[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
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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