatory decision, which involves 
the further application of standards within the Act and its 
implementing regulations and policies. The Act directs us to determine 
whether any species is an endangered species or a threatened species 
(i.e., whether it meets the definition of a threatened or endangered 
species) because of any factors affecting its continued existence. 
Below, we review the biological condition of the species and its 
resources and the factors influencing the species and resources to 
assess the species' overall viability and the risks to that viability.

Summary of Current Condition

    Historically, the candy darter consisted 35 populations in Virginia 
and West Virginia distributed across 7 metapopulations in the 
Bluestone, Lower New River, Upper Gauley, Lower Gauley, and Middle New 
watersheds in the Appalachian Plateaus physiographic province and the 
Upper New River and Greenbrier watersheds in the Valley and Ridge 
physiographic province. See Chapter 3 of the SSA report for more 
details (Service 2018, pp. 30-31).
    Within these two physiographic provinces, the candy darter has been 
extirpated from almost half of its historical range (17 of 35 (49 
percent) known populations, and 2 of 7 (29 percent) known 
metapopulations), with the extirpations representing a complete loss of 
resiliency in those populations (or metapopulations). We qualitatively 
assessed the remaining (extant) populations, placing them in ``low,'' 
``moderate,'' or ``high'' categories that represent the populations' 
potential to rebound after stochastic events. These categories were 
based on a combination of eight physical habitat, nonnative

[[Page 58749]]

competition, and candy darter demographic metrics (see Service 2018, 
pp. 51, 84-102). Of the 18 extant populations, 5 (28 percent) have a 
current score of high or moderate to high resiliency, 9 (50 percent) 
have moderate resiliency, and 4 (22 percent) have low or moderate to 
low resiliency (see table 4 in the SSA report (Service 2018, p, 46). 
The five populations with higher resiliency constitute three 
metapopulations (the Upper Gauley in the Appalachian Plateaus 
physiographic province and the Greenbrier and Middle New in the Valley 
and Ridge physiographic province); the remaining two extant 
metapopulations (the Lower Gauley in the Appalachian Plateaus 
physiographic province and the Upper New River in the Valley and Ridge 
physiographic province) maintain populations with moderate and low 
resiliency. Therefore, we conclude the candy darter's populations 
currently have moderate resiliency because the four out of the five 
metapopulations have moderate to high resiliency.
    This loss of these candy darter populations, which represent the 
species' genetic, ecological, and niche diversity within its historical 
range, as well as the fragmentation of extant populations, has 
compromised the species' ability to repatriate those areas or avoid 
species-level effects of a catastrophic event. Based on the species' 
distribution and condition within each of the seven historical 
metapopulations (one with moderate to high internal redundancy, one 
with moderate internal redundancy, one with low internal redundancy, 
two with no internal redundancy, and two that have been extirpated), we 
conclude, based on the best available data, that the candy darter's 
current redundancy is low (Service 2018, pp. 26-28, 49-50).
    While the candy darter currently maintains representation in both 
the Appalachian Plateaus and Valley and Ridge physiographic provinces, 
only a single metapopulation in each province has a moderate to high 
resiliency score. As related to the species' occupation in a diversity 
of environmental settings, candy darters have lost representation from 
lower mainstem rivers and tributaries. While researchers have noted 
differences in the genetic, physical, behavioral, or developmental 
characteristics of some stream fish species based on the species' 
longitudinal position in the watershed (e.g., stream size) (Neville et 
al. 2006, pp. 911-913), but we have no data indicating candy darters 
exhibit similar differences based on their particular environmental 
setting. Although the candy darter retains representation in both the 
Appalachian Plateaus and Valley and Ridge physiographic provinces, the 
species has a reduced distribution than it had historically and likely 
a reduced ability to respond to stochastic and catastrophic events, 
thereby putting the species at increased risk of extinction from any 
such events (Service 2018, pp. 50-51). The available genetic data for 
the candy darter indicate that the Upper and Lower Gauley River 
metapopulations are different from the Greenbrier metapopulation. While 
we have no information regarding the evolutionary significance of these 
genetic differences to either metapopulation, the loss of either 
metapopulation would represent a loss to the species' genetic 
diversity. Therefore, we conclude that the species' representation is 
currently moderate to low (Service 2018, pp. 26-29, 50-51).
    The candy darter is currently distributed in five of the historical 
seven metapopulations. The populations within those metapopulations 
generally have moderate to low resiliency and redundancy scores. While 
the candy darter is present in the two physiographic provinces from 
which it is historically known, the species is not found in lower 
mainstem rivers and tributaries in which it once existed (Service 2018, 
Chapter 3). This fact leads us to conclude the candy darter's 
representation is also moderate to low. Therefore, our analysis under 
the 3Rs leads us to conclude that the current condition of the candy 
darter is currently moderate to low.

Risk Factors for the Candy Darter

    Based on the candy darter's life history and habitat needs, and in 
consultation with species' experts from Virginia and West Virginia 
State and Federal agencies and academic institutions, we identified the 
potential stressors (negative influences), the contributing sources of 
those stressors, and conservation measures to address those stressors 
that are likely to affect the species' current condition and viability 
(Service 2018, pp. 32-43). We evaluated how these stressors may be 
currently affecting the species and whether, and to what extent, they 
would affect the species in the future (Service 2018, pp. 52-66). Water 
temperature, excessive sedimentation, habitat fragmentation, water 
chemistry, water flow, and nonnative competition likely influenced the 
species in the past and contributed to its current condition, and may 
continue to affect some populations in the future (Service 2018, pp. 
44, 46, 52-67). However, habitat stressors are not considered to be a 
primary source of risk to candy darter viability in the future. 
Hybridization with the closely related variegate darter (Etheostoma 
variatum) appears to be having, and will continue to have, the greatest 
influence on candy darter populations and the candy darter's overall 
viability within the next 25 years (Service 2018, pp. 52-66). While we 
acknowledge there is uncertainty regarding some of the scientific data 
and assumptions used to assess the biological condition of the candy 
darter, the species' experts generally agreed with the overall 
methodology for assessing the candy darter's current and projected 
future condition, and confirmed that the results were reflective of 
their observations of the candy darter and its habitat.
    As mentioned above, the primary stressor to the candy darter is 
hybridization with the variegate darter (Service 2018, pp. 32-37), a 
species that is native to the Kanawha River basin below the Kanawha 
Falls in Fayette County, West Virginia. The Kanawha Falls serve as a 
natural barrier to fish dispersal from the lower Kanawha River basin 
(and greater Ohio River basin) upstream into the range of the candy 
darter in the upper Kanawha River basin. However, in the late 20th 
century, the variegate darter was introduced, likely by ``bait bucket 
transfer,'' into the upper Kanawha basin. Since they were first 
observed in the upper Kanawha basin in 1982 and 2002, variegate darters 
have expanded their range approximately 3 to 9 stream miles per year 
over the course of the last 20 or more years within the range of the 
candy darter. Genetic studies have demonstrated that where variegate 
and candy darter ranges now overlap, the two species will hybridize, 
and consistent, repeated contact will quickly result in ``genetic 
swamping'' (the homogenization or replacement of native genotypes) of 
the endemic candy darter population and eventually its complete 
replacement by variegate darters or hybrids (Service 2018, pp. 32-37).

Summary of Future Conditions Analysis

    We modeled five scenarios to assess the potential viability of the 
candy darter at a point up to 25 years in the future (Service 2018, pp. 
52-66). Two scenarios were focused on habitat change (one positive and 
the other negative), and three scenarios were focused on variegate 
darter invasion. However, the habitat change scenarios, by themselves, 
are not plausible scenarios because variegate darter hybridization is 
ongoing and highly likely to continue (see chapter 4 and appendix B of 
the SSA report for

[[Page 58750]]

additional information). We chose to model all scenarios out to 25 
years because we have data to reasonably predict potential habitat and 
variegate darter changes and their effects on the candy darter within 
this timeframe.
    Under the three most plausible scenarios, those that include the 
variegate darter invasion, the predicted rate of variegate darter 
expansion and hybridization remains the same, and at the end of 25 
years, the candy darter will likely occur in four isolated populations 
and maintain little resilience, redundancy, or representation. The 
effects of significant positive or negative habitat changes do not 
alter this outcome; however, because variegate darters may be more 
tolerant of a wider range of habitat conditions, negative habitat 
changes could selectively benefit variegate darters and increase the 
rate at which candy darters are extirpated (Service 2018, p. 64).
    The candy darter SSA report (Service 2018, entire) contains a more 
detailed discussion of our evaluation of the biological status of the 
candy darter and the influences that may affect its continued 
existence. Our conclusions are based upon the best available scientific 
and commercial data, including the expert opinion of the species' 
experts (fishery biologists, aquatic ecologists, and geneticists from 
State and Federal agencies and academic institutions) and the SSA team 
members. Please see the SSA report for a complete list of the species 
experts and peer reviewers and their affiliations.

Summary of Changes From the Proposed Rule

    We received information during the public comment period that 
concluded we had inaccurately described the current condition of some 
populations of the candy darter. The current condition of the candy 
darter populations in five streams in the Upper Gauley watershed is 
more degraded than we had understood when we proposed the candy darter 
for listing. We inaccurately stated that ``[v]ariegate darters have not 
yet been detected in the remainder of the candy darter's range (i.e., 
the Upper Gauley watershed in West Virginia.'' Based on comments we 
received regarding the spread of the variegate darter in the upper 
Gauley drainage, the risk of hybridization appears imminent and may 
already be widespread (see Summary of Comments and Recommendations, 
below). We incorporated this information into an updated version of the 
SSA report (Service 2018). The risk of extinction is higher (see 
Determination, below) than we characterized in the proposal to list the 
candy darter as a threatened species (82 FR 46197; October 4, 2017).
    Additionally, we received information during the public comment 
period that demonstrated that there is greater genetic differentiation 
between candy darter in the Greenbrier watershed and candy darter in 
the Gauley watershed (see Summary of Comments and Recommendations, 
below). We incorporated this information into an updated version of the 
SSA report (Service 2018).
    We reassessed our analysis (after reviewing all public comments), 
updated the SSA report, and, after evaluating the best available 
information and the Act's regulation and policies, determined that the 
candy darter meets the definition of an endangered species, and such 
designation is more appropriate than that of a threatened species as 
originally proposed.

Summary of Comments and Recommendations

    In the proposed rule published on October 4, 2017 (82 FR 46197), we 
requested that all interested parties submit written comments on the 
proposal by December 4, 2017. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. A 
newspaper notification inviting general public comment was published in 
the USA Today on October 10, 2017. We did not receive any requests for 
a public hearing. All substantive information provided during the 
comment period has either been incorporated directly into this final 
determination or is addressed below, as appropriate.

Peer Reviewer Comments

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we sought the expert opinions of six individuals 
(and received responses from four) with expertise in darters; 
fisheries, population, or landscape ecology; genetics and conservation 
genetics; and/or speciation and conservation biology regarding the SSA 
report (Service 2018). The purpose of peer review is to ensure that our 
designation is based on scientifically sound data, assumptions, and 
analyses. The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final SSA report. The SSA report and peer 
reviews can be found on http://www.regulations.gov under Docket No. 
FWS-R5-ES-2017-0056. The SSA report informed the proposed rule (82 FR 
46197; October 4, 2017) and this final rule.

Comments From States

    (1) Comment: The West Virginia Division of Natural Resources 
(WVDNR) and one public commenter stated that given the fact that 
variegate darter alleles were detected in the Upper Gauley in 2014 the 
spread of hybrids in the Upper Gauley drainage appears imminent and may 
already be widespread based on the rapid spread of hybrids in the 
Greenbrier drainage.
    Our Response: After reviewing how we assessed the hybridization 
metric, one of eight metrics in our candy darter condition model, we 
concluded that we had previously underestimated the risk of 
hybridization in the Upper Gauley. Therefore, we have updated the 
analysis in the SSA report to address this concern. This information 
was the primary reason we changed our determination from threatened to 
endangered.
    (2) Comment: The WVDNR stated that the Gauley and Greenbrier river 
populations of candy darter have a high level of genetic 
differentiation that borders on species-level differentiation. The 
Greenbrier River population appears to be on a definite ``trajectory to 
extinction.'' Loss of candy darter in the Greenbrier river would 
drastically reduce genetic diversity of the species and leave the 
Gauley River and Virginia populations separated by substantial 
geographic distance and two physical barriers (i.e., Summersville and 
Bluestone dams).
    Our Response: The best available genetic information suggests 
genetic differences exist between these watersheds. We have updated the 
SSA report to reflect the importance of these genetic differences.

Public Comments

    (3) Comment: One commenter provided additional supporting evidence 
of the genetic differentiation between the Greenbrier and Gauley 
metapopulations.
    Our Response: We incorporated the information into our SSA report.
    (4) Comment: One commenter believed that the candy darter has been 
extirpated from 77.2 its range rather than 49 percent, as we stated in 
the proposed rule. They also stated that the situation is likely worse 
than that

[[Page 58751]]

because three of the four populations in the Upper Gauley that are 
labeled as ``extant candy darter populations'' have not been 
genetically analyzed; if they were genetically analyzed, they may fall 
into the category of ``extant candy darter population with variegate 
darter alleles.''
    Our Response: This final determination relies on the best 
scientific information available. At this time, we do not have genetic 
information (or evidence otherwise) to fully evaluate the genetics of 
the populations in the Gauley; therefore, we do not assume they are 
candy darter with variegate darter alleles. We we recognize uncertainty 
in the data and that the situation may be worse than we are aware.
    (5) Comment: Three commenters recommended exemptions for activities 
for the Service to consider in the event that we drafted a species-
specific rule under section 4(d) of the Act (``4(d) rule'').
    Our Response: The Service has determined that the candy darter 
meets the definition of an endangered species, and the Act does not 
allow for the promulgation of a 4(d) rule when a species is listed as 
endangered.

Determination

    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.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the candy darter. Our analysis of this information indicates that, 
at the species level, hybridization with variegate darters (Factor E) 
is the most influential factor affecting the candy darter now and into 
the future. Excessive sedimentation and increased water temperatures 
degraded once-suitable habitat (Factor A) and likely caused historical 
declines of the candy darter. We also analyzed existing regulatory 
mechanisms (such as the Federal Clean Water Act of 1977 (33 U.S.C. 1251 
et seq.), Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 
1234-1328), West Virginia Water Pollution Control Act (WVSC Sec.  22-
11) and the increased implementation of forestry and construction 
``best management practices'' designed to reduce erosion and 
sedimentation) (Factor D) to reduce or eliminate sedimentation and 
found that these mechanisms were not sufficient to protect the species 
from extinction as excessive sedimentation and increased water 
temperatures continue to affect some of the remaining populations. 
There may be additional infrastructure projects (e.g., roads, pipeline, 
etc.) that increase sediment loading within the range of the candy 
darter as a result of stream crossings or forest clearing for permanent 
rights of way. Additionally, the current level of habitat fragmentation 
(Factor A) isolates some populations, which reduces gene flow and 
limits the potential for the species to colonize or recolonize streams 
if habitat conditions change. Other factors such as flow alterations 
and water quality degradation that affect habitat (Factor A), and the 
stocking of nonnative species that can eat (Factor C) or outcompete 
(Factor E) the candy darter are not expected to cause species-level 
effects. In addition, we have no evidence that overutilization (Factor 
B) or disease (Factor C) is affecting individuals or populations of 
candy darters.
    Active hybridization with variegate darters has occurred or is 
currently occurring in multiple streams within the Lower New, Lower 
Gauley, and Greenbrier River watersheds in West Virginia (Service 2018, 
p. 37). Although variegate darter individuals have not yet been 
detected in the remainder of the candy darter's range (i.e., the Middle 
New and Upper New watersheds in Virginia), variegate darter alleles 
have been detected in two separate locations in the Upper Gauley 
watershed, indicating that hybridization occurred at one time and 
currently likely underway. Additionally, the risk is moderately high 
that variegate darter introductions will continue to occur in these 
watersheds because if watersheds occupied by variegate darters (and 
hybrids) are adjacent to candy darter watersheds, the likelihood that 
variegate darters will be collected as bait and transported into an 
adjacent candy darter watershed is increased. When this happens, 
variegate darters ultimately replace most candy darter populations 
throughout the candy darter's range. The Act defines an endangered 
species as any species that is ``in danger of extinction throughout all 
or a significant portion of its range.'' We find that an endangered 
species status is appropriate for the candy darter because the species 
is facing a catastrophic threat from which the risk of extinction is 
imminent and certain. The introduction of variegate darters is 
occurring, and the consequence that it will extirpate any local candy 
darter population that variegate darters come into sustained contact 
with is imminent and certain across the species' remaining range. As a 
result of their limited range and/or population size, narrowly endemic 
species are inherently vulnerable to extinction when subject to 
elevated threats. The candy darter has a moderately small range, which 
has only become more restricted, as 77 percent (27 of 35 populations 
(see SSA report, table 4)) of its range has been lost through 
historical land use changes and/or has been invaded by the variegate 
darter. Therefore, we conclude that the current risk of extinction of 
the candy darter is such that it does not meet the definition of a 
threatened species under the Act.
    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 candy darter is 
presently in danger of extinction throughout its entire range based on 
the severity and immediacy of threats currently affecting the species. 
The overall range has been significantly reduced, and the remaining 
populations are threatened by hybridization and, to a lesser extent, a 
combination of other threats, reducing the overall viability of the 
species. The risk of extinction is high because the remaining 
populations are isolated and the threat of hybridization is ongoing and 
increasing. Therefore, on the basis of the best available scientific 
and commercial data, we are listing the candy darter as endangered in 
accordance with sections 3(6) and 4(a)(1) of the Act. We find that a 
threatened species status is not appropriate for the candy darter 
because of the reasons previously outlined and because the threats, 
which occur throughout the species' range, are expected to continue to 
increase, putting the species at risk of extinction now.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that the 
candy darter is in danger of extinction throughout its range, we find 
it unnecessary to proceed to an

[[Page 58752]]

evaluation of potentially significant portions of the range. Where the 
best available information allows the Services to determine a status 
for the species rangewide, that determination should be given 
conclusive weight because a rangewide determination of status more 
accurately reflects the species' degree of imperilment and better 
promotes the purposes of the statute. Under this reading, we should 
first consider whether listing is appropriate based on a rangewide 
analysis and proceed to conduct a ``significant portion of its range'' 
analysis if, and only if, a species does not qualify for listing as 
either endangered or threatened according to the ``all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, state, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all 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 requires 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. As part of our conservation strategy for the 
candy darter, which will inform the forthcoming recovery outline and 
informs the proposed critical habitat rule published elsewhere in 
today's Federal Register, we identified the need to reestablish candy 
darter populations within areas of its historical range. Because the 
candy darter is extirpated from some areas and natural repopulation is 
not possible without human assistance, use of a 10(j) rule under the 
Act may be one appropriate tool to achieve this recovery objective. An 
overview of the process to establish an experimental population under 
section 10(j) of the Act is described in detail in the proposed 
critical habitat rule published elsewhere in today's Federal Register. 
In addition to using the authorities under 10(j) of the Act in areas 
not currently occupied by the candy darter, the condition of existing 
candy darter populations may be improved by working with non-Federal 
landowners through safe harbor agreements, authorized under section 
10(a)(1)(A) of the Act. More information about safe harbor agreements 
can be found online at: https://www.fws.gov/endangered/landowners/safe-harbor-agreements.html. We intend to fully explore all of the 
appropriate recovery tools for the candy darter with our State, 
Federal, non-governmental, and private partners.
    The recovery plan identifies site-specific management actions that 
set a trigger for review of whether a species remains endangered or may 
be reclassified from endangered to threatened (``downlisted'') or 
removed from the Lists of Endangered and Threatened Wildlife and Plants 
(``delisted''), and methods for monitoring recovery progress. Recovery 
plans also establish a framework for agencies to coordinate their 
recovery efforts and provide estimates of the cost of implementing 
recovery tasks. Recovery teams (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 website (http://www.fws.gov/endangered) or from the 
person listed under 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. Achieving recovery of these species requires cooperative 
conservation efforts on private, state, and Tribal lands.
    Following publication of this final listing 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 States of Virginia 
and West Virginia will be eligible for Federal funds to implement 
management actions that promote the recovery of the candy 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 candy 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 any endangered or threatened 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, but are 
not limited to, management (e.g., captive propagation) and any other 
landscape-altering activities on Federal lands administered by the U.S. 
Forest Service (Monongahela and the George Washington and Jefferson 
National

[[Page 58753]]

Forests) and the National Park Service; issuance of section 404 Clean 
Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; and construction and maintenance of roads or highways by the 
Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any listed species. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to employees of the 
Service, the National Marine Fisheries Service, other Federal land 
management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, 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. 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; this list is not comprehensive:
     Normal agricultural practices, including herbicide and 
pesticide use, carried out in accordance with any existing regulations 
and with permit and label requirements.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 the Act; this list 
is not comprehensive:
    (1) Introduction of variegate darters into suitable candy darter 
habitat;
    (2) Stocking of nonnative species into suitable candy darter 
habitat;
    (3) Destruction or alteration of the habitat of the candy 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 candy darter; and
    (4) Discharges or dumping of toxic chemicals or other pollutants 
into waters supporting the candy darter that kills or injures 
individuals, or otherwise impairs essential life-sustaining behaviors 
such as breeding, feeding, or finding shelter.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed, as follows:
     In West Virginia, to the West Virginia Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT); or
     In Virginia, to the Southwestern Virginia Field Office 
(330 Cummings Street, Abingdon, VA 24210-3208; telephone 276-623-1233).

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 (NEPA; 42 U.S.C. 4321 et seq.), 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).

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. The candy darter does not occur on 
federally recognized Tribal or Tribal interest lands.

References Cited

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

Authors

    The primary authors of this final rule are the staff members of the 
Services' Species Assessment Team, the West Virginia Ecological 
Services Field Office, and the Southwestern Virginia 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 follows:

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, in alphabetical order under FISHES, 
an entry for ``Darter, candy'' to the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 58754]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Fishes
 
                                                  * * * * * * *
Darter, candy...................  Etheostoma osburni  Wherever found....  E              83 FR [insert Federal
                                                                                          Register page where
                                                                                          the document begins],
                                                                                          11/21/2018.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: September 6, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-25316 Filed 11-20-18; 8:45 am]
BILLING CODE 4333-15-P