[Federal Register Volume 86, Number 65 (Wednesday, April 7, 2021)]
[Rules and Regulations]
[Pages 17956-17992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06748]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2018-0050; FF09E21000 FXES11110900000 212]
RIN 1018-BD15


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for 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), designate 
critical habitat for the candy darter (Etheostoma osburni) under the 
Endangered Species Act (Act). In total, approximately 593 stream 
kilometers (368 stream miles) in Virginia and West Virginia fall within 
the boundaries of the critical habitat designation. The effect of this 
final rule is to designate critical habitat under the Act for the candy 
darter, an endangered species of fish.

DATES: This rule becomes effective on May 7, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R5-ES-2018-0050 or at https://www.fws.gov/northeast/candydarter and at the West Virginia Ecological 
Services Field Office. Comments and materials we received, as well as 
some supporting documentation we used in preparing this rule, are 
available for public inspection in the docket at http://www.regulations.gov. All of the comments, materials, and documentation 
that we considered in this rulemaking are available by appointment, 
during normal business hours at: U.S. Fish and Wildlife Service, West 
Virginia Ecological Services Field Office, 90 Vance Drive, Elkins, WV, 
26241; telephone 304-636-6586.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R5-ES-2018-0050, and at the West Virginia Ecological 
Services Field Office, https://www.fws.gov/westvirginiafieldoffice/index.html (see FOR FURTHER INFORMATION CONTACT). Any additional tools 
or supporting information that we developed for this critical habitat 
designation will also be available at the U.S. Fish and Wildlife 
Service website and field office set out above, and may also be 
included in the preamble and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Acting Field Supervisor, U.S. Fish and 
Wildlife Service, West Virginia Ecological Services Field Office, 90 
Vance Drive, Elkins, WV 26241; telephone 304-636-6586. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This document is a final rule to 
designate critical habitat for the candy darter. Under the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), any 
species that is determined to be an endangered or threatened species 
requires critical habitat to be designated, to the maximum extent 
prudent and determinable. Designations and revisions of critical 
habitat can be completed only by issuing a rule.
    We listed the candy darter as an endangered species on November 21, 
2018 (83 FR 58747). Also, on November 21, 2018, we published in the 
Federal Register a proposed critical habitat designation for candy 
darter (83 FR 59232). Section 4(b)(2) of the Act states that the 
Secretary shall designate critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat.
    What this document does. This document is a final rule that 
designates critical habitat necessary for the conservation of the candy 
darter. The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for candy darter. We are designating a 
total of approximately 593 stream kilometers (368 stream miles) of 
rivers and streams in Virginia and West Virginia for the candy darter.
    Peer review and public comment. Our designation is based on the 
best scientific data available in our peer-reviewed species status 
assessment (SSA) report. The SSA was used to inform the decisionmaking 
process of the proposed and final listing rules (82 FR 46197 and 83 FR 
58747, respectively) and proposed and final critical habitat 
designations (83 FR 59232 and this rule, respectively). For further 
detail on the responses from peer reviewers, see the final rule listing 
the candy darter as an endangered species (83 FR 58747). We also 
considered all comments and information received from the public during 
the comment period for the proposed designation of critical habitat. 
Information we received from public comment is incorporated in this 
final designation of critical habitat, as appropriate, or addressed 
below in Summary of Comments and Recommendations.

Previous Federal Actions

    We proposed the candy darter for listing on October 4, 2017 (82 FR 
46197), and finalized the listing on November 21, 2018 (83 FR 58747). 
As such, the candy darter is included as an endangered species on the 
List of Endangered and Threatened Wildlife in title 50 of the Code of 
Federal Regulations at 50 CFR 17.11(h). We also proposed to designate 
critical habitat for the candy darter on November 21, 2018 (83 FR 
59232). For information on any actions prior to these rules, refer to 
the proposed listing rule.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the candy darter (83 FR 59232) 
during an open comment period that opened on November 21, 2018, and 
closed on January 22, 2019. We did not receive any requests for a 
public hearing. We also contacted appropriate Federal, State, and local 
agencies; scientific organizations; and other interested parties and 
invited them to comment on the proposed rule and draft economic 
analysis during these comment periods.
    During the comment period, we received 14 comment letters directly 
addressing the proposed critical habitat designation. All substantive 
information provided during the comment period has been grouped into 
general issues specifically relating to the proposed critical habitat 
designation for the candy darter and either incorporated directly into 
this final determination, as appropriate, or addressed below in the 
following summary.
    In addition, some of the 14 substantive comments directly related 
to the critical habitat designation also contained suggestions that 
were applicable to general recovery issues for

[[Page 17957]]

the candy darter, but not directly related to the critical habitat 
designation (i.e., meaning these comments are outside the scope of the 
critical habitat rule). These general comments included topics such as 
the use of reintroductions or translocations, specific areas for high-
quality reintroduction sites, riparian vegetation management to address 
the effects of climate change on water temperature in candy darter 
streams, and baitfish regulations. While these comments may not be 
directly incorporated into the critical habitat rule, we have noted the 
suggestions and look forward to working with our partners on these 
topics during recovery planning for the candy darter.

Comments From Federal Agencies

    (1) Comment: The U.S. Forest Service (USFS), the West Virginia 
Department of Natural Resources (DNR), and several public commenters 
suggested that reintroductions or translocations or both would be 
important conservation strategies for the candy darter. Some commenters 
suggested specific areas that would represent high-quality 
reintroduction sites.
    Our response: During recovery planning and implementation for the 
candy darter, we will work collaboratively with our partners and all 
stakeholders to recover the species. Translocation into historically 
occupied habitats is consistent with the recovery strategy laid out in 
the Candy Darter Recovery Outline (Service 2019, entire). We appreciate 
the support of our partners in this regard and will continue to work 
with them to determine appropriate locations to implement this 
strategy, monitor the success of these efforts, and manage these 
populations as needed.
    (2) Comment: The USFS urged us to consider that designating 
critical habitat might mandate conservation measures beneficial to the 
candy darter but perhaps be detrimental to the overall aquatic 
ecosystem (e.g., maintaining or adding barriers to fish passage).
    Our response: Barriers to fish passage may reduce the spread of 
variegate darters (Etheostoma variatum), the primary threat to candy 
darters, within candy darter habitats. However, the designation of 
critical habitat will not result in the mandate to install any passage 
barriers. Any proposals to install or remove fish passage barriers 
would be evaluated on a case-by-case basis for their potential effects 
to the candy darter and its critical habitat, as well as for the 
overall conservation benefits and effects to other ecosystem functions.
    (3) Comment: The USFS asked us to clarify and recognize that the 
areas of ongoing hybridization between variegate darters and candy 
darters may change.
    Our response: Occupied habitat for the candy darter are those areas 
where individual fish with pure candy darter alleles were found based 
on the most recent survey results. We recognize that the zone of 
hybridization may change over time and that pure candy darters may 
become extirpated from some portions of currently occupied habitat in 
the future. However, maintaining existing populations is important to 
the survival and recovery of the species. Therefore, designation of 
occupied habitat as it occurs at the time of listing is appropriate. 
Critical habitat can be revised in the future if substantial new 
information becomes available that would suggest certain areas should 
be added or removed.
    (4) Comment: The USFS asked to us to acknowledge the importance of 
Forest Service Watershed Restoration Action Plans (and other 
conservation actions ongoing in national forests) within the range of 
the candy darter and expressed interest in discussing potential effects 
of critical habitat designations on land management activities.
    Our response: We acknowledge the significant conservation 
contributions that the USFS has made to protecting and enhancing candy 
darter habitat and its surrounding watershed. We also recognize that 
there are section 7 consultation requirements as a result of the 
listing of the candy darter and the designation of critical habitat. We 
will continue to work collaboratively with the USFS to address these 
workload concerns and to determine what additional avoidance, 
minimization, and conservation measures are appropriate for the 
species.
    (5) Comment: The USFS suggested that we consider whether or not the 
designation of critical habitat may increase the risk of malicious 
introductions of nonnative fish into candy darter streams.
    Our response: We are not aware of any efforts to maliciously 
introduce nonnative fish in candy darter waters. The designation of 
critical habitat may increase public awareness of the importance of 
these watersheds and encourage the development of education and 
outreach about baitfish regulations. We are working with the West 
Virginia DNR to revise regulations to reduce the potential for baitfish 
introductions with the aim of increasing awareness and enforcement on 
this issue.
    (6) Comment: The USFS and one public commenter raised concerns that 
climate change may cause widespread changes in vegetation in the 
riparian areas that would result in higher temperatures or increased 
flooding, which increases sedimentation in candy darter streams.
    Our response: We acknowledge the importance of intact riparian 
areas to maintaining candy darter habitat and will work with partners 
to maintain and restore appropriate riparian areas to provide the 
proper thermal properties and bank stability in candy darter habitat.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from agencies within the State of West Virginia (the 
State) regarding the proposal to designate critical habitat for the 
candy darter are addressed below.
    (7) Comment: The proposed critical habitat rule also sought 
comments on the Service's intent to explore other recovery tools that 
may require additional regulations (e.g., designating experimental 
populations under section 10(j) of the Act) or permits (i.e., Safe 
Harbor Agreements under section 10 of the Act). The West Virginia DNR 
expressed concern with using our authorities under section 10(j) of the 
Act for recovery of the candy darter. The State concluded that 
establishing experimental populations (or designating additional areas 
of critical habitat, other than those proposed) is not in the best 
interest of the species. Conversely, one public commenter suggested 
that we should use our authorities under section 10(j) of the Act to 
establish experimental candy darter populations to promote State and 
private landowner collaboration in conserving the species.
    Our response: As discussed above, during the recovery planning 
process for the candy darter, we will work collaboratively with our 
partners and stakeholders to ensure the best conservation outcome for 
the species. Translocation into historical habitats is consistent with 
the species' recovery strategy.
    Upon further consideration, we conclude that designating 
experimental populations (under section 10(j) of the Act) is not 
appropriate at this time, and we are not designating any areas as 
critical habitat beyond those that were proposed. In the future, if we 
determine, in consultation with partners and stakeholders, that the 
reintroduction of the species to certain historically occupied streams 
would benefit from

[[Page 17958]]

the regulatory flexibility offered by section 10(j) of the Act, we will 
publish a proposed rule for public comment. See Summary of Changes from 
Proposed Rule, below, for additional information.
    (8) Comment: The West Virginia Department of Environmental 
Protection (DEP) and a public commenter expressed concerns with 
designating critical habitat. Commenters indicated that we should not 
designate critical habitat because: (1) Hybridization (and not loss of 
habitat) is the primary stressor affecting the candy darter; (2) 
habitat protections would not reduce the likelihood of extinction; and 
(3) habitat protections may disproportionately benefit the variegate 
darter.
    Our response: The designation of critical habitat is not a 
discretionary action. According to section 4(a)(3)(A) of the Act, the 
Secretary of the Interior shall, to the maximum extent prudent and 
determinable, concurrently with making a determination that a species 
is an endangered species or a threatened species, designate critical 
habitat for that species. We have determined that critical habitat is 
both prudent and determinable for the candy darter (83 FR 59232, 
November 21, 2018). Therefore, as required by the Act and after 
consideration of substantive comments on the proposed rule, we are 
designating, as critical habitat, those areas occupied by the species 
at the time of listing on which are found the physical or biological 
features essential for the conservation of the species and which may 
require special management considerations or protection.
    As we discussed in the SSA report (Service 2018, entire) and the 
proposed rule (83 FR 59232, November 21, 2018), there are multiple 
stressors in addition to the introduction of the variegate darter that 
are affecting the candy darter. Management of these other stressors 
will be important to the conservation of the species. In addition, 
while eliminating variegate darters from candy darter watersheds is an 
important goal for the conservation of the species, we are not aware of 
feasible methods for achieving this goal. We look forward to working 
with our conservation partners to research potential methods for 
reducing the threat of variegate darter hybridization. Though the candy 
darter and variegate darter share many of the same habitat 
requirements, such as unembedded gravel substrate, we have no evidence 
to suggest that the maintenance of high-quality habitat for the candy 
darter disproportionately benefits the variegate darter. On the 
contrary, it is conceivable that variegate darters are more tolerant of 
marginal habitat conditions and that high-quality streams within the 
candy darter's historical range might provide the candy darter a 
competitive advantage over the introduced variegate darter.
    (9) Comment: The West Virginia DNR noted that candy darters may 
also be present in several perennial tributaries outside of the streams 
proposed for designation as critical habitat, but that these 
tributaries have not been surveyed. The State did not recommend 
including these tributaries as critical habitat at this time, but did 
recommend that these streams should be considered when reviewing 
projects that may affect the species.
    Our response: We acknowledge that the candy darter may be present 
in additional streams or tributaries that have not been surveyed, and 
will work with the West Virginia DNR and Virginia Department of Game 
and Inland Fisheries to develop a list of these streams so that they 
can be considered during project reviews. The candy darter will be 
protected as an endangered species wherever it is found under the 
prohibitions described in section 9 of the Act.
    (10) Comment: The West Virginia DEP pointed out that the rule does 
not define the ratio or density of nonnative species that would be 
consistent with the conservation of the candy darter.
    Our response: As discussed in the candy darter SSA report, the 
scientific evidence is clear that nonnative species can have a 
detrimental effect on native species such as the candy darter. However, 
the data are not currently available to explicitly define a ratio or 
density of nonnatives that is protective of the candy darter. Research 
into establishing such conservation metrics and recovery goals for the 
candy darter will be addressed during the recovery planning and 
implementation process.
    (11) Comment: The West Virginia DNR informed us that they have 
taken steps to formulate regulations designed to curtail, mitigate, or 
both, the practice of moving baitfish in regions that still contain 
candy darter populations and in areas in which they hope to reestablish 
candy darter populations.
    Our response: Limiting the movement of baitfish is a key component 
to reduce the threat of additional variegate darter introductions, and 
we applaud the State's efforts in this regard.
    (12) Comment: The West Virginia DNR suggested that we may have 
underestimated the threat of acid precipitation in the Upper Gauley.
    Our response: Stream acidification in some candy darter watersheds 
is a serious concern and we appreciate the efforts of the State and 
other partners in addressing this threat. We will address this topic in 
future recovery planning.

Public Comments

    (13) Comment: Two public commenters expressed concerns regarding 
the effect of a critical habitat designation on the coal mining 
industry. There was a particular emphasis of concern around a statement 
in the incremental effects memorandum (IEM) prepared by us for the 
economic analysis of the critical habitat designation (IEM 2018). The 
statement reads: ``Specific recommendations for coal mining in candy 
darter watersheds (augmenting the general management recommendations) 
will include not using valley fills. Strategic placement and frequent 
maintenance of all construction and operational features (e.g., roads, 
slurry ponds, and other features that lead to sedimentation) will also 
be recommended.'' The commenters stated that this provision would 
result in a ban on coal mining.
    Our response: It is important to note the context of this statement 
within the IEM, as it describes ``protections or efforts relevant to 
the known threats to the species that would provide some level of 
conservation for the candy darter absent the proposed critical habitat 
designation.'' The suggestion of avoiding valley fills as a 
conservation measure for candy darters specifically refers to potential 
actions that are not a result of critical habitat designation. 
Therefore, the IEM does not include the effects of these actions in its 
analysis, as they would occur regardless of the presence or absence of 
designated critical habitat.
    We do not propose (nor do we have the authority) to ban coal 
mining. Federal agencies are required to consult with the Service to 
ensure that any action they carry out, fund, or authorize will not 
jeopardize the species or destroy or adversely modify designated 
critical habitat. The requirement to ensure any action does not 
jeopardize the species applies whether or not the action area is 
designated as critical habitat. Avoiding the use of valley fills in 
coal mining in candy darter watersheds, as referenced by the IEM, is an 
example of a conservation measure the Service might recommend during 
section 7 consultation, whether or not the area is designated as 
critical habitat.
    The Service's 1996 Biological Opinion (BO) issued to the Office of 
Surface Mining and Reclamation and Enforcement (OSMRE) addresses coal 
mining practices regulated under the Surface Mining Control and 
Reclamation Act. The terms and conditions of that BO require the

[[Page 17959]]

Service to work with the appropriate State regulatory authority to 
develop species-specific protective measures (SSPMs) to avoid and 
minimize the impacts to listed species. Implementation of SSPMs and 
development of the required protection and enhancement plan do not make 
any single conservation measure mandatory (e.g., banning the use of 
valley fills). Rather, during the consultation process for each 
project, the Service works with OSMRE and the State regulatory agency 
to develop specific conservation measures to satisfy the requirement of 
the BO to avoid and minimize impacts to the candy darter while allowing 
coal mining to proceed.
    (14) Comment: Two public commenters provided comments describing 
the beneficial impacts of forestry best management practices (BMPs) on 
water quality and encouraged us to use ``consistent language, that is 
supported by science when discussing the value of forestry BMPs.''
    Our response: We have always relied upon the use of the best 
scientific and commercial data available in decisionmaking processes, 
and we will continue to do so with regard to discussions of BMPs. The 
implementation of BMPs for forestry can reduce sedimentation when 
consistently and diligently applied, and that these BMPs are important 
for preserving the integrity of aquatic habitats and the species that 
occupy them. However, the assertion that current mechanisms are 
protective of the species does not relieve the Service of its statutory 
obligation to designate critical habitat. In Ctr. for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court 
held that the Act does not direct us to designate critical habitat only 
in those areas where ``additional'' special management considerations 
or protection is needed. If any area provides the physical or 
biological features essential to the conservation of the species, even 
if that area is already well managed or protected, that area still 
qualifies as critical habitat under the statutory definition if special 
management is needed.
    (15) Comment: Two public commenters encouraged us to work with the 
State and private landowners to establish forestry BMPs on property 
that is adjacent to the critical habitat designation.
    Our response: We recognize and appreciate the importance of working 
with landowners and project proponents to protect candy darter 
habitats, and to avoid, minimize, and mitigate any adverse effects that 
may occur. We will continue to use our existing authorities to address 
these issues as appropriate.
    (16) Comment: Two public commenters noted that candy darters occupy 
habitats in watersheds with active coal mining. They stated that this 
situation suggests that candy darters can ``thrive'' in these areas.
    Our response: While candy darter populations may persist in some 
watersheds where mining or other land disturbances are or have been 
present, the extent to which these populations are stable and/or 
thriving remains to be determined. The proposed critical habitat rule 
does not specify that any particular land use is incompatible with the 
persistence of candy darter populations. As mentioned in previous 
responses to comments raising concerns about the impacts to the coal 
mining industry, we plan to work cooperatively with the relevant State 
and Federal regulatory agencies to develop conservation measures 
allowing the continuation of coal mining in a manner that avoids and 
minimizes impacts to the candy darter and its habitat.
    (17) Comment: One public commenter requested that we reinitiate 
section 7 consultation and issue a biological opinion for two natural 
gas Executive Order 13211 construction projects.
    Our response: We are aware of these two pipeline projects and are 
in discussions with the Federal Energy Regulatory Commission regarding 
section 7 consultation needs for the candy darter.
    (18) Comment: One public commenter asked us to clarify the terms 
``stream mile'' and ``protection of riparian buffers'' and to confirm 
that private forest lands are not included in the critical habitat 
designation. Similarly, another commenter suggested that we should 
exclude State and private forest lands from a final critical habitat 
designation.
    Our response: We determined the ``stream mile'' to be the estimated 
length of the occupied stream segment by tracing the approximate 
centerline of the stream channel from the appropriate upstream defining 
characteristic to the appropriate downstream defining characteristic 
using the USA Topo Environmental Systems Research Institute (ESRI) 
basemap and/or U.S. Geological Survey topographic map. See the 
``Criteria Used to Identify Critical Habitat'' section in the proposed 
critical habitat rule (83 FR 59232, November 21, 2018) for further 
details. Within these stream segments, critical habitat consists of the 
stream channel up to the ordinary high water line. As defined at 33 CFR 
329.11, the ``ordinary high water mark'' on nontidal rivers is the line 
on the shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of the soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas.
    Therefore, adjacent upland or terrestrial areas that are not below 
the ordinary high water line are not included in designated critical 
habitat. However, we would anticipate conducting section 7 
consultations with Federal agencies for projects on Federal lands or 
for projects with a Federal nexus if a project had indirect impacts to 
the candy darter's critical habitat or on the species itself. In 
general, activities in riparian areas should be conducted in such a 
manner as to protect adjacent streams from excessive sedimentation, 
high water temperatures, and other water quality perturbations that 
would be detrimental to the candy darter. Where a landowner requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) of the Act apply, but even in the event of a 
destruction or adverse modification finding, the obligation of the 
Federal action agency and the landowner is not to restore or recover 
the species, but to implement reasonable and prudent alternatives to 
avoid destruction or adverse modification of critical habitat.

Summary of Changes From Proposed Rule

    Changes from the proposed to the final critical habitat designation 
were minor in nature. Based on substantive comments received during the 
public comment period that provided new candy darter survey data and 
habitat observations, we corrected some stream termini (and resultant 
segment lengths). Additionally, one stream with candy darter occurrence 
data was inadvertently omitted from the proposed rule; this segment is 
now included as critical habitat. The changes listed below resulted in 
a net reduction of approximately 2.8 stream kilometers (1.7 stream 
miles) of critical habitat from what was originally proposed. All 
changes are reflected on the maps, which outline the areas designated 
as critical habitat and are located at the end of this document.

[[Page 17960]]



    Table 1--Changes to Critical Habitat Units Based on Information Received During the Public Comment Period
----------------------------------------------------------------------------------------------------------------
                                                                                            Net change
                                                                                 -------------------------------
                              Unit                                    Subunit         Stream
                                                                                    kilometers     Stream miles
----------------------------------------------------------------------------------------------------------------
1--Greenbrier...................................................              1a            -5.0            -3.1
1--Greenbrier...................................................              1b            +3.9            +2.4
2--Middle New...................................................              2b            -3.1            -1.9
2--Middle New...................................................              2c            +1.4            +0.9
                                                                 -----------------------------------------------
    Total.......................................................  ..............            -2.8            -1.7
----------------------------------------------------------------------------------------------------------------

    As mentioned above in Summary of Comments and Recommendations, the 
Service has reconsidered its intent to establish nonessential 
experimental populations using our authority under section 10(j) of the 
Act at this time. Based on comments from a State partner, we conclude 
that allowing the States to reestablish and translocate the candy 
darter into historically occupied areas using their own authorities 
will be a more effective recovery strategy for the candy darter. 
However, if we receive further substantive information at a later date 
and determine that the use of a section 10(j) rule will aid in the 
recovery of the candy darter, we will publish a proposed rule for 
public comment. Reestablishing candy darter populations into 
historically occupied areas continues to be an important part of our 
recovery strategy for the candy darter. We will coordinate with our 
partners to implement the most effective recovery strategy. In both the 
State of Virginia and the State of West Virginia, the water and the 
streambed fall under the authority of the State. As a result, the State 
resource agencies hold the State regulatory authority over the waters 
(Virginia Code Sec.  62.1, West Virginia Code Sec.  22-26).

Critical Habitat

Background

    Please refer to our November 21, 2018, proposed critical habitat 
rule (83 FR 59232) for a summary of species information available to 
the Service at the time that the proposed rule was published. Based on 
information we received during the proposed rule's public comment 
period, we updated several critical habitat stream termini to more 
accurately capture areas that meet the definition of critical habitat 
and remove areas that do not. We also added one inadvertently omitted 
occupied stream as critical habitat in the Greenbrier River watershed. 
The result of these changes in this final rule is a net reduction of 
approximately 1.7 stream miles (2.8 stream kilometers) (outlined 
above). These changes are incorporated into the critical habitat maps 
at the end of this rule.
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as, ``An area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).''
    Conservation, as defined under section 3 of the Act, means ``to use 
and the use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to [the Act] are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.''
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features: (1) Which are essential to the 
conservation of the species, and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including but not limited to,

[[Page 17961]]

water characteristics, soil type, geological features, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside of the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species, the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the Act's section 9 prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to the recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.
    On August 27, 2019, we published a final rule in the Federal 
Register (84 FR 45020) to amend our regulations concerning the 
procedures and criteria we use to designate and revise critical 
habitat. That rule became effective on September 26, 2019, but, as 
stated in that rule, the amendments it sets forth apply to ``rules for 
which a proposed rule was published after September 26, 2019.'' We 
published our proposed critical habitat designation for the candy 
darter on November 21, 2018 (83 FR 59232); therefore, the amendments 
set forth in the August 27, 2019, final rule at 84 FR 45020 do not 
apply to this final designation of critical habitat for the candy 
darter.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. For example, physical 
features might include gravel of a particular size required for 
spawning, alkali soil for seed germination, protective cover for 
migration, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic needed to 
support the life history of the species. In considering whether 
features are essential to the conservation of the species, the Service 
may consider an appropriate quality, quantity, and spatial and temporal 
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These 
characteristics include, but are not limited to, space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, or rearing (or development) 
of offspring; and habitats that are protected from disturbance.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of candy darter from studies of this species' habitat, 
ecology, and life history as described below. Additional information 
can be found in the proposed critical habitat designation and final 
listing rule published in the Federal Register on November 21, 2018 (83 
FR 59232 and 83 FR 58747, respectively), and the recovery outline for 
the candy darter (Service 2019, entire), which can be found at: https://ecos.fws.gov/docs/recovery_plan/2018%20CDRecoveryOutline.pdf. We have 
determined that the following physical or biological features are 
essential to the conservation of the candy darter:
    (1) Ratios or densities of nonnative species that allow for 
maintaining populations of candy darters;

[[Page 17962]]

    (2) A blend of unembedded gravel and cobble that allows for normal 
breeding, feeding, and sheltering behavior;
    (3) Adequate water quality characterized by seasonally moderated 
temperatures and physical and chemical parameters (e.g., pH, dissolved 
oxygen levels, turbidity, etc.) that support normal behavior, growth, 
and viability of all life stages of the candy darter;
    (4) An abundant, diverse benthic macroinvertebrate community (e.g., 
mayfly nymphs, midge larvae, caddisfly larvae) that allows for normal 
feeding behavior; and
    (5) Sufficient water quantity and velocities that support normal 
behavior, growth, and viability of all life stages of the candy darter.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. The overall habitat characteristics that are important for 
the candy darter include sufficiently stabilized forest streambanks 
throughout the watersheds such that water quality allows for normal 
feeding, breeding, and sheltering in an area with sufficiently low 
numbers of nonnative species (Service 2018, pp. 15-17, 22-25, 32-34). 
The features essential to the conservation of the candy darter may 
require special management considerations or protections to reduce the 
following threats: (1) Hybridization with the nonnative variegate 
darter; (2) general increase in water temperature, primarily attributed 
to land use changes; (3) changes in water chemistry, including, but not 
limited to, changes in pH levels or concentrations of certain 
contaminants (such as, but not limited to, coliform bacteria); (4) 
habitat fragmentation primarily due to construction of barriers and 
impoundments; (5) excessive sedimentation and stream bottom 
embeddedness (the degree to which gravel, cobble, rocks, and boulders 
are surrounded by, or covered with, fine sediment particles); and (6) 
competition for habitat and other instream resources and predation from 
nonnative fishes.
    Management activities that could ameliorate these threats include, 
but are not limited to: (1) Use of BMPs designed to reduce 
sedimentation, erosion, and bankside destruction; (2) protection of 
riparian corridors and retention of sufficient canopy cover along 
streambanks; (3) reduction of other watershed disturbances that release 
sediments, pollutants, or nutrients into the water; (4) public outreach 
requesting the public's assistance with stopping the movement of 
nonnative aquatic species; (5) increased enforcement and/or outreach 
regarding existing regulations prohibiting the movement of bait fish; 
(6) survey and monitoring to further characterize the extent and spread 
of hybridization with variegate darters; (7) research to determine 
whether some environmental factors or set of factors might allow candy 
darters to persist in particular areas despite variegate darter 
introductions; (8) research characterizing habitat conditions in 
historically extirpated candy darter sites to facilitate successful 
reintroduction efforts; (9) research and development of tools and 
techniques that can be used to address the competitive behavior that 
allows for variegate darters to dominate candy darters, which leads to 
hybridization; and (10) reintroductions of candy darters to 
historically extirpated areas and/or population augmentation of candy 
darters in sufficient numbers to outcompete variegate darters.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not designating any areas 
outside the geographical area occupied by the species at the time of 
listing, because we did not find any areas that were essential for the 
conservation of the species. We are designating critical habitat in 
areas within the geographical area occupied by the species at the time 
of listing in 2018. Refer to the candy darter proposed critical habitat 
designation for a full description of criteria used to identify 
critical habitat (83 FR 59232, November 21, 2018).
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features that are suitable for the 
candy darter. The scale of the maps that the Service prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the rule and are not 
designated as critical habitat. Therefore, a Federal action involving 
these lands will not trigger section 7 consultation requirements with 
respect to critical habitat and the requirement of no destruction or 
adverse modification unless the specific action would affect the 
physical or biological features in the adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R5-ES-2018-0050, on our internet 
site https://www.fws.gov/northeast/candydarter/, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT, above).

Final Critical Habitat Designation

    We are designating five units as critical habitat for the candy 
darter. The critical habitat areas described below constitute our best 
assessment at this time of areas that meet the definition of critical 
habitat. Those five units are: (1) Greenbrier, (2) Middle New, (3) 
Lower Gauley, (4) Upper New, and (5) Upper Gauley.
BILLING CODE 4333-15-P

[[Page 17963]]

[GRAPHIC] [TIFF OMITTED] TR07AP21.000

BILLING CODE 4333-15-C
    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the candy darter, below. In 
all instances, the units are occupied. The State of Virginia (VA) or 
West Virginia (WV), as applicable, owns the stream water and stream 
bottoms, and the lands described below are those adjacent to the 
designated critical habitat stream areas.

Unit 1: Greenbrier

    The Greenbrier Unit consists of six subunits in Pocahontas County, 
WV. The occupied streams are adjacent to primarily Federal land, with 
some private land and one State-owned parcel. The Greenbrier Unit has 
been surveyed for the candy darter as recently as 2014 (Service 2018, 
p. 48). The unit currently supports all breeding, feeding, and 
sheltering needs for the species. See details below.

Unit 1a: East Fork of the Greenbrier River, Pocahontas County, WV

    Unit 1a consists of approximately 29.7 stream kilometers (skm) 
(18.5 stream miles (smi)) of the East Fork of the Greenbrier River from 
the confluence of an unnamed tributary (located 1.8 skm (1.1 smi) 
upstream of the Bennett Run confluence), downstream to the confluence 
of the East Fork and West Fork of the Greenbrier River at Durbin, WV; 
approximately 6.8 skm (4.2 smi) of the Little River from the U.S. 
Highway 250 crossing, downstream to the confluence of the Little River 
and the East Fork of the Greenbrier River; and approximately 1.9 skm 
(1.2 smi) of Buffalo Fork from the Buffalo Lake dam, downstream to the 
confluence of Buffalo Fork and the Little River. The land adjacent to 
this unit is mostly forested interspersed with small communities, low-
density residences, and agricultural fields along the lower portion of 
the East Fork of the Greenbrier River. Approximately 21.2 skm (13.2 
smi) of Unit 1a is within the Monongahela National Forest with the 
remainder located almost entirely adjacent to private land, except for 
a small amount that is publicly owned in the form of bridge crossings, 
road easements, and the like. Candy darters occur at multiple sites in 
this unit (Service 2018, p. 28). Unit 1a contributes to the redundancy 
of the Greenbrier metapopulation.

Unit 1b: West Fork of the Greenbrier River, Pocahontas County, WV

    Unit 1b consists of approximately 29.9 skm (18.6 smi) of the West 
Fork of the Greenbrier River from the confluence with Snorting Lick 
Run, downstream to the confluence of the East Fork and West Fork of the 
Greenbrier River at Durbin, WV; approximately 13.3 skm (8.3 smi) of the 
Little River from the confluence with Hansford Run, downstream to the 
confluence of the Little River and the West Fork of the Greenbrier 
River; and approximately 4.8 skm (3.0 smi) of Mountain Lick Creek from 
the confluence with an unnamed tributary (located 1.5 skm (0.9 smi) 
downstream of the Upper Mountain Lick Forest Service Road crossing), 
downstream to the confluence of Mountain Lick Creek and the West Fork 
of the Greenbrier River. The land adjacent to this unit is almost 
entirely forested interspersed with a few residences and agricultural 
fields along the lower portion of the West Fork of the Greenbrier River 
near

[[Page 17964]]

the town of Durbin, WV. Approximately 47.1 skm (29.3 smi) of Unit 1b is 
within the Monongahela National Forest with the remainder adjacent to 
almost entirely private land, except for a small amount that is 
publicly owned in the form of bridge crossings, road easements, and the 
like. Surveys found candy darters at multiple sites in this unit 
(Service 2018, p. 28). Unit 1b contributes to the redundancy of the 
Greenbrier metapopulation.

Unit 1c: Upper Greenbrier River, Pocahontas County, WV

    Unit 1c consists of approximately 69.3 skm (43.1 smi) of the 
Greenbrier River from the confluence of the East Fork and West Fork of 
the Greenbrier River at Durbin, WV, downstream to the confluence of 
Knapp Creek at Marlinton, WV. The land adjacent to this unit is mostly 
forested; however, several small communities with residences and light 
commercial development, along with scattered rural residences and 
agricultural fields, occur at various locations. Approximately 47.5 skm 
(29.5 smi) of Unit 1c is within the Monongahela National Forest and the 
Seneca State Forest, with the remainder adjacent to almost entirely 
private land, except for a small amount that is publicly owned in the 
form of bridge crossings, road easements, and the like. Survey data 
indicate candy darters are present in the upper and lower portions of 
this unit (Service 2018, p. 28). While survey data for the intervening 
section are lacking, candy darters may occur where suitable habitat is 
present. Unit 1c contributes to the redundancy of the Greenbrier 
metapopulation and provides connectivity between the other Greenbrier 
watershed populations.

Unit 1d: Deer Creek, Pocahontas County, WV

    Unit 1d consists of approximately 21.2 skm (13.2 smi) of Deer Creek 
from the confluence of Deer Creek and Saulsbury Run, downstream to the 
confluence with the Greenbrier River; and approximately 16.3 skm (10.1 
smi) of North Fork from a point approximately 1.6 km (1.0 mi) upstream 
of the Elleber Run confluence, downstream to the confluence of North 
Fork and Deer Creek. The lower half of the land adjacent to this unit 
is mostly forested, while the upper portion contains low-density 
residences and agricultural fields. Approximately 10.0 skm (6.2 smi) of 
Unit 1d is within the Monongahela National Forest, with the remainder 
adjacent to almost entirely private land, except for a small amount 
that is publicly owned in the form of bridge crossings, road easements, 
and the like. Surveys collected candy darters at two locations in this 
unit (Service 2018, p. 28). Unit 1d contributes to the redundancy of 
the Greenbrier metapopulation.

Unit 1e: Sitlington Creek, Pocahontas County, WV

    Unit 1e consists of approximately 10.1 skm (6.3 smi) of Sitlington 
Creek from the confluence of Galford Run and Thorny Branch, downstream 
to the confluence with the Greenbrier River. Some of the riparian area 
of Unit 1e is forested; however, the majority of the land adjacent to 
this unit is agricultural fields and widely scattered residences. 
Approximately 1.2 skm (0.7 smi) of Unit 1e is within the Monongahela 
National Forest, with the remainder adjacent to almost entirely private 
land, except for a small amount that is publicly owned in the form of 
bridge crossings, road easements, and the like. Candy darters have been 
documented at several locations in this unit (Service 2018, p. 28). 
Unit 1e contributes to the redundancy of the Greenbrier metapopulation.

Unit 1f: Knapp Creek, Pocahontas County, WV

    Unit 1f consists of approximately 43.9 skm (27.3 smi) of Knapp 
Creek from a point approximately 0.16 skm (0.1 smi) west of the WV 
Route 84 and Public Road (PR) 55 intersection, downstream to the 
confluence with the Greenbrier River at Marlinton, WV. The land 
adjacent to this unit is largely forested; however, low-density 
residential and agricultural fields occur in much of the upstream 
portions. The land surrounding the lowest section of Unit 1f is 
dominated by residential and commercial development. Approximately 7.2 
skm (4.5 smi) of Unit 1f is within the Monongahela National Forest, 
with the remainder adjacent to almost entirely private land, except for 
a small amount that is publicly owned in the form of bridge crossings, 
road easements, and the like. Surveys documented candy darters at 
several locations in this unit (Service 2018, p. 28). Unit 1f 
contributes to the redundancy of the Greenbrier metapopulation.

Unit 2: Middle New

    The Middle New Unit comprises three stream subunits in Bland and 
Giles Counties, VA. The occupied streams are adjacent to a mix of 
Federal and private land. Candy darter have been surveyed in the Middle 
New Unit as recently as 2016 (Service 2018, p. 48). The unit currently 
supports all breeding, feeding, and sheltering needs for the species. 
See details below.

Unit 2a: Dismal Creek, Bland and Giles Counties, VA

    Unit 2a consists of approximately 4.2 skm (2.6 smi) of Dismal Creek 
from the confluence with Standrock Branch, downstream to the confluence 
of Dismal Creek and Kimberling Creek. The land adjacent to this unit is 
almost entirely forested, with some scattered residences and small 
agricultural fields. Approximately 3.2 skm (2.0 smi) of Unit 2a is 
within the George Washington and Jefferson National Forest, with the 
remainder adjacent to almost entirely private land, except for a small 
amount that is publicly owned in the form of bridge crossings, road 
easements, and the like. Surveys documented a small candy darter 
population, which contributes to the representation and redundancy of 
the species (Service 2018, p. 28).

Unit 2b: Stony Creek, Giles County, VA

    Unit 2b consists of approximately 31.1 skm (19.3 smi) of Stony 
Creek from the confluence with White Rock Branch, downstream to the 
confluence with the New River. The land adjacent to this unit is almost 
entirely forested, with some scattered residences, a large underground 
lime mine, a processing plant, and a railroad spur line along the 
downstream portion. Approximately 16.1 skm (10.0 smi) of Unit 2b is 
within the George Washington and Jefferson National Forest, with the 
remainder adjacent to almost entirely private land, except for a small 
amount that is publicly owned in the form of bridge crossings, road 
easements, and the like. Surveys documented candy darters at multiple 
locations within this unit. Unit 2b is the most robust population in 
Virginia and contributes to the representation and redundancy of the 
species (Service 2018, p. 28).

Unit 2c: Laurel Creek, Bland County, VA

    Unit 2c consists of approximately 5.1 skm (3.2 smi) of Laurel Creek 
from a point approximately 0.8 skm (0.5 smi) upstream of the unnamed 
pond, downstream to the confluence of Laurel Creek and Wolf Creek and 
approximately 1.4 skm (0.8 smi) of Wolf Creek from the Laurel Creek 
confluence downstream to the stream riffle adjacent to the intersection 
of Wolf Creek Highway and Alder Lane. The unit passes through a 
forested gap in a ridgeline; however, the riparian zone is dominated by 
Interstate Highway 77, U.S. Highway 52, and residential and commercial 
development. Unit 2c is adjacent to almost entirely private land,

[[Page 17965]]

except for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like. Surveys found candy darters at 
several locations within this unit (Service 2018, p. 28). Unit 2c 
contributes to the representation and redundancy of the species.

Unit 3: Lower Gauley, ``Lower'' Gauley River, Nicholas County, WV

    Unit 3 consists of approximately 2.9 skm (1.8 smi) of the Gauley 
River from the base of the Summersville Dam, downstream to the 
confluence of Collison Creek. The land adjacent to this unit is 
entirely forested, with the exception of parking areas and 
infrastructure at the base of the Summersville Dam. The entirety of 
Unit 3 is within the National Park Service's Gauley River National 
Recreation Area and the U.S. Army Corps of Engineer's (Corps') 
Summersville Recreation Area. Candy darters are abundant in the 
tailwaters of the dam. Unit 3 supports the only candy darter population 
remaining in the Lower Gauley watershed and contributes to the 
representation and redundancy of the species. Candy darters were 
documented in surveys of Unit 3 as recently as 2014 (Service 2018, pp. 
28 & 48). The unit currently supports all breeding, feeding, and 
sheltering needs for the species.

Unit 4: Upper New, Cripple Creek, Wythe County, VA

    Unit 4 consists of approximately 7.9 skm (4.9 smi) of Cripple Creek 
from a point approximately 3.2 skm (2.0 smi) upstream of the State Road 
94 bridge, downstream to the confluence of Cripple Creek and the New 
River. The land adjacent to this unit is primarily low-density 
residences and agricultural fields, although some small segments pass 
through wooded parcels. The stream in Unit 4 is adjacent to almost 
entirely private land, except for a small amount that is publicly owned 
in the form of bridge crossings, road easements, and the like. Surveys 
found candy darters at several locations within this unit as recently 
as 2016 (Service 2018, pp. 28 & 48). This is the only known candy 
darter population in the Upper New River watershed, and this unit 
contributes to the representation and redundancy of the species. The 
unit currently supports all breeding, feeding, and sheltering needs for 
the species.

Unit 5: Upper Gauley

    The Upper Gauley Unit consists of six stream subunits in Nicholas, 
Greenbrier, Pocahontas, and Webster Counties, WV. The occupied streams 
are adjacent to a mix of Federal and private land. Candy darter have 
been surveyed in the Upper Gauley Unit as recently as 2014 (Service 
2018, p. 48). The unit currently supports all breeding, feeding, and 
sheltering needs for the species. See details below.

Unit 5a: Gauley Headwaters, Webster County, WV

    Unit 5a consists of approximately 37.3 skm (23.2 smi) of the Gauley 
River from the North and South Forks of the Gauley River, downstream to 
the confluence of the Gauley River and the Williams River at Donaldson, 
WV; and 2.9 skm (1.8 smi) of Straight Creek from its confluence with 
the Gauley River to a point approximately 2.9 skm (1.8 smi) upstream of 
the confluence. The land adjacent to this unit is mostly forested; 
however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest 
clearings with varying degrees of regrowth, indicating ongoing timber 
harvests in some tributary stream systems. Other human development in 
the watershed consists primarily of scattered residences and roads, 
mostly in the valley adjacent to the Gauley River. Approximately 9.0 
skm (5.6 smi) of Unit 5a is within the Monongahela National Forest. The 
remainder of the unit is adjacent to almost entirely private land, 
except for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like. Surveys of Unit 5a captured 
candy darters at multiple locations (Service 2018, p. 28). The unit 
contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5b: Upper Gauley River, Nicholas and Webster Counties, WV

    Unit 5b consists of approximately 43.8 skm (27.2 smi) of the Gauley 
River from the confluence of the Gauley and Williams Rivers at 
Donaldson, WV, downstream to a point approximately 1.6 skm (1.0 smi) 
upstream of the Big Beaver Creek confluence. The land adjacent to this 
unit is mostly forested; however, aerial imagery (ESRI 2015; ESRI 2016; 
ESRI 2017) shows forest clearings with varying degrees of regrowth, 
indicating ongoing timber harvests in some areas. Other human 
development consists primarily of low-density residential areas and 
small communities with some commercial facilities. Small agricultural 
fields are associated with some of the scattered residences. 
Approximately 14.6 skm (9.2 smi) of Unit 5b is within the Monongahela 
National Forest and/or adjacent to land owned by the Corps. The streams 
in the remainder of the unit are adjacent to almost entirely private 
land, except for a small amount that is publicly owned in the form of 
bridge crossings, road easements, and the like. Surveys of Unit 5b 
captured candy darters at several locations (Service 2018, p. 28). The 
unit provides connectivity between other candy darter streams in the 
Upper Gauley watershed and contributes to the redundancy of the Upper 
Gauley metapopulation.

Unit 5c: Panther Creek, Nicholas County, WV

    Unit 5c consists of approximately 16.3 skm (10.1 smi) of Panther 
Creek from a point approximately 1.1 skm (0.7 smi) upstream of the 
Grassy Creek Road crossing, downstream to the confluence with the 
Gauley River. The unit is mostly forested; however, aerial imagery 
(ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying 
degrees of regrowth, indicating ongoing timber harvests in much of the 
upland areas. Other human development consists of the occasional 
residence and small agricultural field in the creek valley, and the 
Richwood Municipal Airport located on an adjacent ridge. The streams in 
Unit 5c are adjacent to almost entirely private land, except for a 
small amount that is publicly owned in the form of bridge crossings, 
road easements, and the like. While survey data are sparse for this 
unit, candy darters occur within Panther Creek, and the stream 
maintains suitable habitat for the species; thus, this unit contributes 
to the redundancy of the Upper Gauley metapopulation (Service 2018, p. 
28).

Unit 5d: Williams River, Pocahontas and Webster Counties, WV

    Unit 5d consists of approximately 52.4 skm (32.6 smi) of the 
Williams River from the confluence with Beaverdam Run, downstream to 
the confluence of the Williams River and the Gauley River at Donaldson, 
WV; and 5.1 skm (3.2 smi) of Tea Creek from a point on Lick Creek 
approximately 2.7 skm (1.7 smi) upstream of the Lick Creek confluence, 
downstream to the Tea Creek confluence with the Williams River. The 
land adjacent to this unit is almost entirely forested with just a few 
residences and small agricultural fields at the lower portion of the 
river. The streams in Unit 5d are entirely within the Monongahela 
National Forest. Survey data indicate candy darters are present at the 
upper and lower portions of this unit. While data are sparse for the 
majority of the intervening stretch, we assume, based on the available 
evidence, that the habitat is suitable for the species (Service 2018, 
p. 28). Unit 5d contributes to the redundancy of the Upper Gauley 
metapopulation.

[[Page 17966]]

Unit 5e: Cranberry River, Nicholas and Webster Counties, WV

    Unit 5e consists of approximately 39.3 skm (24.4 smi) of the 
Cranberry River from the confluence of the North and South Forks of the 
Cranberry River, downstream to the confluence of the Cranberry River 
and the Gauley River. The land adjacent to this unit is almost entirely 
forested, and the stream is entirely within the Monongahela National 
Forest. Survey data indicate candy darters are present at the upper and 
lower portions of this unit. While survey data are sparse for the 
intervening stretch, we assume, based on the available evidence, that 
the habitat is suitable for the species (Service 2018, p. 28). Unit 5e 
contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5f: Cherry River, Greenbrier and Nicholas Counties, WV

    Unit 5f consists of approximately 16.7 skm (10.4 smi) of Cherry 
River from the confluence of the North and South Forks of the Cherry 
River, downstream to the confluence of the Cherry River and the Gauley 
River; approximately 28.0 skm (17.4 smi) of the North Fork Cherry River 
from the Pocahontas Trail crossing, downstream to the confluence of the 
North and South Forks of the Cherry River; approximately 26.2 skm (16.3 
smi) of the South Fork Cherry River from a point approximately 0.5 skm 
(0.3 smi) south of County Road 29/4 in VA, downstream to the confluence 
of the North and South Forks of the Cherry River; and approximately 
24.9 skm (15.5 smi) of Laurel Creek from a point approximately 0.3 skm 
(0.2 smi) west of Cold Knob Road, downstream to the confluence of 
Laurel Creek and the Cherry River. The land adjacent to this unit is 
mostly forested with scattered residences along the lower portion of 
the Cherry River. The town of Richwood, WV, with residential and 
commercial development and an industrial sawmill, is at the confluence 
of the North and South Forks of the Cherry River. The North and South 
Forks of the Cherry River are almost entirely forested; however, aerial 
imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with 
varying degrees of regrowth, indicating ongoing timber harvests in 
several locations. There are scattered residences on Laurel Creek and 
some evidence of recent timber harvests; otherwise, the land adjacent 
to this section of Unit 1f is mostly forested. Approximately 29.1 skm 
(18.1 smi) of Unit 5f is within the Monongahela National Forest. The 
remainder is adjacent to almost entirely private land, except for a 
small amount that is publicly owned in the form of bridge crossings, 
road easements, and the like. Survey data indicate candy darters are 
well distributed throughout most of this unit (Service 2018, p. 28). 
Unit 5f contributes to the redundancy of the Upper Gauley 
metapopulation.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 45020). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the

[[Page 17967]]

species. Activities that may destroy or adversely modify critical 
habitat are those that result in a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of the candy darter. As discussed above, the role of 
critical habitat is to support physical or biological features 
essential to the conservation of a listed species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the candy darter. These activities include, but are 
not limited to:
    (1) Actions that would promote or facilitate the movement of 
variegate darters (or other nonnative aquatic species). Such activities 
could include, but are not limited to, the transfer of surface water 
across watershed boundaries and the modification or removal of dams 
that are currently limiting the spread of variegate darters where they 
have been introduced. These activities could further decrease the 
abundance of the candy darter through hybridization with the nonnative 
variegate darter.
    (2) Actions that would significantly increase water temperature or 
sedimentation and stream bottom embeddedness. Such activities could 
include, but are not limited to, land use changes that result in an 
increase in sedimentation, erosion, and bankside destruction or the 
loss of the protection of riparian corridors and leaving insufficient 
canopy cover along banks.
    (3) Actions that would significantly alter water chemistry. Such 
activities could include, but are not limited to, release of chemicals, 
biological pollutants, or heated effluents into the surface water or 
connected groundwater at a point source or by dispersed release 
(nonpoint source). These activities could alter water conditions to 
levels that are beyond the tolerances of the candy darter and result in 
direct or cumulative adverse effects to these individuals and their 
life cycles.
    (4) Actions that would contribute to further habitat fragmentation. 
Such activities include, but are not limited to, construction of 
barriers that impede the instream movement of the candy darter (e.g., 
dams, culverts, or weirs). These activities can isolate populations 
that are more at risk of decline or extirpation as a result of genetic 
drift, demographic or environmental stochasticity, and catastrophic 
events.
    (5) Actions that would contribute to nonnative competition for 
habitat and other instream resources and to predation. Possible actions 
could include, but are not limited to, release or stocking of nonnative 
fishes or other related actions. These activities can introduce 
predators or affect the growth, reproduction, and survival of the candy 
darter through competition for resources.

Exemptions

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

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

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an Incremental Effects Memo (IEM) and screening analysis, which 
together with our narrative and interpretation of effects we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation and related factors. The analysis, dated July 3 2018, was 
made available for public review from November 21, 2018, through 
January 22, 2019 (83 FR 59232). The DEA addressed probable economic 
impacts of critical habitat designation for candy darter. Following the 
close of the comment period, we reviewed and evaluated all information 
submitted during the comment period that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the candy darter is available in the screening analysis for the 
candy darter (IEc 2018), available at http://www.regulations.gov. We 
made no changes to the screening analysis from the proposed rule to the 
final rule.

Exclusions

Exclusions Based on Economic Impacts

    After the Service fully considered the economic impacts of the 
critical habitat designation, the Secretary has decided not to exercise 
his discretion to exclude any areas from this critical habitat 
designation based on those economic impacts. A copy of the IEM and 
screening analysis with supporting documents may be obtained by 
contacting the West Virginia Ecological Services Field Office (see 
ADDRESSES) or by downloading from the internet at http://www.regulations.gov.

Exclusions Based on Impacts on National Security and Homeland Security

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. We have determined that the lands adjacent 
to the designation of critical habitat for candy darter are not owned 
or managed by the Department of Defense or Department of Homeland 
Security, and, therefore, we anticipate no impact on national security. 
In addition, we did not receive any requests based for exclusions based 
on national security impacts from any Federal agency. Consequently, the 
Secretary is not exercising his discretion to exclude any areas from 
the final designation based on impacts on national security.

[[Page 17968]]

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, the Service considers any other 
relevant impacts of the critical habitat designation, in addition to 
economic impacts and impacts on national security. The Service 
considers a number of factors including whether there are permitted 
conservation plans covering the species in the area such as HCPs, safe 
harbor agreements, or candidate conservation agreements with 
assurances, or whether there are nonpermitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of tribal conservation plans and partnerships and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this final rule, we have determined that there are 
currently no permitted conservation plans or other non-permitted 
conservation agreements or partnerships for candy darter, and the final 
designation does not include any tribal lands or tribal trust 
resources. However, we are aware of management plans within the candy 
darter's range such as the Monongahela National Forest Land and 
Resource Management Plan and forest plans for the George Washington and 
Thomas Jefferson National Forests. We anticipate no impact on tribal 
lands, partnerships, permitted or nonpermitted plans or agreements from 
this critical habitat designation. Accordingly, the Secretary is not 
exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000 (13 CFR 121.201). To determine if 
potential economic impacts to these small entities are significant, we 
considered the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself, and therefore, not required to evaluate the potential impacts 
to indirectly regulated entities. The regulatory mechanism through 
which critical habitat protections are realized is section 7 of the 
Act, which requires Federal agencies, in consultation with the Service, 
to ensure that any action authorized, funded, or carried out by the 
Agency is not likely to destroy or adversely modify critical habitat. 
Therefore, under section 7, only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Consequently, it is our position that only Federal action agencies will 
be directly regulated by this designation. There is no requirement 
under RFA to evaluate the potential impacts to entities not directly 
regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that the final critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. The OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.

[[Page 17969]]

    The economic analysis finds that none of these criteria are 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with candy darter 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this proposed rule would significantly 
or uniquely affect small governments because the waters being proposed 
for critical habitat designation are owned by the States of Virginia 
and West Virginia. These government entities do not fit the definition 
of ``small government jurisdiction.'' Therefore, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for candy darter in a takings implications assessment. The Act 
does not authorize the Service to regulate private actions on private 
lands or confiscate private property as a result of critical habitat 
designation. Designation of critical habitat does not affect land 
ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed and 
concludes that this designation of critical habitat for candy darter 
does not pose significant takings implications for lands within or 
affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of this critical habitat designation with, appropriate 
State resource agencies in Virginia and West Virginia. We received 
comments from the West Virginia DNR and the West Virginia DEP and have 
addressed them in the Summary of Comments and Recommendations section 
of the preamble. From a federalism perspective, the designation of 
critical habitat directly affects only the responsibilities of Federal 
agencies. The Act imposes no other duties with respect to critical 
habitat, either for States and local governments, or for anyone else. 
As a result, the rule does not have substantial direct effects either 
on the States, or on the relationship between the national government 
and the States, or on the distribution of powers and responsibilities 
among the various levels of government. The designation may have some 
benefit to these governments because the areas that contain the 
features essential to the conservation of the species are more clearly 
defined, and the physical and biological features of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist these local 
governments in long-range planning (because these local governments no 
longer have to wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office

[[Page 17970]]

of the Solicitor has determined that the rule does not unduly burden 
the judicial system and that it meets the applicable standards set 
forth in sections 3(a) and 3(b)(2) of the Order. We are designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the candy darter. The designated areas 
of critical habitat are presented on maps, and the rule provides 
several options for the interested public to obtain more detailed 
location information, if desired.

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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. We determined that there are no tribal 
lands within the candy darter's historical or current range. Therefore, 
we are not designating critical habitat for the candy darter on tribal 
lands.

References Cited

    A complete list of all references cited 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 rule are the staff members of the 
Service's Species Assessment Team, the Northeast Regional Office, 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 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, in paragraph (h), by revising the entry for 
``Darter, candy'' under ``Fishes'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name                Scientific name        Where listed         Status       and  applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Fishes
 
                                                  * * * * * * *
Darter, candy....................  Etheostoma osburni..  Wherever found......            E   83 FR 58747, 11/21/
                                                                                              2018;
                                                                                             50 CFR
                                                                                              17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95, in paragraph (e), by adding an entry for ``Candy 
Darter (Etheostoma osburni)'' after the entry for ``Amber Darter 
(Percina antesella)'',
    to read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (e) * * *

Candy Darter (Etheostoma Osburni)

    (1) Critical habitat units are depicted for Bland, Giles, and Wythe 
Counties, Virginia, and Greenbrier, Nicholas, Pocahontas, and Webster 
Counties, West Virginia, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the candy darter consist of the 
following components:
    (i) Ratios or densities of nonnative species that allow for 
maintaining populations of candy darters.
    (ii) A blend of unembedded gravel and cobble that allows for normal 
breeding, feeding, and sheltering behavior.
    (iii) Adequate water quality characterized by seasonally moderated 
temperatures and physical and chemical parameters (e.g., pH, dissolved 
oxygen

[[Page 17971]]

levels, turbidity) that support normal behavior, growth, and viability 
of all life stages of the candy darter.
    (iv) An abundant, diverse benthic macroinvertebrate community 
(e.g., mayfly nymphs, midge larvae, caddisfly larvae) that allows for 
normal feeding behavior.
    (v) Sufficient water quantity and velocities that support normal 
behavior, growth, and viability of all life stages of the candy darter.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
May 7, 2021.
    (4) Critical habitat map units. The provided maps were made using 
the geographic projection GCS_North_American_1983 coordinate system. 
Four spatial layers are included as background layers. We used two 
political boundary layers indicating the State and county boundaries 
within the United States available through ArcMap Version 10.5 software 
by ESRI. The roads layer displays major interstates, U.S. highways, 
State highways, and county roads in the Census 2000/TIGER/Line dataset 
provided by the U.S. Census Bureau, and available through ArcMap 
Version 10.5 software. Lastly, the hydrologic data used to indicate 
river and stream location are a spatial layer of rivers, streams, and 
small tributaries from the National Hydrology Database (NHD) Plus 
Version 2 database. This database divides the United States into a 
number of zones, and the zones that include the area where candy darter 
critical habitat is indicated are the Ohio-05 hydrologic zone and the 
Mid Atlantic-02 hydrologic zone. The maps provided display the critical 
habitat in relation to State and county boundaries, major roads and 
highways, and connections to certain rivers and streams within the 
larger river network. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at https://www.fws.gov/northeast/candydarter/, at http://www.regulations.gov at Docket No. 
FWS-R5-ES-2018-0050, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.

[[Page 17972]]

    (5) Note: Index map of candy darter critical habitat units follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR07AP21.001


[[Page 17973]]


    (6) Index map of Unit 1-Greenbrier follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.002
    
    (7) Unit 1a: East Fork of Greenbrier River, Pocahontas County, West 
Virginia.
    (i) General description: Unit 1a consists of approximately 29.7 
stream kilometers (skm) (18.5 stream miles (smi)) of the East Fork of 
the Greenbrier River from the confluence of an unnamed tributary 
located 1.8 skm (1.1 smi) upstream of the Bennett Run confluence, 
downstream to the confluence of the East Fork and West Fork of the 
Greenbrier River at Durbin, West Virginia; and approximately 6.8 skm 
(4.2 smi) of the Little River from the U.S. Highway 250 crossing, 
downstream to the confluence of the Little River and the East Fork of 
the Greenbrier River; and approximately 1.9 skm (1.2 smi) of Buffalo 
Fork from the Buffalo Lake dam downstream to the confluence of Buffalo 
Fork and the Little River. Approximately 21.2 skm (13.2 smi) of Unit 1a 
is within the Monongahela National Forest with the remainder adjacent 
to almost entirely private land, except for a small amount that is

[[Page 17974]]

publicly owned in the form of bridge crossings, road easements, and the 
like.
    (ii) Map of Unit 1a, East Fork of Greenbrier River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.003
    
    (8) Unit 1b: West Fork of Greenbrier River, Pocahontas County, West 
Virginia.
    (i) General description: Unit 1b consists of approximately 29.9 skm 
(18.6 smi) of the West Fork of the Greenbrier River from the confluence 
with Snorting Lick Run, downstream to the confluence of the East Fork 
and West Fork of the Greenbrier River at Durbin, West Virginia; 
approximately 13.3 skm (8.3 smi) of the Little River from the 
confluence with Hansford Run, downstream to the confluence of the 
Little River and the West Fork of the Greenbrier River; and 
approximately 4.8 skm (3.0 smi) of Mountain Lick Creek from the 
confluence with an unnamed tributary (located 1.5 skm (0.9 smi) 
downstream of the Upper Mountain Lick Forest Service Road crossing), 
downstream to the confluence of Mountain Lick Creek and the West Fork 
of the Greenbrier River. Approximately 47.1 skm (29.3 smi) of Unit 1b 
is within the Monongahela National Forest with the remainder adjacent 
to almost

[[Page 17975]]

entirely private land, except for a small amount that is publicly owned 
in the form of bridge crossings, road easements, and the like.
    (ii) Map of Unit 1b, West Fork of Greenbrier River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.004
    
    (9) Unit 1c: Upper Greenbrier River, Pocahontas County, West 
Virginia.
    (i) General description: Unit 1c consists of approximately 69.3 skm 
(43.1 smi) of the Greenbrier River from the confluence of the East Fork 
and West Fork of the Greenbrier River at Durbin, West Virginia, 
downstream to the confluence of Knapp Creek at Marlinton, West 
Virginia. Approximately 47.5 skm (29.5 smi) of Unit 1c is within the 
Monongahela National Forest and the Seneca State Forest, with the 
remainder adjacent to private land, except for a small amount that is 
publicly owned in the form of bridge crossings, road easements, and the 
like.

[[Page 17976]]

    (ii) Map of Unit 1c, Upper Greenbrier River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.005
    
    (10) Unit 1d: Deer Creek, Pocahontas County, West Virginia.
    (i) General description: Unit 1d consists of approximately 21.2 skm 
(13.2 smi) of Deer Creek from the confluence of Deer Creek and 
Saulsbury Run, downstream to the confluence with the Greenbrier River; 
and approximately 16.3 skm (10.1 smi) of North Fork from a point 
approximately 1.6 skm (1.0 smi) upstream of the Elleber Run confluence, 
downstream to the confluence of North Fork and Deer Creek. 
Approximately 10.0 skm (6.2 smi) of Unit 1d is within the Monongahela 
National Forest, with the remainder adjacent to private land, except 
for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.

[[Page 17977]]

    (ii) Map of Unit 1d, Deer Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.006
    
    (11) Unit 1e: Sitlington Creek, Pocahontas County, West Virginia.
    (i) General description: Unit 1e consists of approximately 10.1 skm 
(6.3 smi) of Sitlington Creek from the confluence of Galford Run and 
Thorny Branch, downstream to the confluence with the Greenbrier River. 
Approximately 1.2 skm (0.7 smi) of Unit 1e is within the Monongahela 
National Forest, with the remainder adjacent to private land, except 
for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.

[[Page 17978]]

    (ii) Map of Unit 1e, Sitlington Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.007
    
    (12) Unit 1f: Knapp Creek, Pocahontas County, West Virginia.
    (i) General description: Unit 1f consists of approximately 43.9 skm 
(27.3 smi) of Knapp Creek from a point approximately (0.1 smi) west of 
the WV Route 84 and Public Road 55 intersection, downstream to the 
confluence with the Greenbrier River at Marlinton, West Virginia. 
Approximately 7.2 skm (4.5 smi) of Unit 1f is within the Monongahela 
National Forest, with the remainder adjacent to private land, except 
for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.

[[Page 17979]]

    (ii) Map of Unit 1f, Knapp Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.008
    

[[Page 17980]]


    (13) Index map of Unit 2-Middle New follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.009
    
    (14) Unit 2a: Dismal Creek, Bland and Giles Counties, Virginia.
    (i) General description: Unit 2a consists of approximately 4.2 skm 
(2.6 smi) of Dismal Creek from the confluence with Standrock Branch, 
downstream to the confluence of Dismal Creek and Kimberling Creek. 
Approximately 3.2 skm (2.0 smi) of Unit 2a is within the George 
Washington and Jefferson National Forest, with the remainder adjacent 
to private land, except for a small amount that is publicly owned in 
the form of bridge crossings, road easements, and the like.

[[Page 17981]]

    (ii) Map of Unit 2a, Dismal Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.010
    
    (15) Unit 2b: Stony Creek, Giles County, Virginia.
    (i) General description: Unit 2b consists of approximately 31.1 skm 
(19.3 smi) of Stony Creek from the confluence with White Rock Branch, 
downstream to the confluence with the New River. Approximately 16.1 skm 
(10.0 smi) of Unit 2b is within the George Washington and Jefferson 
National Forest, with the remainder adjacent to private land, except 
for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.

[[Page 17982]]

    (ii) Map of Unit 2b, Stony Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.011
    
    (16) Unit 2c: Laurel Creek, Bland County, Virginia.
    (i) General description: Unit 2c consists of approximately 5.1 skm 
(3.2 smi) of Laurel Creek from a point approximately 0.8 skm (0.5 smi) 
upstream of the unnamed pond, downstream to the confluence of Laurel 
Creek and Wolf Creek and approximately 1.4 skm (0.8 smi) of Wolf Creek 
from the Laurel Creek confluence downstream to the stream riffle 
adjacent to the intersection of Wolf Creek Highway and Alder Lane. Unit 
2c is adjacent to private land, except for a small amount that is 
publicly owned in the form of bridge crossings, road easements, and the 
like.

[[Page 17983]]

    (ii) Map of Unit 2c, Laurel Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.012
    
    (17) Unit 3: Lower Gauley, ``Lower'' Gauley River, Nicholas County, 
West Virginia.
    (i) General description: Unit 3 consists of approximately 2.9 skm 
(1.8 smi) of the Gauley River from the base of the Summersville Dam, 
downstream to the confluence of Collison Creek. The entirety of Unit 3 
is within the National Park Service's Gauley River National Recreation 
Area and the U.S. Army Corps of Engineer's Summersville Recreation 
Area.

[[Page 17984]]

    (ii) Map of Unit 3-Lower Gauley follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.013
    
    (18) Unit 4: Upper New, Cripple Creek, Wythe County, Virginia.
    (i) General description: Unit 4 consists of approximately 7.9 skm 
(4.9 smi) of Cripple Creek from a point approximately (2.0 smi) 
upstream of the State Road 94 bridge, downstream to the confluence of 
Cripple Creek and the New River. The stream in Unit 4 is adjacent to 
private land, except for a small amount that is publicly owned in the 
form of bridge crossings, road easements, and the like.

[[Page 17985]]

    (ii) Map of Unit 4-Upper New follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.014
    

[[Page 17986]]


    (19) Index map of Unit 5-Upper Gauley follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.015
    
    (20) Unit 5a: Gauley Headwaters, Webster County, West Virginia.
    (i) General description: Unit 5a consists of approximately 37.3 skm 
(23.2 smi) of the Gauley River from the North and South Forks of the 
Gauley River, downstream to the confluence of the Gauley River and the 
Williams River at Donaldson, West Virginia; and 2.9 skm (1.8 smi) of 
Straight Creek from its confluence with the Gauley River to a point 
approximately 2.9 skm (1.8 smi) upstream of the confluence. 
Approximately 9.0 skm (5.6 smi) of Unit 5a is within the Monongahela 
National Forest. The remainder of the unit is adjacent to private land, 
except for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.

[[Page 17987]]

    (ii) Map of Unit 5a, Gauley Headwaters, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.016
    
    (21) Unit 5b: Upper Gauley River, Nicholas and Webster Counties, 
West Virginia.
    (i) General description: Unit 5b consists of approximately 43.8 skm 
(27.2 smi) of the Gauley River from the confluence of the Gauley and 
Williams Rivers at Donaldson, West Virginia, downstream to a point 
approximately 1.6 skm (1.0 smi) upstream of the Big Beaver Creek 
confluence. Approximately 14.6 skm (9.2 smi) of Unit 5b is within the 
Monongahela National Forest and/or adjacent to land owned by the U.S. 
Army Corps of Engineers. The streams in the remainder of the unit are 
adjacent to private land, except for a small amount that is publicly 
owned in the form of bridge crossings, road easements, and the like.

[[Page 17988]]

    (ii) Map of Unit 5b, Upper Gauley River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.017
    
    (22) Unit 5c: Panther Creek, Nicholas County, West Virginia.
    (i) General description: Unit 5c consists of approximately 16.3 skm 
(10.1 smi) of Panther Creek from a point approximately 1.1 skm (0.7 
smi) upstream of the Grassy Creek Road crossing, downstream to the 
confluence with the Gauley River. The streams in Unit 5c are adjacent 
to private land, except for a small amount that is publicly owned in 
the form of bridge crossings, road easements, and the like.

[[Page 17989]]

    (ii) Map of Unit 5c, Panther Creek, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.018
    
    (23) Unit 5d: Williams River, Pocahontas and Webster Counties, West 
Virginia.
    (i) General description: Unit 5d consists of approximately 52.4 skm 
(32.6 smi) of the Williams River from the confluence with Beaverdam 
Run, downstream to the confluence of the Williams River and the Gauley 
River at Donaldson, West Virginia; and 5.1 skm (3.2 smi) of Tea Creek 
from a point on Lick Creek approximately 2.7 skm (1.7 smi) upstream of 
the Lick Creek confluence, downstream to the Tea Creek confluence with 
the Williams River. The streams in Unit 5d are entirely within the 
Monongahela National Forest.

[[Page 17990]]

    (ii) Map of Unit 5d, Williams River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.019
    
    (24) Unit 5e: Cranberry River, Nicholas and Webster Counties, West 
Virginia.
    (i) General description: Unit 5e consists of approximately 39.3 skm 
(24.4 smi) of the Cranberry River from the confluence of the North and 
South Forks of the Cranberry River, downstream to the confluence of the 
Cranberry River and the Gauley River. This stream is entirely within 
the Monongahela National Forest.

[[Page 17991]]

    (ii) Map of Unit 5e, Cranberry River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.020
    
    (25) Unit 5f: Cherry River, Greenbrier and Nicholas Counties, West 
Virginia.
    (i) General description: Unit 5f consists of approximately 16.7 skm 
(10.4 smi) of Cherry River from the confluence of the North and South 
Forks of the Cherry River, downstream to the confluence of the Cherry 
River and the Gauley River; approximately 28.0 skm (17.4 smi) of the 
North Fork Cherry River from the Pocahontas Trail crossing, downstream 
to the confluence of the North and South Forks of the Cherry River; 
approximately 26.2 skm (16.3 smi) of the South Fork Cherry River from a 
point approximately 0.5 skm (0.3 smi) south of County Road 29/4 in 
Virginia, downstream to the confluence of the North and South Forks of 
the Cherry River; and approximately 24.9 skm (15.5 smi) of Laurel Creek 
from a point approximately 0.3 skm (0.2 smi) west of Cold Knob Road, 
downstream to the confluence of Laurel Creek and the Cherry River. 
Approximately 29.1 skm (18.1 smi) of Unit 5f is within the

[[Page 17992]]

Monongahela National Forest. The remainder is adjacent to private land, 
except for a small amount that is publicly owned in the form of bridge 
crossings, road easements, and the like.
    (ii) Map of Unit 5f, Cherry River, follows:
    [GRAPHIC] [TIFF OMITTED] TR07AP21.021
    
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-06748 Filed 4-6-21; 8:45 am]
BILLING CODE 4333-15-C