[Federal Register Volume 87, Number 215 (Tuesday, November 8, 2022)]
[Rules and Regulations]
[Pages 67380-67396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23618]



[[Page 67380]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0094; FF09E21000 FXES11110900000 234]
RIN 1018-BE89


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened status under the Endangered Species Act of 1973 (Act), as 
amended, for the sickle darter (Percina williamsi), a fish species from 
the upper Tennessee River drainage in North Carolina, Tennessee, and 
Virginia. This rule adds the species to the List of Endangered and 
Threatened Wildlife. We also finalize a rule under the authority of 
section 4(d) of the Act that provides measures that are necessary and 
advisable to provide for the conservation of the sickle darter.

DATES: This rule is effective December 8, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R4-ES-2020-0094. Supporting materials we used in preparing this rule, 
such as the species status assessment report, are available on the 
Service's website at https://www.fws.gov/tennessee-ecological-services/library, at https://regulations.gov at Docket No. FWS-R4-ES-2020-0094 
or both.

FOR FURTHER INFORMATION CONTACT: Daniel Elbert, Field Supervisor, U.S. 
Fish and Wildlife Service, Tennessee Ecological Services Field Office, 
446 Neal Street, Cookeville, TN 38501; telephone 913-528-6481. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is an endangered or threatened species throughout all or a 
significant portion of its range, we are required to promptly publish a 
proposal in the Federal Register and make a determination on our 
proposal within one year. Whenever any species is listed as a 
threatened species, the Secretary shall issue such regulations as she 
deems necessary and advisable to provide for the conservation of such 
species. In addition, the Secretary may by regulation prohibit with 
respect to any threatened species any act prohibited under section 
9(a)(1) of the Act for endangered species. Listing a species as an 
endangered or threatened species and designation of critical habitat 
can only be completed by issuing a rulemaking.
    What this document does. This final rule lists the sickle darter as 
a threatened species and adopts a rule issued under section 4(d) of the 
Act for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that threats to the sickle 
darter include habitat loss or degradation stemming from hydrologic 
alteration by impoundments, including dams and other barriers; land 
development that does not incorporate best management practices (BMPs); 
and diminished water quality from point and non-point source pollution 
and siltation (Factor A). These threats contribute to the negative 
effects associated with the species' reduced range and potential 
effects of climate change (Factor E).
    We are not designating critical habitat for the sickle darter at 
this time. To the maximum extent prudent and determinable, we must 
designate critical habitat for any species that we determine to be an 
endangered or threatened species under the Act. A careful assessment of 
the economic impacts that may occur due to a critical habitat 
designation is still ongoing, and we are in the process of working with 
States and other partners in acquiring the complex information needed 
to perform that assessment. We will propose critical habitat once we 
have completed our economic assessment.

Previous Federal Actions

    Please refer to the sickle darter's proposed listing rule (85 FR 
71859; November 12, 2020) for a detailed description of previous 
Federal actions concerning this species.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the sickle darter. The SSA team was composed of Service biologists, in 
consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the sickle darter SSA report. As 
discussed in the proposed rule, we sent the SSA report to five 
independent peer reviewers and received four responses. The peer 
reviews can be found at https://www.regulations.gov under Docket No. 
FWS-R4-ES-2020-0094. In preparing the proposed rule, we incorporated 
the results of these reviews, as appropriate, into the SSA report, 
which was the foundation for the proposed rule and this final rule.

Summary of Changes From the Proposed Rule

    This final rule incorporates several changes to our proposed rule 
(85 FR 71859; November 12, 2020) based on the comments we received. 
These changes are summarized below and discussed further under Summary 
of Comments and Recommendations. Minor, nonsubstantive changes and 
corrections are made throughout this rule in response to comments. 
However, the information we received during the public comment period 
on the proposed rule did not change our determination that the sickle 
darter is a threatened species.
    We received substantive comments on the proposed rule issued under 
section 4(d) of the Act (``4(d) rule'') for the sickle darter. We have 
made changes to this rule as a result of the public comments we 
received. In summary, we modified the language for four

[[Page 67381]]

exceptions to incidental take prohibitions in the sickle darter 4(d) 
rule.
     We modified the exception to the incidental take 
prohibition for bank stabilization projects to add a requirement that 
appropriate ``native'' vegetation, including woody and herbaceous 
species appropriate for the region and habitat, be used for 
stabilization.
     We modified the exception to the incidental take 
prohibition for transportation projects to include actions that avoid 
the sickle darter spawning period to protect the fish during the 
sensitive life stage of spawning. Transportation projects that take 
place between April 1 and January 31 (outside the spawning period) are 
consistent with the timing of other exceptions to take prohibitions for 
sickle darter.
     We modified the exception to the incidental take 
prohibition for silviculture and forest management activities to apply 
throughout the year (i.e., we removed the spawning period consideration 
from this exception based on implemented silvicultural BMPs as long as 
those activities implement State-approved BMPs and meet the conditions 
specified in the 4(d) rule. We modified the exception to the incidental 
take prohibition for silviculture and forest management activities to 
reflect language consistent with final 4(d) rules for species with 
similar habitat requirements (see (6) Comment under Summary of Comments 
and Recommendations, below).

I. Final Listing Determination

Background

Sickle Darter

    A thorough review of the taxonomy, life history, and ecology of the 
sickle darter is presented in the SSA report (Service 2020a, pp. 9-30). 
The biological information for the sickle darter in the SSA report is 
summarized below.
    The sickle darter is a small fish native to the upper Tennessee 
River drainage in North Carolina, Tennessee, and Virginia. The species 
currently has a disjunct distribution, with populations in the Emory 
River, Little River, Sequatchie River, and Emory River systems in 
Tennessee, and in the upper Clinch River, North Fork Holston River, and 
Middle Fork Holston River systems in Virginia. Populations within the 
French Broad River system in North Carolina and Tennessee, and within 
the South Fork Holston River, Powell River, and Watauga River systems 
in Tennessee are extirpated. A thorough review of the taxonomy, life 
history, and ecology of the sickle darter is presented in the SSA 
report (Service 2020a, pp. 9-13).
    The sickle darter has a long, slender body reaching up to 120 
millimeters (mm) (4.7 inches (in)) in length and an elongated, pointed 
snout. The upper body color is brown to olive with a white to pale 
yellow lower body. Spawning occurs in late winter (February to March), 
and the species has a maximum lifespan of 3 to 4 years. Sickle darters 
typically occupy flowing pools over rocky, sandy, or silty substrates 
in clear creeks or small rivers. Occupied streams tend to have good 
water quality, with low turbidity and negligible siltation (Etnier and 
Starnes 1993, p. 576; Alford 2019, p. 9). In these habitats, the 
species is most often associated with clean sand-detritus or gravel-
cobble-boulder substrates, stands of American water willow (Justicia 
americana), or woody debris piles at water depths ranging from 0.4 to 
1.0 meter (m) (1.3 to 3.3 feet (ft)) (Etnier and Starnes 1993, p. 576; 
Page and Near 2007, p. 609; Alford 2019, p. 8). Streams supporting 
sickle darters range from 9 to 33 m (29 to 108 ft) wide, and streamside 
tree canopy cover in these streams ranges from open to nearly closed 
(Alford 2019, p. 8). The species spends most of its time in the water 
column, often hovering a few inches above the stream or river bottom 
(Etnier and Starnes 1993, p. 576).
    In winter, sickle darters have been observed in deep pools (depths 
of up to 3 m (10 ft)) or in slow-flowing, shallow pools in close 
proximity to cover (Etnier and Starnes 1993, p. 576; Service 2020b, p. 
1). The species migrates from the deepest areas of pools to shallow, 
gravel shoals (riffles) in late winter or early spring (February to 
March) to spawn (Etnier and Starnes 1993, p. 576). Spawning begins when 
stream water temperatures reach 10 to 16 Celsius ([deg]C) (50 to 60 
Fahrenheit ([deg]F)) (Petty et al. 2017, p. 3). Sexual maturity of 
males occurs at the end of the first year of life, while sexual 
maturity of females occurs at the end of their second year of life 
(Page 1978, p. 663; Petty et al. 2017, p. 3). Females produce up to 355 
eggs per clutch, which hatch in 21 days at an average stream 
temperature of 10 [deg]C (50 [deg]F) (Etnier and Starnes 1993, p. 576). 
The incubation period is likely shorter (about 2 weeks) when stream 
temperatures are higher (Service 2020b, p. 1). The larvae move up and 
down in the water column and presumably feed on zooplankton and other 
small macroinvertebrates after depleting yolk sac nutrients (Etnier and 
Starnes 1993, p. 576; Petty et al. 2017, p. 3). After about 30 days, 
the larvae move to the stream bottom where they mature (Petty et al. 
2017, p. 3). Except for their late winter movements from pools to 
riffles for spawning, no information is available on the movement 
behavior of the sickle darter. However, studies of two closely related 
species in the genus Percina (longhead darter and frecklebelly darter) 
indicate that the sickle darter likely exhibits seasonal upstream and 
downstream movements (Eisenhour et al. 2011, p. 15; Eisenhour and 
Washburn 2016, pp. 19-24).
    Sickle darters feed primarily on larval mayflies and midges; minor 
prey items include riffle beetles, caddisflies, dragonflies, and 
several other groups of aquatic macroinvertebrates (Page and Near 2007, 
pp. 609-610; Alford 2019, p. 10). Crayfish have been reported as a 
common food item for the closely related longhead darter (Page 1978, p. 
663), but have not been observed in the sickle darter's diet (Alford 
2019, p. 10).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued final rules that revised the regulations in 
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify 
threatened and endangered species and the criteria for designating 
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August 
27, 2019). At the same time the Service also issued final regulations 
that, for species listed as threatened species after September 26, 
2019, eliminated the Service's general protective regulations 
automatically applying to threatened species the prohibitions that 
section 9 of the Act applies to endangered species (collectively, the 
2019 regulations).
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are the governing law just 
as they were when we completed the proposed rule. Although there was a 
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations 
therefore governed, the 2019 regulations are now in effect and govern 
listing and critical habitat

[[Page 67382]]

decisions (see Center for Biological Diversity v. Haaland, No. 4:19-cv-
05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (CBD v. Haaland) (vacating 
the 2019 regulations and thereby reinstating the pre-2019 regulations)) 
and In re: Cattlemen's Ass'n, No. 22-70194 (9th Cir. Sept. 21, 2022) 
(staying the vacatur of the 2019 regulations and thereby reinstating 
the 2019 regulations until a pending motion for reconsideration before 
the district court is resolved)).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data available 
regarding the status of the species, including an assessment of the 
potential threats to the species. The SSA report does not represent a 
decision by the Service on whether the species should be proposed for 
listing as an endangered or threatened species under the Act. However, 
it does provide the scientific basis that informs our regulatory 
decisions, which involve the further application of standards within 
the Act and its implementing regulations and policies.
    To assess sickle darter viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm or cold years), redundancy 
supports the ability of the species to withstand catastrophic events 
(for example, droughts, large pollution events), and representation 
supports the ability of the species to adapt to both near-term and 
long-term changes in the environment (for example, climate conditions, 
pathogen). In general, species viability will increase with increases 
in resiliency, redundancy, and representation. Using these principles, 
we identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA process involved 
making predictions about the species' responses to positive and 
negative environmental and anthropogenic influences. Throughout all of 
these stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision. The following is a summary of the key results and conclusions 
from the SSA report; the full SSA report can be found at Docket No. 
FWS-R4-ES-2020-0094 and on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. For sickle darter 
populations to be resilient, the needs of individuals (slow-flowing 
pools, substrate, food

[[Page 67383]]

availability, water quality, and aquatic vegetation or large woody 
debris) must be met at a larger scale. Stream reaches with suitable 
habitat must be large enough to support an appropriate number of 
individuals to avoid negative effects associated with small population 
size, such as inbreeding depression and the Allee effect (whereby low 
population density reduces the probability of encountering mates for 
spawning). Connectivity of stream reaches allows for immigration and 
emigration between populations and increases the likelihood of 
recolonization should a population be lost. At the species level, the 
sickle darter needs a sufficient number and distribution of healthy 
populations to withstand environmental stochasticity (resiliency) and 
catastrophes (redundancy) and adapt to biological and physical changes 
in its environment (representation). To evaluate the current and future 
viability of the sickle darter, we assessed a range of conditions to 
allow us to consider the species' resiliency, representation, and 
redundancy.

Factors Influencing Viability of Sickle Darter

    Habitat loss and degradation resulting from siltation, water 
quality degradation, and impoundments pose the largest risk to the 
current and future viability of the sickle darter and are the primary 
contributors to the species' reduced range, population fragmentation, 
and population loss. The effects of population fragmentation and 
isolation may exacerbate the effects of other threats on the sickle 
darter. Climate change is a potential stressor that may impact the 
sickle darter in the future. We found the species does not face 
significant threats from overutilization, disease, predation, or 
invasive species. States provide some protections for the sickle darter 
and we found that inadequacy of regulatory mechanisms is not a threat 
to the species. A brief summary of relevant stressors is presented 
below; for a full description, refer to chapter 3 of the SSA report and 
the proposed rule (Service 2020a, entire; 85 FR 71864-71866).
    Siltation can affect fishes through abrasion of gill tissues, 
suffocation of eggs or larvae, reductions in disease tolerance, 
degradation of spawning habitats, modification of migration patterns, 
and reductions in food availability (Berkman and Rabeni 1987, pp. 285-
294; Waters 1995, pp. 5-7; Wood and Armitage 1997, pp. 211-212; Meyer 
and Sutherland 2005, pp. 2-3).
    A variety of pollutants that may impact the sickle darter continue 
to degrade stream water quality within the upper Tennessee River 
drainage (Locke et al. 2006, pp. 197, 202-203; TDEC 2010, pp. 42-48; 
TDEC 2014, pp. 47-53; Zipper et al. 2016, p. 604; TDEC 2017, pp. 51-
106; VDEQ 2020 (appendix 5), pp. 2387-2617). Major pollutants within 
the upper Tennessee River drainage include pathogens, domestic sewage, 
animal waste, nutrients, metals, and toxic organic compounds.
    Impoundments have significantly influenced the species' current 
distribution within the upper Tennessee River drainage through 
physical, chemical, and biological changes to these systems (Etnier and 
Starnes 1993, p. 576; Jenkins and Burkhead 1994, pp. 101-106; Service 
2020a, p. 3).
    Sickle darter populations are localized and geographically isolated 
from one another due to impoundments and other habitat degradation, 
leaving them vulnerable to localized extinctions from toxic chemical 
spills, habitat modification, progressive degradation from runoff (non-
point source pollutants), natural catastrophic changes to their habitat 
(e.g., flood scour, drought), other stochastic disturbances, and 
decreased fitness from reduced genetic diversity.
    Changing climate conditions can influence sickle darter viability 
through changes in water temperature and precipitation patterns that 
result in increased flooding, prolonged droughts, or reduced stream 
flows (McLaughlin et al. 2002, pp. 6060-6074; Cook et al. 2004, pp. 
1015-1018; Thomas et al. 2004, pp. 145-148; IPCC 2014, pp. 58-83). The 
species' early spawning period (February to March) makes it vulnerable 
to warming temperatures and higher flows--conditions that could 
interrupt or prevent successful spawning in a given year (Service 
2020b, p. 3).
Synergistic Effects
    In addition to individually impacting the species, it is likely 
that several of the above summarized risk factors are acting 
synergistically or additively on the sickle darter. The combined impact 
of multiple stressors is likely more harmful than a single stressor 
acting alone. For example, impoundments in the upper Tennessee River 
drainage cause changes in riverine habitats, including increased 
sediment deposition (siltation). Additionally, sediment particles in 
urban and agricultural runoff carry bound nutrients (phosphorus and 
nitrogen) and other stream pollutants into streams and rivers.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species but have also analyzed 
their potential cumulative effects. We incorporate the cumulative 
effects into our SSA analysis when we characterize the current and 
future condition of the species. To assess the current and future 
condition of the species, we undertake an iterative analysis that 
encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.
    We delineated analytical units (populations) using the tributary 
systems the sickle darter historically occupied. Each population 
represents demographically linked interbreeding individuals; however, 
these populations are currently separated by long distances or isolated 
by impoundments. We identified 10 historical populations across the 
range of the sickle darter: Emory River, Clinch River, Powell River, 
Little River, French Broad River, North Fork Holston River, Middle Fork 
Holston River, South Fork Holston River, Watauga River, and Sequatchie 
River.
    To assess resiliency, we evaluated six components that broadly 
relate to the species' physical environment or its population 
demography. Each population's physical environment was assessed by 
averaging three components determined to have the most influence on the 
species: physical habitat quality, connectivity, and water quality. The 
three components describing population demography were reproduction, 
occurrence extent (total length of occupied streams compared to 
historical range), and occupied stream length. Parameters for each 
component's condition category were established by evaluating the range 
of existing data and separating those data into categories based on our 
understanding of the species' demographics and habitat. Using the 
demographic and habitat parameters, we then categorized the overall 
condition of each population. We weighted each of the six components 
equally and determined the average score to describe each population's 
current condition (see table 1, below).

[[Page 67384]]

    Due to a limited amount of species-specific genetic information for 
the sickle darter, we based our evaluation of the species' 
representation on the extent and variability of environmental diversity 
(habitat diversity) across the species' geographical range. 
Additionally, we assessed sickle darter redundancy (ability of species 
to withstand catastrophic events) by evaluating the number and 
distribution of resilient populations throughout the species' range. 
Highly resilient populations, coupled with a relatively broad 
distribution, have a positive relationship to species-level redundancy.

              Table 1--Component Conditions Used To Assess Resiliency for Sickle Darter Populations
----------------------------------------------------------------------------------------------------------------
                                                                     Condition
            Component            -------------------------------------------------------------------------------
                                         High              Moderate               Low                  0
----------------------------------------------------------------------------------------------------------------
Physical Habitat................  Slow-flowing pools  Slow-flowing pools  Slow-flowing pools  Habitat
                                   abundant (ample     present but not     scarce (few pools   unsuitable.
                                   cover in pools);    abundant (some      with cover); silt
                                   silt deposition     pools with          deposition
                                   low; no extensive   cover); silt        extensive;
                                   or significant      deposition          habitat severely
                                   habitat             moderate; habitat   altered and
                                   alteration such     alteration at       recognized as
                                   as recent           moderate level      impacting the
                                   channelization or   such that           species; <25% of
                                   riparian            channelization or   habitats suitable
                                   clearing; >75% of   other habitat       for the species.
                                   available habitat   disturbance more
                                   suitable for the    widespread; 25-
                                   species.            75% of available
                                                       habitat suitable
                                                       for the species.
Connectivity....................  High immigration    Moderate            Low immigration     No connectivity
                                   potential between   immigration         potential between   (populations
                                   populations (no     potential between   populations         isolated; no
                                   dams or other       populations         (populations        immigration
                                   barriers            (populations        separated by >=2    potential due to
                                   separating          separated by one    low-head dams or    the presence of
                                   populations).       low-head dam, and   other barriers).    large
                                                       other partial                           reservoirs).
                                                       barriers, such as
                                                       narrow culverts,
                                                       may be present).
Water Quality...................  Minimal or no       Water quality       Water quality       Water quality
                                   known water         issues recognized   issues prevalent    unsuitable.
                                   quality issues      that may impact     within system,
                                   (i.e., no 303(d)    species (i.e.,      likely impacting
                                   streams*            some 303(d)         populations
                                   impacting the       streams*, unpaved   (i.e., numerous
                                   species, area       roads more          303(d) streams *).
                                   sparsely            common, moderate
                                   populated, few      levels of
                                   roads).             developed land
                                                       use).
Reproduction....................  Clear evidence of   Clear evidence of   No direct evidence  Extirpated.
                                   reproduction,       reproduction,       of reproduction
                                   with multiple age   juveniles           (only adults
                                   classes present.    present, but        present).
                                                       multiple age
                                                       classes not
                                                       detected.
Occurrence Extent...............  <10% decline from   10-50% decline      >50% decline from   Extirpated.
                                   historical range.   from historical     historical range.
                                                       range.
Occupied Stream Length            >=22.5 km (>=14     11.3-22.5 km (7-14  <11.3 km (<7 mi)..  Extirpated.
 (Continuity).                     mi).                mi).
----------------------------------------------------------------------------------------------------------------
* A 303(d) stream is a stream listed under section 303(d) of the Clean Water Act of 1972 (33 U.S.C. 1251 et
  seq.) as a water body impaired by pollutants.

Current Condition of Sickle Darter

    Historically, the sickle darter was known from 10 river system in 
Tennessee, Virginia, and North Carolina. Of these 10, sickle darter 
populations have been extirpated from the Powell River, French Broad 
River, South Fork Holston River, and Watauga River systems, including 
the species' only population within the Blue Ridge ecoregion. 
Currently, the sickle darter is known from six tributary systems in the 
upper Tennessee River drainage: Emory River, Little River, Clinch 
River, North Fork Holston River, Middle Fork Holston River, and 
Sequatchie River. The Sequatchie River population was discovered in 
2014; the other 5 river systems were historically occupied. 
Impoundments and water pollution in the upper Tennessee River drainage 
were major factors in the decline of the sickle darter and several 
other fishes during the early to mid-20th century (Etnier and Starnes 
1993, pp. 15, 576). Current factors affecting the condition of sickle 
darter populations include habitat and water quality degradation, low 
connectivity, and small population size (e.g., Clinch River). As shown 
in table 2, below, the Emory River and Little River populations exhibit 
moderate resiliency, as evidenced by the species' persistence within 
these systems for over 45 years, recent and repeated evidence of 
reproduction and recruitment, a relatively long occupied reach in each 
system (more than 22.5 kilometers (km) (14 miles (mi))), and the 
physical habitat condition and water quality in both systems. The 
remaining four populations exhibit low resiliency. They are represented 
by fewer documented occurrences, no evidence of recruitment, and 
shorter occupied reaches, and they occur in areas with limited habitat 
and water quality.
    The species' adaptive potential (representation) is low because of 
its reduced range (and presumably associated reduction in genetic 
diversity), and the loss of connectivity caused by dam construction. 
The sickle darter occupies only two of three Environmental Protection 
Agency (EPA) Level III ecoregions, where it historically occurred the 
Ridge and Valley and the Southwestern Appalachians. The species has not 
been observed from the Blue Ridge ecoregion (French Broad River, North 
Carolina) since the 1940s. This reduction in the extent and variability 
of environmental diversity (habitat diversity) has likely reduced the 
sickle darter's ability to adapt to changing environmental conditions 
over time. Species isolation due to multiple large impoundments

[[Page 67385]]

also reduces the opportunities for or preventing the exchange of novel 
or beneficial adaptations and reducing the species' ability to migrate 
to more suitable habitats when necessary.
    We assessed the number and distribution of resilient populations 
across the sickle darter's range as a measure of its redundancy. 
Construction of dams across the upper Tennessee River drainage has 
eliminated connectivity between extant populations. However, within the 
currently occupied streams, large barriers are absent, although some 
small barriers that hamper movement are present (e.g., defunct low-head 
mill dams, low-water bridges, narrow or partially blocked culverts). As 
such, there is connectivity within each occupied stream and opportunity 
for movement of individuals, decreasing the effect of localized 
stochastic events. Four of ten historical sickle darter populations 
have been extirpated, leading to reduced redundancy from historical 
levels. Overall, the sickle darter exhibits a low degree of redundancy 
based on the number of moderately resilient populations across the 
range, and the lack of connectivity between occupied streams, 
increasing the species' vulnerability to catastrophic events.

Future Scenarios

    For details regarding the predicted future condition for the sickle 
darter under each scenario, see chapter 5 of the SSA report (Service 
2020a, pp. 54-68). In our SSA report, we defined viability as the 
ability of the species to sustain populations in the wild over time. To 
help address uncertainty associated with the degree and extent of 
potential future stressors and their impacts on the species' needs, the 
concepts of resiliency, redundancy, and representation were assessed 
using three plausible future scenarios. We devised these scenarios by 
identifying information on the following primary threats anticipated to 
affect sickle darter in the future: land cover, urbanization, climate 
change, and conservation activity. The three scenarios capture the 
range of uncertainty in the changing landscape and how sickle darter 
will respond to the changing conditions (see table 2, below). We used 
the best available data and models to project 50 years into the future 
(i.e., 2070), a timeframe in which we were reasonably certain we could 
forecast the patterns in land use change, urbanization, and climate 
models (future threats) in the species' range and the sickle darter's 
response to those threats, given the species' life span.
    Under Scenario 1 (continuation of current trend), no significant 
increases or decreases are expected with respect to land cover, 
urbanization, or habitat conditions, and habitat restoration efforts 
(e.g., livestock fencing, riparian plantings, streambank restoration) 
by the Service and its partners are projected to continue at current 
levels. In addition, climate change would track representative 
concentration pathway (RCP) 4.5. Three of six extant sickle darter 
populations, Emory River, Little River, and Sequatchie River, are 
projected to maintain their resiliency categories at current levels. 
The other three extant populations, Clinch River, Middle Fork Holston 
River, and North Fork Holston River are projected to become extirpated 
within 30 years. The species' redundancy and representation are 
expected to remain at low levels.
    Under Scenario 2 (improving trend), habitat conditions throughout 
the upper Tennessee River drainage are projected to improve due to 
increased conservation efforts and improving land use practices (e.g., 
greater forest cover and reduced agricultural and development effects). 
Based on these factors, resiliency of all extant populations would 
remain at current levels or increase, and the species may be 
rediscovered or will be reintroduced into portions of the Powell River 
system and French Broad River system. The species has been successfully 
propagated in captivity and has been reintroduced in one location, 
although monitoring at the site has not occurred. If reintroduction 
efforts occur as projected under Scenario 2, the species' redundancy 
would increase the current level because populations will occur in two 
additional (historically occupied) river systems, increasing the number 
of extant populations from 6 to 8. In spite of the two added 
populations, representation would remain low because individuals would 
have the same genetic composition of parental stock in the rivers from 
which they were sourced, or will be founded from very small, previously 
undetected populations.
    Under Scenario 3 (worsening trend), habitat conditions are 
projected to decline within the upper Tennessee River drainage due to 
reductions in forest cover, increased urbanization and agricultural 
activities, and a climate trend that tracks RCP 8.5. Combined with 
reduced conservation efforts, these factors will have a negative effect 
on population resiliency, with projected extirpations of the Clinch 
River, North Fork Holston River, Middle Fork Holston River, and 
Sequatchie River populations. Loss of these populations would reduce 
redundancy and representation, with overall species' redundancy and 
representation remaining at low levels.

          Table 2--Future Condition of the Sickle Darter by the Year 2070 Under Three Future Scenarios
----------------------------------------------------------------------------------------------------------------
                                                          Scenario 1:         Scenario 2:         Scenario 3:
  Analytical unit (population)     Current condition     current trend      improving trend     worsening trend
----------------------------------------------------------------------------------------------------------------
Emory River.....................  Moderate..........  Moderate..........  Moderate..........  Low.
Clinch River....................  Low...............  Likely Extirpated.  Low...............  Likely Extirpated.
Powell River....................  Extirpated........  Likely Extirpated.  Low *.............  Likely Extirpated.
Little River....................  Moderate..........  Low...............  Moderate..........  Low.
French Broad River..............  Extirpated........  Likely Extirpated.  Low *.............  Likely Extirpated.
Middle Fork Holston River.......  Low...............  Likely Extirpated.  Low...............  Likely Extirpated.
North Fork Holston River........  Low...............  Likely Extirpated.  Low...............  Likely Extirpated.
South Fork Holston River........  Extirpated........  Likely Extirpated.  Likely Extirpated.  Likely Extirpated.
Sequatchie River................  Low...............  Low...............  Low...............  Likely Extirpated.
Watauga.........................  Extirpated........  Likely Extirpated.  Likely Extirpated.  Likely Extirpated.
----------------------------------------------------------------------------------------------------------------
* Scenario 2 anticipates successful reintroduction or rediscovery of the species in two river systems.


[[Page 67386]]

Conservation Efforts and Regulatory Mechanisms

    The sickle darter is listed as threatened by Tennessee (Tennessee 
Wildlife Resources Commission (TWRC) 2016, p. 3) and Virginia (Virginia 
Department of Game and Inland Fisheries (VDGIF) 2018, p. 1), making it 
unlawful to take the species or damage its habitat without a State 
permit. Additionally, the sickle darter is identified as a species of 
greatest conservation need in the Tennessee and Virginia Wildlife 
Action Plans, which outline actions to promote species conservation. A 
propagation effort for the sickle darter was initiated in 2015, 
producing 25 juveniles that were released to the wild. The status of 
the released fish is unknown, but the effort demonstrates that 
propagation may be a useful conservation tool to augment sickle darter 
populations or reintroduce the species to historical localities in the 
future.
    The sickle darter and its habitats are afforded some protection 
from water quality and habitat degradation under the Clean Water Act, 
the Surface Mining Control and Reclamation Act, Tennessee's Nongame and 
Endangered or Threatened Wildlife Species Conservation Act of 1974 
(Tennessee Code Annotated (T.C.A.), section 70-8-101 et seq.), 
Tennessee's Water Quality Control Act of 1977 (T.C.A., section 69-3-101 
et seq.), Virginia's State Water Control Act (Virginia Code, section 
62.1-44.2 et seq.), and additional Tennessee and Virginia statutes and 
regulations regarding natural resources and environmental protection. 
While it is clear that the protections afforded by these statutes and 
regulations have not prevented the degradation of some habitats used by 
the sickle darter, the species has undoubtedly benefited from 
improvements in water quality and habitat conditions stemming from 
these regulatory mechanisms.

Summary of Comments and Recommendations

    In the proposed rule published on November 12, 2020 (85 FR 71859), 
we requested that all interested parties submit written comments on the 
proposal. We also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposal. Newspaper notices inviting 
general public comment were published in the Asheville Citizen-Times on 
November 18, 2020, and in the Knoxville Daily Sun on November 22, 2020. 
We did not receive any requests for a public hearing. All substantive 
information provided during the comment period has either been 
incorporated directly into this final determination or is addressed 
below.

Peer Reviewer Comments

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought peer review of the SSA report. 
We sent the sickle darter SSA report to five independent peer 
reviewers; all peer reviewers had expertise that included familiarity 
with sickle darter and its habitats, biological needs, and threats. We 
received responses from four peer reviewers for the sickle darter SSA 
report.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the information 
contained in the SSA report. The peer reviewers generally concurred 
with our methods and conclusions, and provided additional information, 
clarifications, and suggestions to improve the final SSA report. Peer 
reviewer comments are addressed in the following summary and were 
incorporated into the SSA report as appropriate.
    (1) Comment: One peer reviewer noted that a recent study of the 
frecklebelly darter (Percina stictogaster), an ecologically and 
morphologically similar species to the sickle darter, documented 
frequent upstream and downstream movements, and the reviewer 
hypothesized a relationship to the pelagic nature of the frecklebelly 
darter. The reviewer postulated this information supports the 
relatively ``migratory'' nature of the sickle darter.
    Our Response: We reviewed the information provided by the reviewer 
and included the information in the SSA report. Specifically, we 
recognize the similarities of the sickle darter with congeneric 
species, including the frecklebelly darter, and describe the behavior 
of the sickle darter and frecklebelly darter as pelagic (i.e., 
inhabiting the water column) in the SSA report (Service 2020a, pp. 12-
13). We also describe the potential for similar upstream and downstream 
movements of the two species in the SSA report under Reproduction and 
Life History (Service 2020a, pp. 12-13). We note that the pelagic 
behavior of sickle darter juveniles and adults supports the hypothesis 
that sickle darters have some ability to disperse and/or move within a 
stream system. Additionally, we describe the movement behavior of the 
longhead darter (Percina macrocephala) and frecklebelly darter in 
chapter 2 of the SSA report.
    (2) Comment: One peer reviewer noted that survey sampling 
methodology may vary, and population estimates should note if all 
habitat types were sampled or only the run habitat likely to harbor 
sickle darter.
    Our Response: Darter survey methodologies can vary in site 
selection, study design, equipment or gear used, or other factors. For 
the SSA report, we used population estimates based on snorkeling survey 
data (total abundance of sickle darters in each reach) collected at 
several survey reaches in each system (Alford 2019, pp. 24-33). Reaches 
were selected based on historical occurrence records and additional 
river reaches that included pool and riffle-run macrohabitat in the 
Emory, Little, Sequatchie, and Middle Fork Holston rivers and Little 
Rock Creek. This study employed multiple sampling methods including 
backpack or boat electrofishing and seines followed by snorkeling. 
Surveyors searched all habitat (entire channel width) in the selected 
river reach.
    Our population estimates in the SSA report for the Emory River and 
Little River populations were based on an approach to estimate 
population size for the congeneric longhead darter, a species with 
similar life-history and biological needs in Kinniconick Creek, 
Kentucky (Eisenhour et al. 2011, p. 15). Based on the methodology in 
the longhead darter study, we expected that 20 to 50 percent of sickle 
darters were observed in each survey reach, and we extrapolated from 
the total survey reach length to the occupied reach length in each 
system to arrive at our population estimates. Population estimates were 
not calculated for other systems due to the low abundance in those 
systems (fewer than 10 individuals observed since 2005). We revised the 
SSA report to more clearly explain the population estimate process and 
the survey methodology (Service 2020a, p. 67).

Public Comments

    During the comment period, we received 22 public comments on the 
proposed rule. A majority of the comments supported the listing 
determination, none opposed the determination, and some included 
suggestions on how we could refine or improve the 4(d) rule for the 
sickle darter. All substantive information provided to us during the 
comment period has been incorporated directly into this final rule or 
is addressed below.
    (3) Comment: One commenter stated that the sickle darter should be 
listed as

[[Page 67387]]

endangered because of the threat of climate change.
    Our Response: As described in Determination of Sickle Darter 
Status, below, we considered whether the sickle darter is presently in 
danger of extinction throughout all or a significant portion of its 
range and determined that the species does warrant listing as an 
endangered species in all or a significant portion of its range. The 
current conditions as assessed in the SSA report show that the species 
occurs in six different populations (river systems) over a majority (67 
percent) of the species' historical range. The sickle darter currently 
exhibits representation across two of the three historical 
physiographic regions, and extant populations remain across the range. 
In addition, the best available science does not indicate that climate 
change is currently affecting status of the sickle darter. Our analysis 
reveals that climate change is a factor that is likely to affect the 
status of the sickle darter in the foreseeable future, which is 
consistent with our determination of threatened status for the species. 
In short, while the primary threats are currently acting on the species 
and many of those threats, as well as climate change, are expected to 
impact the species' viability in the future, we did not find that the 
species is currently in danger of extinction throughout all or a 
significant portion of its range.
    (4) Comment: Another commenter requested the Service provide 
additional information regarding the impact of climate change on the 
sickle darter and the expected time those impacts will be experienced 
by the species.
    Our Response: In the SSA report, we describe the expected impacts 
of climate change on the sickle darter (Service 2020a, pp. 27-28). 
Briefly, increases in water temperatures and higher flows during the 
spawning period and an increase in the frequency, duration, and 
intensity of droughts are expected to negatively affect the resiliency 
and viability of the sickle darter, although the best available science 
does not provide insight regarding the extent and timing of those 
effects. We based our analysis of future condition on projections from 
available models for urbanization, land use, and climate change, 
threats that are projected to affect the viability of the species (see 
85 FR 71859, November 12, 2020, at pp. 71866-71867). For the SSA, we 
developed three plausible future scenarios that included varying levels 
of climate change impacts. Based on these projections, we determined 
the species will be impacted by the effects of climate change within 
the next 50 years.
    (5) Comment: We received several comments stating that the proposed 
4(d) rule's language referring to ``highest-standard best management 
practices'' was too vague or confusing. The commenters recommended 
removing the phrase ``highest-standard best management practices'' from 
the exception for incidental take associated with certain activities. 
They suggested replacing it with language referring to existing State 
BMPs that are based on the best available scientific and commercial 
information where species occur in similar habitats and have similar 
life-history and are affected by similar threats.
    Our Response: In the proposed rule, rather than specifying a 
particular set of best management practices currently in existence, we 
used ``highest-standard best management practices'' to refer to the 
most stringent ones available at the time of project implementation. 
Our intent was for this language to encompass changes made to BMPs as 
new information became available.
    We carefully considered the issues raised by the commenters and 
addressed them by revising the 4(d) rule to specify the habitat 
management goals necessary to provide for the breeding, feeding, and 
sheltering needs of the sickle darter, rather than prescribing a 
particular management practice (e.g., specified streamside management 
zone widths, logging road grade, timing of water bar installation, 
etc.) with which to achieve necessary habitat protection. In doing so, 
we revised the phrase ``highest-standard best management practices'' in 
the 4(d) rule (see III. Final Rule Issued Under Section 4(d) of the Act 
for the Sickle Darter, below, for more information). To clarify the 
terminology, we removed the term ``highest-standard'' from 4(d) rule 
and now refer to these practices (the most stringent ones currently 
available) as ``State-approved'' best management practices, which we 
intend to encompass changes made to BMPs as new information becomes 
available and informs those practices. We also added language to the 
exception to specify the factors that the BMPs must address for those 
BMPs to qualify under this exception. Accordingly, while the language 
of the exception has changed, our intent in the scope of this exception 
has not.
    (6) Comment: Several commenters highlighted language in published 
proposed and final listing, 4(d), and critical habitat rules for other 
aquatic species that describe the BMPs the Service has referred to in 
those rules. They asked us to consider incorporating similar 
standardized language in the 4(d) rule for the sickle darter and other 
species as appropriate. The commenters suggested the Service use 
similar language for species with comparable needs when existing State-
approved forestry BMPs are sufficient for protection of a species 
(i.e., these BMPs appear as an exception to the incidental take 
prohibition) in a 4(d) rule. They indicated this language should apply 
to the 4(d) rule for sickle darter.
    Our Response: A 4(d) rule for a threatened species is intended to 
establish species-specific regulations to provide for the conservation 
of the species. Where appropriate, they may also incentivize beneficial 
actions for the species and reduce the regulatory burden on forms of 
take that are compatible with the conservation of the species. The 
species-specific nature of 4(d) rules indicates that they do not set an 
example, template, or precedent for other species; however, it may be 
practical to consider how 4(d) rules are implemented for species that 
may be similar or have overlapping geographic ranges and habitat needs. 
Our regulations at 50 CFR 17.31(c) state that the species-specific 4(d) 
rule will contain all the applicable prohibitions and exceptions for 
the protection of the species.
    Standardizing language across 4(d) rules, when appropriate, can be 
helpful for public understanding and implementation. We have revised 
the language pertaining to silvicultural and forest management BMPs in 
the 4(d) rule for the sickle darter to be consistent with other 4(d) 
rules published in the Federal Register that include the same 
provisions (see Provisions of the 4(d) Rule, below) for species with 
similar life-history requirements, habitat requirements, and threats. 
However, 4(d) rules are species-specific, and language applicable to 
one species may not be applicable to another, so standardized language 
can only be applied when it is appropriate to a given species. Several 
of the comments referenced language in listing, 4(d), and critical 
habitat rules for other aquatic species that have life-history 
characteristics requirements, threats, and habitat condition needs that 
differ from those of the sickle darter. Due to these differences, we 
have carefully reviewed the language the commenters describe, and have 
developed the species-specific 4(d) rule for the sickle darter based on 
what is necessary and advisable to provide for the conservation this 
particular species.
    Additionally, the species-specific nature of 4(d) rules is 
inherently resistant to standardization, because the Service must 
consider the needs of the species being listed as threatened and

[[Page 67388]]

issue regulations deemed necessary and advisable to provide for the 
conservation of that species. The 4(d) rule for the sickle darter does 
not prescribe management restrictions; rather, it outlines prohibitions 
(e.g., take) to ensure the species and its habitat are not adversely 
affected, and exceptions to those prohibitions for incidental take 
resulting from activities that are not expected to adversely affect the 
species and that may provide conservation benefits. The 4(d) rule's 
exceptions provide specific information on the conditions required for 
actions excepted from incidental take; they do not prohibit other forms 
of silvicultural or forestry management activities. Those activities 
not falling within the stated exceptions simply would require 
consultation with the Service under section 7, or a conservation 
agreement under section 10, of the Act. The 4(d) rule's exceptions, 
including the conditions necessary to meet those exceptions, are 
intended to provide some relief from regulatory burden, while avoiding 
adverse impacts to the species and adverse modification of the species' 
habitat.
    (7) Comment: Four commenters stated that State BMPs are sufficient 
for the protection of the sickle darter year-round because BMP 
implementation rates are high for silviculture and forestry management 
activities in North Carolina, Tennessee, and Virginia. Some commenters 
also stated their views that assessments of water quality using aquatic 
insects (benthic macroinvertebrates) as indicators confirm that BMPs 
are protective of water quality and habitat for aquatic species; 
therefore, BMPs are sufficient for protecting the sickle darter as 
well. The commenters requested we provide an exception for incidental 
take for all State-approved BMPs and asked that we do not exclude from 
that exception forestry practices during the spawning period that 
adhere to the BMPs from this exception in the 4(d) rule.
    Response: As discussed above under Summary of Biological Status and 
Threats, sediment is one of the most frequently cited water quality 
concerns and is one of the top causes of river and stream impairment in 
the United States. Sedimentation is one of the primary stressors to the 
sickle darter and one of the primary stressors of streams in the upper 
Tennessee River drainage (Service 2020a, chapter 3). However, we agree 
with commenters that when used and properly implemented, BMPs can offer 
a substantial improvement to water quality through reduced 
sedimentation, siltation, runoff, and erosion compared to forestry 
operations where BMPs are not properly implemented. We recognize that 
silvicultural operations and forestry activities are widely implemented 
in accordance with State-approved BMPs (as reviewed by Cristan et al. 
2018, entire), and the adherence to these BMPs broadly protects water 
quality, particularly related to sedimentation (as reviewed by Cristan 
et al. 2016; Warrington et al. 2017, entire; and Schilling et al. 2021, 
entire). While we note that forest management is not completely risk-
free for wildlife or water quality, we understand that the development 
and refinement of BMPs have resulted in substantial improvements to 
forestry's impacts on water quality in recent decades and have created 
a culture of water stewardship in the forest landowner community, 
making this stakeholder group an important ally in the conservation of 
imperiled species. In consideration of the comments received, we 
determined that the reduced risks to water quality resulting from 
adherence to State-approved BMPs justify the Service's inclusion of an 
exception for incidental take associated with these forestry BMPs in 
the 4(d) rule for the sickle darter.
    Much of the literature shared by commenters on the effectiveness of 
BMPs for protecting aquatic species and their habitats relies on 
aquatic macroinvertebrate assessments, mostly of aquatic insects. While 
aquatic insects are a commonly used in rapid field assessments for 
monitoring or measuring water quality, there is a gap in the best 
available science about how that such results relate to vertebrates, 
such as fish (e.g., sickle darter). Most aquatic insects are not rare 
species, and immigration by aquatic insects back into an affected 
stream reach may be facilitated by downstream drift or other 
mechanisms, including the adult winged flight stage, which allows 
immigration from other nearby waterbodies or from downstream reaches. 
Although we have concerns about the applicability of aquatic 
macroinvertebrate assessment in our analysis, in the absence of more 
precise measures, we incorporated aquatic insect community and other 
water quality measures in determining the protective effects of 
implemented BMPs on the sickle darter and its habitat.
    In this final rule, we have revised the 4(d) rule to except 
incidental take resulting from silvicultural practices and forest 
management activities that implement State-approved BMPs, for the 
entire year, including the spawning period. When considering this 
revision, in addition to assessing the effectiveness of silviculture 
BMPs, we noted the life-history characteristics of the species, 
including that sickle darters inhabit larger upland streams and small 
to medium rivers in Tennessee and Virginia. The effects of 
sedimentation and siltation, while detrimental to aquatic organisms 
including the sickle darter, are expected to be somewhat reduced in 
those larger streams and small to medium rivers when compared to their 
effects on small headwater streams with the same sediment input 
(Johansen 2021, pers. comm.). On a landscape scale in the range of the 
species, we expect many silvicultural and forest management activities 
will occur outside the riparian area adjacent to occupied reaches of 
sickle darter habitat. The long, occupied reaches of sickle darter 
habitat provide space for individual fish to disperse from areas of 
temporarily unsuitable conditions to suitable habitat. Although some 
sedimentation may occur as a result of forestry activities, we have 
determined that the overall outcome of the excepted silviculture and 
forestry activities is necessary and advisable to provide for the 
conservation of the species. Therefore, as we state above, this final 
4(d) rule excepts incidental take resulting from silvicultural 
practices and forest management activities that implement State-
approved BMPs, for the entire year, including the spawning period.
    (8) Comment: Several commenters referenced the exception of 
silvicultural practices under section 404 of the Clean Water Act as 
long as 15 baseline conditions are met, including the required 
protection of threatened and endangered species and critical habitat 
(see 33 CFR 323.4(a)(6)(i)-(xv)). Similarly, one commenter noted that 
the Environmental Protection Agency (EPA) does not regulate stormwater 
discharges from forest roads under section 402(p)(6) of the Clean Water 
Act, in part due to existing State, Federal, regional, and private 
sector programs that address water quality issues caused by discharges 
from forest roads (see 81 FR 43492; July 5, 2016). Commenters concluded 
that existing silvicultural BMPs developed to meet the conditions of 
the Clean Water Act exemptions are sufficient to protect the sickle 
darter throughout the year, including during the February and March 
spawning period when the proposed exception to the incidental take 
prohibition would not apply. Commenters requested that we revise the 
final rule to include an exception to incidental take prohibitions for 
silviculture and forest management activities for the entire year.

[[Page 67389]]

    Our Response: Under section 404(f)(1) of the Clean Water Act (CWA) 
and its implementing regulations at 33 CFR 323.4(a)(1), established 
(ongoing) farming, ranching, and silvicultural activities such as 
plowing, seeding, cultivating, minor drainage, harvesting for the 
production of food, fiber, and forest products, or upland soil and 
water conservation practices are not prohibited by or otherwise subject 
to regulation under section 404 of the CWA. Silvicultural activities 
that represent a new use of water or that would result in reach or 
impairment flow or circulation of waters of the United States would not 
qualify for this exemption. This exemption also does not apply to any 
activity within a navigable water of the United States for which a 
permit is required under section 10 of the Rivers and Harbors Act of 
1899 (33 U.S.C. 403). In addition, BMPs related to road construction or 
maintenance must be met to meet the exemption criteria under section 
404(f)(1) of the CWA (see 33 CFR 323.4(a)(6)). These BMPs are intended 
to assure the flow and circulation patterns and chemical and biological 
characteristics of waters of the United States are not impaired. The 
provision of 33 CFR 323.4(a)(6)(ix) noted in the comments states that 
the discharge shall not take, or jeopardize the continued existence of, 
a threatened or endangered species as defined under the Endangered 
Species Act, or adversely modify or destroy the critical habitat of 
such species.
    In the 2016 decision not to regulate forest road discharges under 
the CWA (see 81 FR 43492; July 5, 2016), the EPA recognized that 
discharges from forest roads have significant impacts on water quality 
in many parts of the country; however, the agency concluded the most 
effective way to make further progress in addressing these issues was 
to support existing programs. The EPA also noted that some programs 
will necessarily be more rigorous than others and the variability was 
considered, but EPA determined the challenges of implementation 
outweighed the benefits of nationwide consistency.
    The sickle darter and its habitats are afforded some protection 
from water quality and habitat degradation under the CWA, the Surface 
Mining Control and Reclamation Act, Tennessee's Nongame and Endangered 
or Threatened Wildlife Species Conservation Act of 1974, Tennessee's 
Water Quality Control Act of 1977, Virginia's State Water Control Act, 
and additional Tennessee and Virginia statutes and regulations 
regarding natural resources and environmental protection. While it is 
clear that the protections afforded by these statutes and regulations 
have not prevented the degradation of some habitats used by the sickle 
darter, sickle darter spawning has not been precluded by the changes in 
habitat condition. In addition, the species has undoubtedly benefited 
from improvements in water quality and habitat conditions stemming from 
these regulatory mechanisms. We recognize the water quality and habitat 
protections afforded the sickle darter through the CWA and also note 
the implementation of BMPs (see our response to (7) Comment). These 
measures offer protection of water quality in sickle darter habitat 
throughout the year and these protections are adequate during the 
spawning period as well. We have revised the 4(d) rule to except 
incidental take resulting from silvicultural practices and forest 
management activities that implement State-approved BMPs, for the 
entire year, including the spawning period.
    (9) Comment: Two commenters expressed concern that the spawning 
period exclusion in the exception from incidental take for 
silvicultural practices and forest management activities in the 
proposed 4(d) rule for sickle darter would act as a moratorium, and 
that this would set a precedent in limiting a landowner's financial 
interest in lands in silviculture and forestry management. One 
commenter asked about areas where the 4(d) rule would apply, including 
questions about States or river basins where the species is extirpated, 
critical habitat, and analytical units (used to assess populations in 
the SSA). The commenter also requested information about how a 
landowner could determine if their property contains or is adjacent to 
sickle darter spawning habitat and another requested information about 
specific forest management practices that would fall under the 4(d) 
rule.
    Response: As discussed above in our responses to (7) Comment and 
(8) Comment, we have revised the 4(d) rule to except incidental take 
resulting from silvicultural practices and forest management activities 
that implement State-approved BMPs, for the entire year, including 
during the spawning period. Therefore, a number of concerns regarding 
the 4(d) rule presented by commenters are no longer applicable. 
However, the comments and questions presented here indicate that there 
may be some misunderstanding about the function and purpose of the 4(d) 
rule, the exceptions to the Act's section 9 take prohibitions, the 
definitions of analytical units and critical habitat, and how a 
landowner can determine the presence of endangered or threatened 
species on or near their property. Therefore, although some of the 
commenters' concerns have been already addressed, we offer 
clarification and explanation below to address the other issues and 
questions raised.
    The proposed 4(d) rule did not establish a moratorium on forestry 
management and silviculture activities. Section 4(d) of the Act directs 
the Service to issue regulations deemed necessary and advisable to 
provide for the conservation of threatened species. It allows the 
Service to promulgate species-specific rules for species listed as 
threatened (not endangered) that provide flexibility in implementing 
the Act. We use 4(d) rules to, among other things, extend take 
prohibitions where it is necessary to conserve the species. This 
targeted approach can allow take associated with some activities that 
do not substantially harm the species, while focusing our efforts on 
the take associated with those activities that threaten the species and 
that make a difference to the species' recovery. Activities that may 
involve take of a threatened species where the take is not excepted 
from the Act's section 9 take prohibitions by a 4(d) rule can still 
occur as long as there is consultation with the Service under section 7 
of the Act or a permit is issued under section 10 of the Act. 
Accordingly, not excepting take associated with a certain activity in a 
4(d) rule does not constitute a moratorium on that activity.
    On and following the effective date of this rule (see DATES, 
above), the 4(d) rule applies to the listed species wherever it is 
found. Accordingly, the current range of the species is described in 
the SSA report (Service 2020a, pp. 16-19), the proposed rule (85 FR 
71859; November 12, 2020), and this final rule. However, range 
information changes over time. Therefore, information regarding the 
sickle darter, including range information, may be found on the species 
profile page in the Service's Environmental Conservation Online System 
(ECOS) at https://ecos.fws.gov/ecp/species/9866. In addition, a 
landowner or project proponent can use the Service's Information for 
Planning and Consultation (IPaC) online system (https://ecos.fws.gov/ipac/) to assist in project planning within the range of the sickle 
darter or contact their local Ecological Services Field Office for more 
information and assistance.
    Analytical units were delineated and described in the SSA report 
for the purpose of analyzing the resiliency of sickle darter 
populations and the viability of the species. These units do not have a 
regulatory function. In

[[Page 67390]]

addition, this rule does not propose or designate critical habitat. We 
have determined that designation of critical habitat is prudent, but 
not determinable because we lacked specific information on the impacts 
of our designation (85 FR 71864). A careful assessment of the economic 
impacts that may occur due to a critical habitat designation is still 
ongoing, and we are in the process of working with States and other 
partners in acquiring the complex information needed to perform that 
assessment. A proposed rule to designate critical habitat will be 
published once we have the required information.
    We understand that there may be confusion and concern about the 
effect of this listing and 4(d) rule and future critical habitat 
designation for the sickle darter. We encourage any landowners with an 
endangered or threatened species present on their properties and who 
think they carry out activities that may negatively impact that 
endangered or threatened species to work with the Service (see FOR 
FURTHER INFORMATION CONTACT). We can help those landowners determine 
whether a habitat conservation plan (HCP) or safe harbor agreement 
(SHA) may be appropriate for their needs. These plans or agreements 
provide for the conservation of the endangered or threatened species 
while providing the landowner with a permit for incidental take of the 
species during the course of otherwise lawful activities.
    We have found that restrictions alone are neither an effective nor 
a desirable means for achieving the conservation of endangered and 
threatened species. We prefer to work collaboratively with private 
landowners, and strongly encourage individuals with listed species on 
their property to work with us to develop incentive-based measures such 
as SHAs or HCPs, which have the potential to provide conservation 
measures that effect positive results for the species and its habitat 
while providing regulatory relief for landowners. The conservation and 
recovery of endangered and threatened species, and the ecosystems upon 
which they depend, is the ultimate objective of the Act, and the 
Service recognizes the vital importance of voluntary, nonregulatory 
conservation measures that provide incentives for landowners in 
achieving that objective. In addition, as discussed under Provisions of 
the 4(d) Rule, below, we may issue permits to carry out otherwise 
prohibited activities involving threatened wildlife under certain 
circumstances, including economic hardship. Regulations governing 
permits are codified at 50 CFR 17.32.

Determination of Sickle Darter Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

Status Throughout All of Its Range

    The current conditions as assessed in the sickle darter SSA report 
show that the species exists in six populations, in six tributary 
systems within two ecoregions. Two populations, Little River and Emory 
River, have moderate resiliency, and four populations have low 
resiliency. Although there are six separate populations distributed 
within the upper Tennessee River drainage, redundancy is low because 
four populations have low resiliency. Representation is currently low 
because genetic variation has likely been reduced over time as 
populations became disconnected, isolated, and reduced in size. 
Further, representation has been diminished with the loss of the 
species from the Blue Ridge ecoregion. However, it is unlikely that the 
sickle darter is in danger of extinction from a near-term catastrophic 
event. The species' occurrence in separate rivers of two populations, 
which are both in moderate condition and regularly recruiting new age 
classes (generations), greatly diminishes the possibility that such an 
event would simultaneously cause extirpation of the two populations, 
nor is it likely that such an event would simultaneously have the same 
level of impact on the other four populations in low condition.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we conclude that the risk factors acting on the sickle darter 
and its habitat, either singly or in combination, are not of sufficient 
imminence, intensity, or magnitude to indicate that the species is in 
danger of extinction now (an endangered species) throughout all of its 
range. Current and ongoing threats to the sickle darter include habitat 
loss or degradation stemming from hydrologic alteration by 
impoundments, including dams and other barriers; land development that 
does not incorporate best management practices (BMPs); and diminished 
water quality from point and non-point source pollution and siltation 
(Factor A). Neither overutilization, disease or predation appear to be 
a significant threat to the sickle darter. Habitat-related threats 
contribute to the negative effects associated with the species' reduced 
range and potential effects of climate change (Factor E). Although the 
species is State-listed throughout its current range, this protection 
and the existing regulatory mechanisms are not adequate to address the 
threats of habitat modification and climate change such that the 
species does not warrant listing.
    Our analysis of the sickle darter's future conditions shows that 
the population and habitat factors used to determine resiliency, 
representation, and redundancy will continue to decline. The primary 
threats are currently acting on the species and are likely to continue 
into the future. We selected 50 years as the foreseeable future to 
assess the sickle darter's future condition because this timeframe 
includes projections from available models for urbanization, land use, 
and climate change, threats which will affect the status of the species 
over that timeframe. We selected this timeframe because over this 
period we can reliably predict both the threats to the species as well 
as the species' response to those threats.
    The range of plausible future scenarios of the sickle darter's 
habitat conditions and water quality factors portend reduced viability 
into the future. Under the current trend scenario, resiliency is 
moderate in one population and low in two populations, and three 
populations are likely extirpated so that redundancy and representation 
are reduced. Under the worsening trend scenario, resiliency is low in 
two populations, and four populations are likely extirpated so that 
redundancy and representation are substantially reduced. This expected 
reduction in both the number and distribution of resilient populations 
is likely to make the species vulnerable to catastrophic disturbance. 
Thus, after assessing the best available information, we conclude

[[Page 67391]]

that the sickle darter is not currently in danger of extinction but is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July 
1, 2014) that provided that the Service does not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluate whether the species is endangered in any 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for the sickle darter, we choose to address 
the status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify any portions of the range where the species 
is endangered.
    For the sickle darter, we considered the species viability in 
various portions, including whether threats are geographically 
concentrated in any portion of the species' range at a biologically 
meaningful scale, which may indicate a portion is likely to have a 
different status. We examined the following current threats in the 
context of the species' viability: Habitat loss and degradation through 
siltation; water quality degradation; and impoundments, their effects, 
and the associated effects of the species' reduced range. We also 
examined the cumulative effects of these threats. Our analysis revealed 
that these threats are likely to continue into the foreseeable future, 
or approximately 50 years. Siltation and water quality degradation 
resulting from nutrients, pathogens, municipal and residential 
development, agriculture, and logging are present in all watersheds 
where the sickle darter occurs. Land use changes associated with 
extraction of energy resources (coal, oil, and gas) are restricted to 
the Clinch (including Emory River) and Powell River systems, but the 
stressors associated with these activities, including sedimentation and 
water quality degradation, also come from sources (e.g., urbanization, 
grazing, logging) that are common to all watersheds where the species 
occurs. Isolation as a result of habitat fragmentation affects all 
sickle darter populations similarly, and all populations experience the 
effects of changing climate conditions similarly. Additionally, 
resiliency of the remaining populations would decline, as our 
continuing trends and worsening trends future scenarios respectively 
project three or four of the six extant populations will become 
extirpated. The Little River watershed has the highest amount of land 
affected by urbanization (development) currently, and that is projected 
to continue in the future (Service 2020a, pp. 86-87). However, current 
land use and future rates of land use change are not substantially 
different among the watersheds occupied by the six populations.
    The populations in the North Fork Holston, Middle Fork Holston, 
Clinch, and Sequatchie rivers exhibit low current resiliency, and the 
cumulative effects of the other identified threats may impact those 
populations to a greater extent than more resilient populations. 
However, although the species occurs in a reduced area in these rivers 
from its historical condition and the Middle Fork Holston, Clinch, and 
Sequatchie rivers occupy a limited stream length, none of the four 
populations has physical habitat and water quality in low condition, 
and the habitat conditions in those areas are such that the sickle 
darter's requirements are presently being met.
    Overall, the current threats are acting on the species and its 
habitat similarly across its range. After assessing the best available 
information, we found no portions of the species' range where the 
species is likely to have a different status from its rangewide status. 
Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy, including the definition of ``significant'' that those court 
decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the sickle darter meets the definition of a 
threatened species. Therefore, we are listing the sickle darter as a 
threatened species in accordance with sections 3(20) and 4(a)(1) of the 
Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.

[[Page 67392]]

    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies recovery 
criteria for review of when a species may be ready for reclassification 
from endangered to threatened (``downlisting'') or removal from 
protected status (``delisting''), and methods for monitoring recovery 
progress. Recovery plans also establish a framework for agencies to 
coordinate their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our website (https://ecos.fws.gov/ecp/species/9866, or from our Tennessee Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their ranges may occur primarily or solely on 
non-Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, North Carolina, Tennessee, and 
Virginia will be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the sickle darter. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the sickle darter. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph may include, but are not limited to, management and any other 
landscape-altering activities on Federal lands administered, or on 
private lands seeking funding, by Federal agencies, which may include, 
but are not limited to, the Tennessee Valley Authority, U.S. Department 
of Agriculture (USDA) U.S. Forest Service, USDA Farm Service Agency, 
USDA Natural Resources Conservation Service, and Federal Emergency 
Management Agency; issuance of section 404 Clean Water Act (33 U.S.C. 
1251 et seq.) permits by the U.S. Army Corps of Engineers; and 
construction and maintenance of roads or highways by the Federal 
Highway Administration.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of a listed species. 
The discussion below regarding protective regulations under section 
4(d) of the Act complies with our policy.

II. Critical Habitat

Prudency Determination

    As described in the proposed listing rule, we have determined that 
designation of critical habitat for the sickle darter is prudent, but 
not determinable at this time (85 FR 71869-71870). There is currently 
no imminent threat of collection or vandalism identified under Factor B 
for this species, and identification and mapping of critical habitat is 
not expected to initiate any such threat. In our SSA report and 
proposed listing determination for the sickle darter, we determined 
that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to the sickle darter and 
that those threats in some way can be addressed by the Act's section 
7(a)(2) consultation measures. The species occurs wholly within the 
jurisdiction of the United States, and we are able to identify areas 
that meet the definition of critical habitat. Therefore, because none 
of the circumstances enumerated in our regulations at 50 CFR 
424.12(a)(1) have been met and because there are no other circumstances 
the Secretary has identified for which this designation of critical 
habitat would be not prudent, we have determined that the designation 
of critical habitat is prudent for the sickle darter.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the sickle 
darter is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    For the sickle darter, the species' needs are sufficiently well 
known, but a careful assessment of the economic impacts that may occur 
due to a critical habitat designation is ongoing. Until these efforts 
are complete, information sufficient to perform a required analysis of 
the impacts of the designation is lacking, and, therefore, we find 
designation of critical habitat for the sickle darter to be not 
determinable at this time. In the future, we plan to

[[Page 67393]]

publish a proposed rule to designate critical habitat for the sickle 
darter concurrent with the availability of a draft economic analysis of 
the proposed designation.

III. Final Rule Issued Under Section 4(d) of the Act for the Sickle 
Darter

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean 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. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising our authority under section 4(d) of the Act, we have 
developed a rule that is designed to address the sickle darter's 
specific threats and conservation needs. Although the statute does not 
require the Service to make a ``necessary and advisable'' finding with 
respect to the adoption of specific prohibitions under section 9, we 
find that this rule as a whole satisfies the requirement in section 
4(d) of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the sickle darter. As discussed above 
under Summary of Biological Status and Threats, we have concluded that 
the sickle darter is likely to become in danger of extinction within 
the foreseeable future primarily due to habitat degradation or loss 
stemming from hydrologic alterations by impoundments, including dams 
and other barriers; land development that does not incorporate BMPs; 
and diminished water quality from point and nonpoint source pollution 
and siltation. These threats contribute to the negative effects 
associated with the species' reduced range and the potential effects of 
climate change. The provisions of this 4(d) rule will promote 
conservation of the sickle darter by encouraging management of the 
landscape in ways that meet both watershed and riparian management 
considerations and the species' conservation needs. The provisions of 
this rule are one of many tools that the Service will use to promote 
the conservation of the sickle darter.
    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.
    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, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of the sickle 
darter by extending to the species the following prohibitions and 
provisions of section 9(a)(1) of the Act, except as otherwise 
authorized or permitted: Import or export; take; possession and other 
acts with unlawfully taken specimens; delivery, receipt, transport, or 
shipment in interstate or foreign commerce in the course of commercial 
activity; or sale or offer for sale in interstate or foreign commerce.
    Threats to the species are noted above and described in detail 
under Summary of Biological Status and Threats. The most significant 
threat expected to affect the species in the foreseeable future is loss 
and fragmentation of habitat from siltation, water quality degradation, 
and impoundments. A range of activities have the potential to affect 
the sickle darter, including commercial activities, agriculture, 
resource extraction, and land development. Regulating take associated 
with these activities will help preserve the sickle darter's remaining 
populations, slow the rate of population decline, and decrease 
synergistic, negative effects from other stressors. Therefore, 
regulating take associated with activities that increase siltation, 
diminish water quality, alter stream flow, or reduce fish passage will 
help preserve and potentially provide for expansion of remaining 
populations and decrease synergistic, negative effects from other 
threats.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50

[[Page 67394]]

CFR 17.3. Take can result knowingly or otherwise, by direct and 
indirect impacts, intentionally or incidentally. Regulating intentional 
and incidental take will help preserve the species' remaining 
populations, slow their rate of decline, and decrease synergistic, 
negative effects from other threats. Protecting the sickle darter from 
direct forms of take, such as physical injury or killing, whether 
incidental or intentional, will help preserve and recover the species. 
Therefore, we prohibit intentional take of sickle darter, including, 
but not limited to, capturing, handling, trapping, collecting, or other 
activities. Also, as discussed above under Summary of Biological Status 
and Threats, habitat loss and degradation from stressors including 
impoundments, siltation, and water quality degradation are affecting 
the status of the sickle darter. Across the species' range, stream and 
water quality have been degraded physically by siltation; pollution and 
contaminants; stream channelization; removal of riparian vegetation; 
and impoundments due to development; agricultural practices; land 
conversion; forest activities not following BMPs; dams and barriers; 
and energy production and mining. Therefore, we prohibit incidental 
take of the sickle darter by destroying, altering, or degrading the 
habitat in any of the manners described above. Regulating incidental 
take associated with these activities will help preserve sickle darter 
populations, slow the rate of population decline, and decrease 
synergistic, negative effects from other stressors.
    During the proposed rule's public comment period, we received 
comments on the exception for incidental take resulting from 
silvicultural practices and forest management activities and the 
proposed exclusion from that exception for activities occurring during 
the spawning period (see Summary of Comments and Recommendations, 
above). State-approved BMPs, when properly implemented, protect water 
quality and help conserve aquatic species, including the sickle darter. 
Forest landowners who properly implement those BMPs are helping 
conserve the darter, and this 4(d) rule is an incentive for all 
landowners to properly implement them to avoid any take implications. 
Further, those forest landowners who are third-party-certified 
(attesting to the sustainable management of a working forest) to a 
credible forest management standard are providing audited certainty 
that BMP implementation is taking place across the landscape.
    To address any uncertainty regarding which silvicultural and forest 
management BMPs will satisfy this exception for incidental take 
resulting from silvicultural practices and forest management 
activities, our regulations specify the conditions that must be met. We 
revised our section 4(d) language to clarify that the BMPs must result 
in protection of the habitat features that provide for the breeding, 
feeding, sheltering, and dispersal needs of the sickle darter, which 
will provide for the conservation of the species. In waterbodies that 
support listed aquatic species, wider streamside management zones 
(SMZs) and modern BMPs are more effective at reducing sedimentation and 
maintaining lower water temperatures through shading (Fraser et al. 
2012, p. 652). Sickle darters require good water quality, including low 
turbidity and negligible siltation in slow-flowing pools and riffles 
with a clean stream bottom substrate with stands of water willow or 
woody debris piles (Service 2020a, p. 14). A lack of these features 
limits the sickle darter's population abundance, growth, and dispersal 
of individuals. Aquatic habitat and suitable water quality can be 
maintained even during logging operations when streamside vegetation is 
left intact (Virginia Department of Forestry (VDOF) 2011, p. 37). The 
exception for incidental take associated with these activities seeks to 
ensure these characteristics are maintained for the conservation of the 
sickle darter.
    Under this final 4(d) rule, all prohibitions and provisions of 
section 9(a)(1) of the Act apply to the sickle darter, except that 
incidental take resulting from the following actions will not be 
prohibited:
    (1) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) and that take place between April 1 and January 31. These 
projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; a reconnection of surface and 
groundwater systems, resulting in perennial flows in the channel; 
riffles and pools composed of existing soil, rock, and wood instead of 
large imported materials; low compaction of soils within adjacent 
riparian areas; and inclusion of riparian wetlands.
    (2) Bank stabilization projects that use bioengineering methods to 
replace pre-existing, bare, eroding stream banks with vegetated, stable 
stream banks, thereby reducing bank erosion and instream sedimentation 
and improving habitat conditions for the species and that take place 
between April 1 and January 31. Following these bioengineering methods, 
stream banks may be stabilized using native species live stakes (live, 
vegetative cuttings inserted or tamped into the ground in a manner that 
allows the stake to take root and grow), native species live fascines 
(live branch cuttings, usually willows, bound together into long, cigar 
shaped bundles), or native species brush layering (cuttings or branches 
of easily rooted tree species layered between successive lifts of soil 
fill). Native species vegetation includes woody and herbaceous species 
appropriate for the region and habitat conditions. These methods will 
not include the sole use of quarried rock (riprap) or the use of rock 
baskets or gabion structures.
    (3) Bridge and culvert replacement/removal projects or low head dam 
removal projects that remove migration barriers or generally allow for 
improved upstream and downstream movements of sickle darters while 
maintaining normal stream flows, preventing bed and bank erosion, and 
improving habitat conditions for the species and that take place 
between April 1 and January 31.
    (4) Transportation projects that provide for fish passage at stream 
crossings and that take place between April 1 and January 31.
    (5) Silvicultural practices and forest management activities that 
implement State-approved BMPs. In order for this exception to apply to 
forestry-related activities, these BMPs must achieve all of the 
following:
    (a) Establish a streamside management zone alongside the margins of 
each waterway.
    (b) Restrain visible sedimentation caused by the forestry-related 
activity from entering the waterway.
    (c) Maintain native groundcover within the streamside management 
zone of the waterway, and promptly re-establish native groundcover if 
disturbed.
    (d) Limit installation of vehicle or equipment crossings of the 
waterway to only where necessary for the forestry-related activity. 
Such crossings must:
     Have erosion and sedimentation control measures installed 
to divert surface runoff away and restrain visible sediment from 
entering the waterway;
     Allow for movement of aquatic organisms within the 
waterway; and
     Have native groundcover applied and maintained through 
completion of the forestry-related activity.
    (e) Prohibit the use of tracked or wheeled vehicles for 
reforestation site

[[Page 67395]]

preparation within the streamside management zone of the waterway.
    (f) Prohibit locating log decks, skid trails, new roads, and 
portable mill sites in the streamside management zone of the waterway.
    (g) Prohibit obstruction and impediment of the flow of water within 
the waterway that is caused by direct deposition of debris or soil by 
the forestry-related activity.
    (h) Maintain shade over the waterway similar to that observed prior 
to the forestry-related activity.
    (i) Prohibit discharge of any solid waste, petroleum, pesticide, 
fertilizer, or other chemical into the waterway.
    Habitat restoration actions excepted by the 4(d) rule may result in 
some minimal level of harm or temporary disturbance to the sickle 
darter. For example, a culvert replacement project would likely elevate 
suspended sediments for several hours and the darters would need to 
move out of the sediment plume to resume normal feeding behavior. 
Overall, habitat restoration activities and silvicultural activities 
that implement State-approved BMPs benefit the species by expanding 
suitable habitat and reducing within-population fragmentation, 
contributing to conservation and recovery, and are expected to have a 
net benefit. Across the species' range, instream habitats have been 
degraded physically by sedimentation and by direct channel disturbance. 
The activities in the 4(d) rule will correct some of these problems, 
creating more favorable habitat conditions for the species.
    This 4(d) rule also contains certain standard exceptions to the 
prohibitions. We may issue permits to carry out otherwise prohibited 
activities, including those described above, involving threatened 
wildlife under certain circumstances. Regulations governing permits are 
codified at 50 CFR 17.32. With regard to threatened wildlife, a permit 
may be issued for the following purposes: For scientific purposes, to 
enhance propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. The statute 
also contains certain exemptions from the prohibitions, which are found 
in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, candidate, and at-risk species of wildlife and plants. 
State agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve the sickle 
darter that may result in otherwise prohibited take without additional 
authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of the 
sickle darter. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between Federal agencies and the Service.

Required Determinations

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act in connection with listing species and 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 have identified no Tribal interests 
that will be affected by this rule.

References Cited

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

Authors

    The primary authors of this rule are the staff members of the U.S. 
Fish and Wildlife Service's Species Assessment Team and the Tennessee 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 67396]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Fishes
 
                                                  * * * * * * *
Darter, sickle..................  Percina williamsi.  Wherever found....  T              87 FR [INSERT FEDERAL
                                                                                          REGISTER PAGE WHERE
                                                                                          THE DOCUMENT BEGINS],
                                                                                          11/8/2022;
                                                                                         50 CFR 17.44(ee).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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


Sec.  17.44  Special rules--fishes.

* * * * *
    (ee) Sickle darter (Percina williamsi). (1) Prohibitions. The 
following prohibitions that apply to endangered wildlife also apply to 
the sickle darter. Except as provided under paragraphs (ee)(2) and (3) 
of this section and Sec. Sec.  17.4 and 17.5, it is unlawful for any 
person subject to the jurisdiction of the United States to commit, to 
attempt to commit, to solicit another to commit, or cause to be 
committed, any of the following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) General exceptions from prohibitions. In regard to this 
species, you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (3) Exceptions from prohibitions for specific types of incidental 
take. You may take sickle darter while carrying out the following 
legally conducted activities in accordance with this paragraph (ee)(3):
    (i) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) and that take place between April 1 and January 31. These 
projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; a reconnection of surface and 
groundwater systems, resulting in perennial flows in the channel; 
riffles and pools composed of existing soil, rock, and wood instead of 
large imported materials; low compaction of soils within adjacent 
riparian areas; and inclusion of riparian wetlands.
    (ii) Bank stabilization projects that use bioengineering methods to 
replace pre-existing, bare, eroding stream banks with vegetated, stable 
stream banks, thereby reducing bank erosion and instream sedimentation 
and improving habitat conditions for the species and that take place 
between April 1 and January 31. Following these bioengineering methods, 
stream banks may be stabilized using native species live stakes (live, 
vegetative cuttings inserted or tamped into the ground in a manner that 
allows the stake to take root and grow), native species live fascines 
(live branch cuttings, usually willows, bound together into long, cigar 
shaped bundles), or native species brush layering (cuttings or branches 
of easily rooted tree species layered between successive lifts of soil 
fill). Native species vegetation includes woody and herbaceous species 
appropriate for the region and habitat conditions. These methods will 
not include the sole use of quarried rock (riprap) or the use of rock 
baskets or gabion structures.
    (iii) Bridge and culvert replacement/removal projects or low head 
dam removal projects that remove migration barriers or generally allow 
for improved upstream and downstream movements of sickle darters while 
maintaining normal stream flows, preventing bed and bank erosion, and 
improving habitat conditions for the species and that take place 
between April 1 and January 31.
    (iv) Transportation projects that provide for fish passage at 
stream crossings and that take place between April 1 and January 31.
    (v) Silvicultural practices and forest management activities that 
implement State-approved best management practices. In order for this 
exception to apply to forestry-related activities, these best 
management practices must achieve all of the following:
    (A) Establish a streamside management zone alongside the margins of 
each waterway.
    (B) Restrain visible sedimentation caused by the forestry-related 
activity from entering the waterway.
    (C) Maintain native groundcover within the streamside management 
zone of the waterway, and promptly re-establish native groundcover if 
disturbed.
    (D) Limit installation of vehicle or equipment crossings of the 
waterway to only where necessary for the forestry-related activity. 
Such crossings must:
    (1) Have erosion and sedimentation control measures installed to 
divert surface runoff away and restrain visible sediment from entering 
the waterway;
    (2) Allow for movement of aquatic organisms within the waterway; 
and
    (3) Have native groundcover applied and maintained through 
completion of the forestry-related activity.
    (E) Prohibit the use of tracked or wheeled vehicles for 
reforestation site preparation within the streamside management zone of 
the waterway.
    (F) Prohibit locating log decks, skid trails, new roads, and 
portable mill sites in the streamside management zone of the waterway.
    (G) Prohibit obstruction and impediment of the flow of water within 
the waterway that is caused by direct deposition of debris or soil by 
the forestry-related activity.
    (H) Maintain shade over the waterway similar to that observed prior 
to the forestry-related activity.
    (I) Prohibit discharge of any solid waste, petroleum, pesticide, 
fertilizer, or other chemical into the waterway.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-23618 Filed 11-7-22; 8:45 am]
BILLING CODE 4333-15-P