[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Proposed Rules]
[Pages 4128-4150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00977]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2022-0098; FF09E21000 FXES111109FEDR 234]
RIN 1018-BG85


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Sickle Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the sickle darter (Percina williamsi) 
under the Endangered Species Act of 1973 (Act), as amended. In total, 
approximately 104 river miles (168 river kilometers) in Bledsoe, 
Blount, Morgan, and Roane Counties, Tennessee, and Scott, Smyth, and 
Washington Counties, Virginia, fall within the boundaries of the 
proposed critical habitat designation. If we finalize this rule as 
proposed, it would extend the Act's protections to this species' 
critical habitat. We also announce the availability of a draft economic 
analysis of the proposed designation of critical habitat for the sickle 
darter.

DATES: We will accept comments received or postmarked on or before 
March 27, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by March 10, 2023.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
    https://www.regulations.gov. In the Search box, enter FWS-R4-ES-
2022-0098, which is the docket number for this rulemaking. Then, click 
on the Search button. On the resulting page, in the panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2022-0098, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: For the proposed critical 
habitat designation, the coordinates or plot points or both from which 
the maps are generated are included in the decision file for this 
critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0098 and on the 
Service's website at https://www.fws.gov/office/tennessee-ecological-services. Additional supporting information that we developed for this 
critical habitat designation will be available on the Service's 
website, at https://www.regulations.gov, 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 931-528-6481. 
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

[[Page 4129]]

international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, 
any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process.
    What this document does. We propose the designation of critical 
habitat for the sickle darter, which is listed as a threatened species 
(see 87 FR 67380; November 8, 2022).
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary) to designate critical habitat 
concurrent with listing to the maximum extent prudent and determinable. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. Due to the ongoing 
challenges regarding the 2019 regulations, we also seek comments on 
whether and how applying the regulations that were in effect before the 
2019 regulations would alter any of these analyses.
    We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
current regulations identify as reasons why designation of critical 
habitat may be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (d) No areas meet the definition of critical habitat; or
    (e) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    In addition, we seek comment regarding whether and how this 
information would differ under the factors that the pre-2019 
regulations identify as reasons why designation of critical habitat may 
be not prudent.
    (2) Specific information on:
    (a) The amount and distribution of sickle darter habitat;
    (b) Any additional areas occurring within the range of the species 
in Bledsoe, Blount, Morgan, and Roane Counties, Tennessee, and Scott, 
Smyth, and Washington Counties, Virginia, that should be included in 
the designation because they (i) are occupied at the time of listing 
and contain the physical or biological features that are essential to 
the conservation of the species and that may require special management 
considerations or protection, or (ii) are unoccupied at the time of 
listing and are essential for the conservation of the species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) For areas not occupied at the time of listing that are 
essential for the conservation of the species, we particularly seek 
comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of the species; and
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of the species and contain at least one physical or 
biological feature essential to the conservation of the species;
    We also seek comments or information regarding whether areas not 
occupied at the time of listing qualify as ``habitat'' for the species.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (5) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(2) of 
the Act directs that the Secretary shall designate critical habitat on 
the basis of the best scientific information available.
    You may submit your comments and materials concerning this proposed 
rule

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by one of the methods listed in ADDRESSES. We request that you send 
comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final critical habitat designation may 
differ from this proposal. Based on the new information we receive (and 
any comments on that new information), our final designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, or may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion and 
exclusion will not result in the extinction of the species.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On November 12, 2020, we published in the Federal Register (85 FR 
71859) a proposed rule to list the sickle darter as a threatened 
species with a rule issued under section 4(d) of the Act (a ``4(d) 
rule''). On November 8, 2022, we published our final determination in 
the Federal Register (87 FR 67380) and added the sickle darter as a 
threatened species to the List of Endangered and Threatened Wildlife at 
50 CFR 17.11(h) with a 4(d) rule codified at 50 CFR 17.44.
    In our November 12, 2020, proposed rule, we determined that 
critical habitat was prudent but not determinable because we lacked 
specific information on the impacts of our designation. In our November 
8, 2022, final listing rule, we stated we were in the process of 
obtaining information on the impacts of the designation.
    All Federal actions prior to November 12, 2020, are described in 
detail in the proposal to list the sickle darter as a threatened 
species under the Act (85 FR 71859; November 12, 2020). Additional 
information may be found in the final listing rule (87 FR 67380; 
November 8, 2022).
    It is our intent to discuss in this proposed rule only those topics 
directly relevant to the designation of critical habitat for the sickle 
darter. For more information on the taxonomy, life history, habitat, 
population descriptions, and factors affecting the species, please 
refer to the November 12, 2020, proposed listing rule (85 FR 71859) and 
the November 8, 2022, final listing rule (87 FR 67380).

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. 
The Service sent the SSA report to five independent peer reviewers and 
received four responses. Results of this structured peer review process 
can be found at https://regulations.gov and https://www.fws.gov/office/tennessee-ecological-services/library. Our peer-reviewed SSA report 
provided the foundational science to inform this proposed critical 
habitat rule.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features,
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely, by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery,

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or enhancement measures by non-Federal landowners. Where a landowner 
requests Federal agency funding or authorization for an action that may 
affect a listed species or critical habitat, the Federal agency would 
be required to consult with the Service under section 7(a)(2) of the 
Act. However, even if the Service were to conclude that the proposed 
activity would likely result in destruction or adverse modification of 
the critical habitat, the Federal action agency and the landowner are 
not required to abandon the proposed activity, or to restore or recover 
the species; instead, they must implement ``reasonable and prudent 
alternatives'' to avoid destruction or adverse modification of critical 
habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat 
based on the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the species status assessment (SSA) report and 
information developed during the listing process for the species. 
Additional information sources may include any generalized conservation 
strategy, criteria, or outline that may have been developed for the 
species; the recovery plan for the species; articles in peer-reviewed 
journals; conservation plans developed by States and counties; 
scientific status surveys and studies; biological assessments; other 
unpublished materials; or experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As described in the final listing rule, no imminent threat of 
collection or vandalism was identified under Factor B in the final 
listing rule for the sickle darter. The identification and mapping of 
proposed critical habitat units is not expected to initiate any such 
threat of collection. In our final 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 sickle 
darter, and that those threats in some way can be addressed by section 
7(a)(2) consultation measures. The species occurs wholly in 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 the Secretary has not identified 
other circumstances 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:

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    (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)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the sickle darter.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
characteristic flooding or fire regime that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or a particular level of 
nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Habitats Representative of the Historical, Geographical, and Ecological 
Distributions of the Species

    The sickle darter's historical range (prior to 2005) included nine 
tributary systems of the upper Tennessee River drainage in North 
Carolina, Tennessee, and Virginia (Menhinick et al. 1974, p. 42; Etnier 
and Starnes 1993, p. 576; Page and Near 2007, pp. 608-609). The sickle 
darter continues to occupy portions of five tributary systems in the 
historical range in the upper Tennessee drainage in Tennessee and 
Virginia, and it occupies a sixth tributary system in Tennessee with 
more recently discovered occurrences (Alford 2019, pp. 6-13; 
Conservation Fisheries Inc (CFI) and Tennessee, Department of 
Environment and Conservation (TDEC) unpublished data). These six 
tributary systems occur in two of three historically occupied 
ecoregions (Ridge and Valley ecoregion and the Southwestern 
Appalachians ecoregion); the species is extirpated from the Blue Ridge 
ecoregion (EPA Level III ecoregions). Impoundments and the creation of 
reservoirs have reduced connectivity and isolated populations 
historically, affecting the current distribution of the species.
    The sickle darter is most abundant, with evidence of reproduction 
and recruitment, in the Emory River and Little River systems in 
Tennessee. The species' persistence and documented recruitment within 
the Emory River and Little River systems suggests that physical habitat 
and water quality conditions within these reaches are favorable for the 
species. The headwaters of the Little River are protected by land use 
regulations and surrounding forested habitat in the Great Smoky 
Mountains National Park (the Park), but downstream of the Park, stream 
habitat and water quality are influenced by pollutants, and multiple 
impoundments in the watershed restrict the species' movements in the 
river system (Layman 1991, p. 483; Petty et al. 2017, p. 2; Alford 
2019, p. 12). The species occurs in low densities in the remaining four 
river and tributary systems (Clinch River, North Fork Holston River, 
Middle Fork Holston River, and Sequatchie River systems).
    The species has not been observed in North Carolina since 1940, and 
is now extirpated from the French Broad River system (upper French 
Broad River) with deterioration of water quality as the primary reason 
for the species' decline (Menhinick et al. 1974, p. 42; Etnier 1997, p. 
78; Page and Near 2007, p. 610). The species is also likely extirpated 
from four tributary systems in Tennessee (Powell River, South Fork 
Holston River, Watauga River, and the lower French Broad River), where 
it has not been observed since the 1890s, 1940s, 1980s, and 1970s, 
respectively (Alford 2019, pp. 12-13; CFI, TDEC, and Tennessee Valley 
Authority (TVA) unpublished data). The effects of impoundments, surface 
coal mining, and pollution have degraded water quality and stream 
habitat and have contributed to the extirpation of sickle darter from 
these four river systems. The aforementioned river systems of the upper 
Tennessee River drainage in the current range of the species are 
representative of the historical, geographical, and ecological 
distribution of the species.

Space for Individual and Population Growth and for Normal Behavior

    The sickle darter typically occurs in slow-flowing pools of larger, 
upland creeks and small to medium rivers (Kuehne and Barbour 1983, p. 
37; Page 1983, p. 37; Etnier and Starnes 1993, p. 576; Page and Near 
2007, p. 609; Alford 2019, p. 8). Streams with sickle darter occurrence 
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 piles of woody debris (Etnier and Starnes 
1993, p. 576; Page and Near 2007, p. 609; Alford 2019, p. 8).
    Sickle darters occur most often in shallow pools near the bank or 
adjacent to vegetated gravel bars, but these pools are adjacent to 
swift currents (Alford 2019, p. 10). The species spends most of its 
time in the water column, often

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hovering a few centimeters (inches) above the stream or river bottom 
(Etnier and Starnes 1993, p. 576).
    No species-specific information is available on movement behavior 
of the sickle darter. However, studies of movement behavior in two 
related species, the longhead darter (Percina macrocephala) and the 
frecklebelly darter (Percina stictogaster) suggest that the sickle 
darter may have similar migratory behavior (Eisenhour et al. 2009, pp. 
7-12; Eisenhour et al. 2011, pp. 14-15; Eisenhour and Washburn 2016, 
pp. 19-24). Sickle darters may follow seasonal movements similar to the 
longhead darter and move from downstream to upstream reaches following 
periods of severe drought (Eisenhour et al. 2011, pp. 14-15). 
Therefore, connectivity between suitable habitat is needed for the 
sickle darter's dispersal or movement within a stream system.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Sickle darters feed primarily on larval mayflies and midges, and 
also consume riffle beetles, caddisflies, dragonflies, and other 
aquatic macroinvertebrates (Page and Near 2007, pp. 609-610; Alford 
2019, p. 10). Although the closely related longhead darter feeds on 
crayfish, the sickle darter does not (Page 1978, p. 663; Alford 2019, 
p. 10). The long snout and large mouth of the sickle darter likely 
facilitates the capture and ingestion of larger prey items such as 
heptageniid mayflies (Page and Near 2007, p. 609). Sickle darters 
deftly pluck food items from the surfaces of stones and other 
underwater objects while swimming above the stream bottom (Etnier and 
Starnes 1993, p. 576).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    In winter, sickle darters reside in deep pools or in slow-flowing, 
shallow pools in close proximity to cover (Etnier and Starnes 1993, p. 
576; Service 2020, p. 1). The species migrates to shallow gravel shoals 
(riffles) in late winter or early spring (February through March) to 
spawn (Etnier and Starnes 1993, p. 576). The sickle darter requires 
water temperatures of 10 to 16 degrees Celsius ([deg]C) (50 to 61 
degrees Fahrenheit ([deg]F)) for successful spawning (February through 
March) (Etnier and Starnes 1993, p. 576; Page and Near 2007, p. 609; 
Petty et al. 2017, p. 3; Alford 2019, p. 8). In the Little River 
system, Tennessee, eggs laid in March hatched in 27 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 2020, p. 1). The pelagic larvae 
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). The larvae move to the stream bottom in about 30 days 
(Petty et al. 2017, p. 3).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential 
for the sickle darter from studies of this species' habitat, ecology, 
and life history as described below. Additional information can be 
found in the SSA report (Service 2020, pp. 9-19). We have determined 
that the following physical or biological features are essential to the 
conservation of the sickle darter:
    (1) Riffle-pool complexes and transitional areas (glides, runs, and 
slow-flowing pools) of geomorphically stable stream channels and banks 
with ample cover (including woody debris piles and water willow beds) 
and suitable substrates (relatively silt-free sand-detritus or gravel-
cobble-boulder particles) used for foraging, sheltering, and spawning. 
Geomorphically stable stream channels are those that maintain lateral 
dimensions, longitudinal profiles, and sinuosity patterns over time 
without an aggrading or degrading bed elevation.
    (2) Adequate flows or an instream flow regime (e.g., magnitude, 
frequency, duration, and seasonality of discharge over time) sufficient 
to provide permanent surface flows, as measured during years with 
average rainfall, and to maintain instream habitats used by the species 
for foraging, sheltering, and spawning.
    (3) Adequate water quality (including, but not limited to, ammonia, 
conductivity, hardness, heavy metals, pH, temperature, turbidity, and 
other chemical constituents) necessary for normal behavior, growth, and 
viability of all life stages of the sickle darter.
    (4) Aquatic macroinvertebrate prey items, which are typically 
dominated by mayflies and larval midges, but also include riffle 
beetles, caddisflies, dragonflies, and other invertebrates.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the sickle 
darter may require special management considerations or protection to 
reduce the following threats: (1) Urbanization of the landscape, 
including, but not limited to, land conversion for urban and commercial 
use, infrastructure (roads, bridges, utilities), and urban water uses 
(water supply reservoirs, wastewater treatment); (2) nutrient pollution 
from agricultural activities that impact water quantity and quality; 
(3) significant alteration of water quality; (4) significant alteration 
of channel morphology or geometry, including channelization, 
impoundment, road and bridge construction, or instream mining, 
dredging, or channelization; and (5) watershed, riparian, and 
floodplain disturbances that release sediments or nutrients into the 
water or fill suitable habitat.
    Management activities that could ameliorate these threats include, 
but are not limited to, restoration and protection of riparian 
corridors; implementation of best management practices to reduce 
sedimentation, erosion, and streambank degradation; stream bank 
restoration projects; increased use of stormwater management and 
reduction of stormwater flows into the stream systems; reduction of 
other watershed, riparian, and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; and improvements to 
industrial and municipal water treatment facilities and sewage systems 
to reduce nutrient and pathogen pollution.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the definition of critical habitat; specifically, no unoccupied areas 
are essential for the conservation of the species. Designating the six 
currently occupied units across the geographic

[[Page 4134]]

range as critical habitat is adequate to ensure the conservation of the 
species, as it will support the species' redundancy and representation.
    The current distribution of the sickle darter is reduced from its 
historical distribution. The species occurs in six populations, Little 
River, Emory River, Copper Creek, Middle Fork Holston River, North Fork 
Holston River, and Sequatchie River, across two ecoregions, Ridge and 
Valley and Southwestern Appalachians. We anticipate that recovery will 
require continued protection of the existing populations and habitat, 
as well as ensuring there are six or more stable populations of sickle 
darters with sufficient abundance and occupied reaches to increase 
species' viability and that these populations occur in each of the two 
ecoregions (Ridge and Valley and Southwestern Appalachians). The sickle 
darter historically occurred in the Blue Ridge ecoregion; however, the 
habitat in this historically occupied French Broad River no longer 
supports the species' life history needs. This conservation strategy 
and the designation of proposed critical habitat support the species' 
ability to withstand the loss of any one of the populations through a 
catastrophic event, such as the effects of a rangewide drought or mega-
drought or chemical spills, and help ensure such an event is less 
likely to simultaneously affect all known populations. Rangewide 
recovery considerations, such as maintaining existing genetic diversity 
and striving for representation in both ecoregions in the current range 
of the species, were considered in formulating this proposed critical 
habitat designation.
    Sources of data for this proposed critical habitat designation 
include the species status assessment (Service 2020, entire); proposed 
and final listing rules (85 FR 71859, November 12, 2020; 87 FR 67380, 
November 8, 2022); records maintained by the North Carolina Natural 
Heritage Program, Tennessee Department of Environment and Conservation, 
Tennessee Wildlife Resources Agency, Tennessee Valley Authority, and 
the Virginia Department of Game and Inland Fisheries; peer-reviewed 
research (e.g., Page 1978, Etnier and Starnes 1993, Page and Near 2007, 
Alford 2019); university and museum collections; and information from 
other survey reports on streams throughout the species' range 
(Conservation Fisheries Inc (CFI) and Tennessee Aquarium Conservation 
Institute, unpublished data) (Service 2020, p. 15). We have also 
reviewed available information that pertains to the habitat 
requirements of the sickle darter. Sources of information on habitat 
requirements include studies conducted at occupied sites and published 
in peer-reviewed articles, agency reports, and data collected during 
monitoring efforts (Service 2020).
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria. We identified streams and 
rivers within the geographical area occupied at the time of listing 
(i.e., with sickle darter occurrence records from 2005 to 2019). Due to 
the breadth and intensity of survey efforts for freshwater fishes 
throughout the known range of the species, it is reasonable to assume 
that streams with no positive surveys since the 1980s should not be 
considered occupied for the purpose of our analysis. However, this does 
not preclude the possibility of detecting the species in other 
locations upon subsequent surveys. For example, in 2014 and 2019, the 
sickle darter was observed in the Sequatchie River--a new collection 
site and range extension for the species (Alford 2019, pp. 2, 6).
    We then determined those streams that contain one or more of the 
physical or biological features to support the life-history functions 
essential to the conservation of the sickle darter. We delineated end 
points of river units by evaluating the presence or absence of habitat 
conditions and physical or biological features essential to the 
species. We selected upstream and downstream endpoints for each stream 
unit where habitat conditions no longer meet species requirements 
(i.e., do not contain the physical or biological features essential to 
the conservation of the sickle darter). The endpoints often correspond 
to tributary confluences or dams because of the effect of these 
features on habitat conditions. Where favorable habitat shifts to less 
favorable habitat, we selected a reference point such as a highway or 
bridge crossing that will allow the public to identify proposed 
critical habitat units. The occurrence data are linear in nature; 
therefore, for stretches of habitat between occurrences, and between 
occurrences and endpoints of units, we assumed the interposing stream 
segments contain at least one of the physical or biological features 
essential to the conservation of the species and include the 
interposing stream segment in the proposed critical habitat unit. Based 
on the best available scientific data, we determined that all currently 
known occupied habitat for the sickle darter was also occupied by the 
species at the time of listing, and that these areas contain one or 
more of the physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protection.
    Based on this analysis, the following rivers meet the criteria for 
areas occupied by the species at the time of listing: Little River, 
Emory River and Rock Creek, Copper Creek, North Fork Holston River, 
Middle Fork Holston River, and the Sequatchie River. The critical 
habitat designation does not include all streams known to have been 
occupied by the species historically; instead, it includes only the 
occupied streams within the historical range that have also retained 
the physical or biological features that will allow for the maintenance 
and expansion of existing populations.
    The result was the inclusion of six units of critical habitat 
occupied by the sickle darter. These six occupied units amount to 
approximately 104 river miles (168 river kilometers) and account for 
all of the proposed critical habitat. No areas outside the geographical 
area occupied by the species at the time of listing were delineated as 
proposed critical habitat.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the sickle darter. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the essential physical or biological features in the adjacent 
critical habitat.
    We propose to designate as critical habitat those lands that we 
have determined are occupied at the time of listing (i.e., currently 
occupied) and that contain the physical or biological features that are 
essential to support life-history processes of the species.
    Six units are proposed for designation based on one or more of the 
physical or biological features being present to support the sickle 
darter's life-history processes. Some units contain all of the

[[Page 4135]]

identified physical or biological features and support multiple life-
history processes. Some units contain only some of the physical or 
biological features necessary to support the sickle darter's particular 
use of that habitat.
    The proposed critical habitat designation is defined by the maps, 
as modified by any accompanying regulatory text, presented at the end 
of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2022-0098 and on our internet site at https://www.fws.gov/office/tennessee-ecological-services.

Proposed Critical Habitat Designation

    We are proposing to designate 104 river miles (rmi) (168 river 
kilometers (rkm)) in six units as critical habitat for the sickle 
darter. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the sickle darter. The six areas we propose as critical 
habitat are: Little River, Emory River and Rock Creek, Copper Creek, 
North Fork Holston River, Middle Fork Holston River, and Sequatchie 
River. Table 1 shows the proposed critical habitat units, riparian land 
ownership, and the approximate river miles of each unit. Per State 
regulations (Tennessee Code Annotated section 69-1-101 and Code of 
Virginia section 62.1-81), navigable waters are considered public 
rights-of-way. Lands beneath the navigable waters included in this 
proposed rule are owned by the State of Tennessee or the Commonwealth 
of Virginia. Ownership of lands beneath non-navigable waters included 
in this rule are determined by riparian land ownership. The riparian 
land adjacent to the proposed critical habitat is composed of lands in 
private (93 percent), State (6 percent), and Federal (1 percent) 
ownership.

                         Table 1--Proposed Critical Habitat Units for the Sickle Darter
  [All units were occupied by the species at the time of listing and have current (2005 to 2019) sickle darter
                                                  occurrences]
----------------------------------------------------------------------------------------------------------------
                                                     Riparian land ownership by type (miles)
                                                                  (kilometers)                    Length of unit
        Unit No.                Unit name       ------------------------------------------------    *  (miles)
                                                     Federal          State          Private       (kilometers)
----------------------------------------------------------------------------------------------------------------
1.......................  Little River.........  ..............  ..............     16.0 (25.7)        16 (25.7)
2.......................  Emory River (Subunit        1.1 (1.8)       5.8 (9.3)    22.08 (35.5)     29.03 (46.7)
                           2a).
                          Rock Creek (Subunit    ..............  ..............       1.1 (1.8)        1.1 (1.8)
                           2b).
3.......................  Copper Creek.........  ..............  ..............     13.9 (22.4)      13.9 (22.4)
4.......................  North Fork Holston     ..............  ..............     25.1 (40.4)      25.1 (40.4)
                           River.
5.......................  Middle Fork Holston    ..............  ..............       13.7 (22)        13.7 (22)
                           River.
6.......................  Sequatchie River.....  ..............  ..............       5.4 (8.7)        5.4 (8.7)
                                                ----------------------------------------------------------------
    Total...............  .....................       1.1 (1.8)       5.8 (9.3)    97.3 (156.5)    104.2 (167.7)
----------------------------------------------------------------------------------------------------------------
* Note: Stream lengths may not sum due to rounding.

    Approximately 79 percent (83 rmi (133 rkm)) of the critical habitat 
proposed for the sickle darter overlaps with currently designated 
Federal critical habitat for the spotfin chub (Erimonax monachus), 
yellowfin madtom (Notorus flavipinnis), Cumberlandian combshell 
(Epioblasma brevidens), fluted kidneyshell (Ptychobranchus subtentus), 
oyster mussel (Epioblasma capsaeformis), purple bean (Villosa 
perpurpurea), rough rabbitsfoot (Quadrula cylindrica strigillata), and 
slabside pearlymussel (Pleuronaia dolabelloides). Please refer to table 
2, below, for the area of overlap with other federally designated 
critical habitat and to specific unit descriptions below for which 
currently designated Federal critical habitat overlaps with each 
proposed critical habitat unit for the sickle darter.

 Table 2--Units and Co-Occurring Federally Listed Species or Designated
                            Critical Habitat
------------------------------------------------------------------------
                                                            Overlapping
                                                             critical
Proposed critical habitat units    Co-occurring listed        habitat
                                         species              (miles)
                                                           (kilometers)
------------------------------------------------------------------------
1: Little River................  Duskytail darter         ..............
                                  (Etheostoma percnurum).
                                 Snail darter (Percina    ..............
                                  tanasi).
                                 Finerayed pigtoe         ..............
                                  (Fusconaia cuneolus).
2a: Emory River................  Spotfin chub...........     29.0 (46.7)
                                 Purple bean............  ..............
                                 Alabama lampmussel       ..............
                                  (Lampsilis virescens).
2b: Rock Creek.................
3: Copper Creek................  Duskytail darter.......  ..............
                                 Slender chub (Erimystax  ..............
                                  cahni).
                                 Yellowfin madtom.......     13.9 (22.4)
                                 Birdwing pearlymussel    ..............
                                  (Lemiox rimosus).
                                 Cracking pearlymussel    ..............
                                  (Hemistena lata).
                                 Cumberlandian combshell     13.9 (22.4)
                                 Cumberland bean          ..............
                                  (Villosa trabalis).
                                 Fanshell (Cyprogenia     ..............
                                  stegaria).
                                 Fine-rayed pigtoe......  ..............

[[Page 4136]]

 
                                 Fine-rayed pigtoe......  ..............
                                 Fluted kidneyshell.....     13.9 (22.4)
                                 Littlewing pearlymussel  ..............
                                  (Pegias fabula).
                                 Oyster mussel..........     13.9 (22.4)
                                 Purple bean............     13.9 (22.4)
                                 Rough rabbitsfoot......     13.9 (22.4)
                                 Sheepnose (Plethobasus   ..............
                                  cyphyus).
                                 Shiny pigtoe (Fusconaia  ..............
                                  cor).
                                 Slabside pearlymussel..  ..............
                                 Snuffbox (Epioblasma     ..............
                                  triquetra).
                                 Spectaclecase            ..............
                                  (Cumberlandia
                                  monodonta).
4: North Fork Holston River....  Spotfin chub...........  ..............
                                 Yellowfin madtom.......  ..............
                                 Fluted kidneyshell.....  ..............
                                 Littlewing pearlymussel  ..............
                                 Shiny pigtoe...........  ..............
                                 Slabside pearlymussel..     21.0 (33.8)
5: Middle Fork Holston River...  Fluted kidneyshell.....     13.7 (22.0)
                                 Littlewing pearlymussel  ..............
                                 Shiny pigtoe...........  ..............
                                 Slabside pearlymussel..     13.7 (22.0)
                                 Tan riffleshell          ..............
                                  (Epioblasma florentina
                                  walkeri (=E. walkeri)).
6: Sequatchie River............  Slabside pearlymussel..       5.4 (8.7)
------------------------------------------------------------------------

    We present brief descriptions of each of the proposed critical 
habitat units and why they meet the definition of critical habitat for 
the sickle darter, below.

Unit 1: Little River

    Unit 1 consists of approximately 16.0 rmi (25.7 rkm) of the Little 
River beginning at the Rockford Manufacturing Company low head dam 
(Blount County, Tennessee) and continuing upstream to Peery's Mill Dam, 
Blount County, Tennessee. Land ownership for Unit 1 is private except 
for any small amount of publicly owned lands in the form of bridge 
crossings and road easements. Unit 1 contains all of the physical or 
biological features essential to the conservation of the sickle darter. 
Special management considerations or protection may be required within 
Unit 1 to alleviate impacts from stressors that are anticipated to 
amplify degradation of the habitat, including pollutant input, 
siltation, excess nutrients, loss of riparian vegetation, stream 
habitat alteration, and pathogens. Sources of these stressors include 
agricultural, municipal, and residential land uses. Special management 
considerations related to agricultural and developed areas that will 
benefit the habitat in Unit 1 include, but are not limited to, the 
following: Treating wastewater to the highest level practicable to 
reduce pollution input; reducing other wastewater or stormwater runoff 
to decrease effects of pollution, siltation, and excess nutrients; 
removing barriers to increase connectivity of sickle darter 
populations; protecting and restoring riparian buffers to decrease 
siltation, nutrient, and pollution input; and encouraging agricultural 
and grazing practices that minimize nutrient and sediment input.

Unit 2: Emory River and Rock Creek

    Unit 2 consists of two subunits comprising a total of 30.1 rmi 
(48.5 rkm) in Morgan and Roane Counties, Tennessee. The riparian lands 
in this unit are held in State (19.3 percent), Federal (3.7 percent), 
and private (77 percent) ownership.
    Subunit 2a consists of 29.0 rmi (46.7 rkm) of the Emory River 
beginning at its confluence with Clifty Creek in Morgan County, 
Tennessee, and continuing upstream to its confluence with Little Creek, 
Morgan and Roane Counties, Tennessee. Ownership for Subunit 2a (Emory 
River) includes a mixture of Federal (National Park Service (Obed Wild 
and Scenic River)), State (Tennessee Wildlife Resources Agency (Catoosa 
Wildlife Management Area)), and private lands. The Tennessee Wildlife 
Resources Agency owns and manages 5.8 rmi (9.3 rkm) of the riparian 
area in the Catoosa Wildlife Management Area and manages 1.1 rmi (1.8 
rkm) in the Obed Wild and Scenic River through the planning and 
management guidelines found in the National Park Service's Wild and 
Scenic River Foundation Document (NPS 2015, entire). Subunit 2a 
contains all of the physical or biological features essential to the 
conservation of the sickle darter. Special management considerations or 
protection may be required within Subunit 2a to alleviate impacts from 
stressors that have led to the degradation of the habitat, including 
siltation, loss of riparian vegetation, elevated levels of dissolved 
solids, and excess nutrients. Sources of these stressors include legacy 
mining, petroleum activities, rural municipal and residential land uses 
(including point source discharges), as well as small-scale agriculture 
(predominantly hay and pasture). Special management considerations 
related to agricultural and developed areas that will benefit the 
habitat in this unit include, but are not limited to the following: 
Treating wastewater to the highest level practicable to reduce 
nutrients and other pollutant input; reducing other wastewater or 
stormwater runoff to decrease effects of pollution, siltation, and 
excess nutrients; protecting and restoring riparian buffers to decrease 
siltation, nutrient, and pollution input; and encouraging agricultural 
and grazing practices that minimize nutrient and sediment input. All of 
Subunit 2a overlaps with designated critical habitat for the spotfin 
chub.
    Subunit 2b (Rock Creek) consists of approximately 1.1 rmi (1.8 rkm) 
of Rock Creek from the Emory River confluence to a steep riffle/run 
sequence on Rock

[[Page 4137]]

Creek, Morgan County, Tennessee. Land ownership for Subunit 2b is 
private except for any small amount of publicly owned lands in the form 
of bridge crossings and road easements. Subunit 2b contains all of the 
physical or biological features essential to the conservation of the 
sickle darter. Special management considerations or protection may be 
required within Subunit 2b to alleviate impacts from stressors that 
have led to the degradation of the habitat, including siltation, loss 
of riparian vegetation, elevated levels of dissolved solids, and excess 
nutrients. Sources of these stressors include legacy mining, petroleum 
activities, rural municipal and residential land uses (including point 
source discharges), as well as small-scale agriculture (predominantly 
hay and pasture). Special management considerations related to 
agricultural and developed areas that will benefit the habitat in this 
unit include, but are not limited to: Protecting and restoring riparian 
buffers to decrease siltation, excess nutrients, and other pollution 
inputs into habitat where the sickle darter occurs and encouraging 
agricultural and grazing practices that minimize nutrient and sediment 
input.

Unit 3: Copper Creek

    Unit 3 consists of approximately 13.9 rmi (22.4 rkm) of Copper 
Creek beginning at the Clinch River confluence, Scott County, Virginia, 
and continuing upstream to the Obeys Creek confluence, Scott County, 
Virginia. Land ownership for Unit 3 is private except for any small 
amount of publicly owned lands in the form of bridge crossings and road 
easements. Unit 3 contains three of the physical or biological features 
essential to the conservation of the sickle darter; the water quality 
in this unit is degraded. Special management considerations or 
protection may be required within Unit 3 to alleviate impacts from 
stressors that are anticipated to amplify degradation of the habitat, 
including pathogens, siltation, elevated levels of dissolved solids, 
and excess nutrients. Sources of these stressors include agricultural 
practices (pasture grazing and unrestricted cattle access), legacy coal 
mining, municipal point source discharges, and residential development. 
Special management considerations related to agricultural and developed 
areas that will benefit the habitat in this unit include, but are not 
limited to, the following: Treating wastewater to the highest level 
practicable to reduce input of pollutants; reducing other wastewater or 
stormwater runoff to decrease the effects of pollution, siltation, and 
excess nutrients; removing barriers to increase connectivity of sickle 
darter populations; protecting and restoring riparian buffers to 
decrease siltation, excess nutrients, and pollution input; and 
encouraging agricultural and grazing practices that minimize nutrient 
and sediment input. All of Unit 3 overlaps with designated critical 
habitat for yellowfin madtom, Cumberlandian combshell, fluted 
kidneyshell, oyster mussel, purple bean, and rough rabbitsfoot.

Unit 4: North Fork Holston River

    Unit 4 consists of approximately 25.1 rmi (40.4 rkm) of the North 
Fork Holston River beginning at the Virginia Highway 91 (VA 91) bridge 
crossing in Smyth County, Virginia, and continuing upstream to the VA 
16 bridge crossing, Smyth County, Virginia. Land ownership for Unit 4 
is private except for any small amount of publicly owned lands in the 
form of bridge crossings and road easements. Unit 4 contains two of the 
physical or biological features essential to the conservation of the 
sickle darter; water quality is degraded and suitable substrates are 
lacking in this unit. Special management considerations or protection 
may be required within Unit 4 to alleviate impacts from stressors that 
are anticipated to amplify degradation of the habitat, including 
pollutant input (including mercury), siltation, pathogens, excess 
nutrients, and instream habitat disturbance. Sources of these stressors 
include agricultural (unrestricted cattle access), untreated wastewater 
discharges, coal mining, and rural residential land uses. Special 
management considerations related to agricultural and developed areas 
that will benefit the habitat in this unit include, but are not limited 
to, the following: Reducing wastewater or stormwater runoff to decrease 
the effects of pollution, siltation, and excess nutrients; removing 
barriers to increase connectivity of existing populations; protecting 
and restoring riparian buffers to decrease siltation, excess nutrients, 
and pollution input; and encouraging agricultural and grazing practices 
that minimize nutrient and sediment input. Approximately 21.0 rmi (33.8 
rkm) of Unit 4 overlaps with designated critical habitat for slabside 
pearlymussel.

Unit 5: Middle Fork Holston River

    Unit 5 consists of approximately 13.7 rmi (22 rkm) of the Middle 
Fork Holston River beginning at the VA 91 bridge crossing in Washington 
County, Virginia, and continuing upstream to U.S. Highway 11 bridge 
crossing, Smyth County, Virginia. Land ownership for Unit 5 is private, 
except for any small amount of publicly owned lands in the form of 
bridge crossings or road easements. Unit 5 contains three of the 
physical or biological features essential to the conservation of the 
sickle darter; the water quality is degraded in this unit. Special 
management considerations or protection may be required within Unit 5 
to alleviate impacts from stressors that are anticipated to amplify 
degradation of the habitat, including siltation, pathogens, nutrients, 
and other chemicals associated with agriculture. Sources of these 
stressors include agricultural (unrestricted cattle access, pasture), 
untreated wastewater discharges, highway/road runoff, and rural 
residential land uses. Special management considerations related to 
agricultural and developed areas that will benefit the habitat in this 
unit include, but are not limited to, the following: Treating 
wastewater to the highest level practicable to reduce input of 
pollutants; reducing other wastewater or stormwater runoff to decrease 
the effects of pollution, siltation, and excess nutrients; removing 
barriers to increase connectivity of sickle darter populations; 
protecting and restoring riparian buffers to decrease siltation, excess 
nutrients, and pollution input; and encouraging agricultural and 
grazing practices that minimize nutrient and sediment input. All of 
Unit 5 overlaps with designated critical habitat for the slabside 
pearlymussel.

Unit 6: Sequatchie River

    Unit 6 consists of approximately 5.4 rmi (8.7 rkm) of the 
Sequatchie River beginning at the Tennessee Highway 209 bridge crossing 
and continuing upstream to Cooper Mill dam Bledsoe County, Tennessee. 
Land ownership for Unit 6 is private except for any small amount of 
publicly owned lands in the form of bridge crossings and road 
easements. Unit 6 contains three of the physical or biological features 
essential to the conservation of the sickle darter; water quality is 
degraded in this unit. Special management considerations or protection 
may be required within Unit 6 to alleviate impacts from stressors that 
are anticipated to amplify degradation of the habitat, including 
sedimentation, pathogens, excess nutrients, and development. Sources of 
these stressors include agriculture land development, upstream 
impoundments, and septic discharges in residential areas. Special 
management considerations related to agricultural and developed areas 
that will benefit the habitat in this unit include, but are not limited 
to, the

[[Page 4138]]

following: Treating wastewater to the highest level practicable to 
reduce input of pollutants; reducing other wastewater or stormwater 
runoff to decrease the effects of pollution, siltation, and excess 
nutrients; removing barriers to increase connectivity of sickle darter 
populations; protecting and restoring riparian buffers to decrease 
siltation, excess nutrients, and pollution input; and encouraging 
agricultural and grazing practices that minimize nutrient and sediment 
input. All of Unit 6 overlaps with designated critical habitat for the 
slabside pearlymussel.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but Congress also enacted some 
exceptions in 2018 to the requirement to reinitiate consultation on 
certain land management plans on the basis of a new species listing or 
new designation of critical habitat that may be affected by the subject 
federal action. See 2018 Consolidated Appropriations Act, Public Law 
115-141, Div, O, 132 Stat. 1059 (2018).

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider are likely to destroy or adversely 
modify critical habitat, include, but are not limited to:
    (1) Actions that would block or disconnect stream and river 
channels and contribute to further habitat fragmentation at a scale and 
magnitude that appreciably diminishes the value of critical habitat 
(e.g., large impoundments, reservoir creation). Such activities 
include, but are not limited to, construction of barriers that impede 
the instream movement of the sickle darter (e.g., impoundments, dams, 
culverts, or weirs). These activities could result in destruction or 
fragmentation of habitat, block movements between habitats, and/or 
affect flows within or into critical habitat. In addition, these 
activities can isolate populations that are more at risk of decline or 
extirpation as a result of genetic drift, demographic or environmental 
stochasticity, and catastrophic events.

[[Page 4139]]

    (2) Actions that would affect channel substrates and stability or 
geomorphology at a scale and magnitude that appreciably diminishes the 
value of critical habitat (e.g., multiple or large tributary or main 
channel rerouting, dam construction on a river with sickle darter 
occurrences). Such activities include channelization, impoundment, 
mining, dredging, road and bridge construction, removal of riparian 
vegetation, and land clearing. These activities may lead to changes in 
channel substrates, erosion of the streambed and banks, and excessive 
sedimentation that could degrade sickle darter habitat.
    (3) Actions that would reduce flow levels or alter flow regimes at 
a scale and magnitude that appreciably diminishes the value of critical 
habitat (i.e., flow levels or regimes that no longer support sickle 
darter in one or more critical habitat units). These could include, but 
are not limited to, activities that block or lower surface flow or 
groundwater levels, including channelization, impoundment, groundwater 
pumping, and surface water withdrawal or diversion. Such activities can 
result in long-term changes in stream flows that affect habitat quality 
and quantity for the sickle darter and its prey.
    (4) Actions that would significantly alter water chemistry or 
quality to the extent that the value of critical habitat is appreciably 
diminished (i.e., water quality does not support the sickle darter's 
needs in one or more units). Such activities could include, but are not 
limited to, release of chemicals or biological pollutants or heated 
effluents into the surface water or connected groundwater at a point 
source or by dispersed release (non-point source). These activities 
could alter water conditions to levels that are beyond the tolerances 
of the sickle darter and result in direct or cumulative adverse effects 
to individuals and their life cycles.
    (5) Actions that would significantly increase sediment deposition 
or stream bottom embeddedness within the stream channel to the extent 
that the value of critical habitat is appreciably diminished (e.g., 
excessive siltation such that sickle darters are not able to use the 
critical habitat unit). Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, timber harvest, mining, dredging, and 
other watershed and floodplain disturbances. These activities could 
eliminate or reduce the habitat necessary for the growth and 
reproduction of the sickle darter by increasing the sediment deposition 
to levels that would adversely affect the sickle darter's ability to 
complete its life cycle.
    (6) Actions that would result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, even if those segments are occasionally intermittent, 
or the introduction of other species that compete with or prey on the 
sickle darter to the extent that the value of critical habitat is 
appreciably diminished. Possible actions could include, but are not 
limited to, stocking of nonnative fishes or other related actions. 
These activities can introduce parasites or disease; result in direct 
predation or direct competition; or affect the growth, reproduction, 
and survival of the sickle darter.

Exemptions

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

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

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016). We explain each decision to exclude areas, as well as decisions 
not to exclude, to demonstrate that the decision is reasonable.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts

[[Page 4140]]

attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. 
Section 3(f) of E.O. 12866 identifies four criteria when a regulation 
is considered a ``significant'' rulemaking, and requires additional 
analysis, review, and approval if met. The criterion relevant here is 
whether the designation of critical habitat may have an economic effect 
of greater than $100 million in any given year (section 3(f)(1)). 
Therefore, our consideration of economic impacts uses a screening 
analysis to assess whether a designation of critical habitat for sickle 
darter is likely to exceed the economically significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the sickle darter (IEc 2021, entire). We began by 
conducting a screening analysis of the proposed designation of critical 
habitat in order to focus our analysis on the key factors that are 
likely to result in incremental economic impacts. The purpose of the 
screening analysis is to filter out particular geographic areas of 
critical habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. The presence of the listed species in 
occupied areas of critical habitat means that any destruction or 
adverse modification of those areas is also likely to jeopardize the 
continued existence of the species. Therefore, designating occupied 
areas of critical habitat typically causes little if any incremental 
impacts above and beyond the impacts of listing the species. Therefore, 
the screening analysis focuses on areas of unoccupied critical habitat. 
If there are any unoccupied units in the proposed critical habitat 
designation, the screening analysis assesses whether any additional 
management or conservation efforts may incur incremental economic 
impacts. This screening analysis combined with the information 
contained in our IEM constitute what we consider to be our draft 
economic analysis (DEA) of the proposed critical habitat designation 
for the sickle darter; our DEA is summarized in the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the sickle darter, first we 
identified, in the IEM dated August 20, 2021, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Agriculture; (2) conservation/restoration; (3) 
development; (4) dredging; (5) flood control; (6) forest management; 
(7) hydropower; (8) transportation; (9) in-water construction; (10) 
recreation, including construction of recreation infrastructure; (11) 
water quality, quantity, and supply; and (12) utilities. We considered 
each industry or category individually. Additionally, we considered 
whether their activities have any Federal involvement. Critical habitat 
designation generally will not affect activities that do not have any 
Federal involvement; under the Act, designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies. Federal agencies already are required to consult with 
the Service under section 7 of the Act on activities they fund, permit, 
or implement that may affect the species, so if we finalize this 
proposed critical habitat designation, our consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the sickle 
darter's critical habitat. The sickle darter has not been listed long 
enough for us to have conducted any section 7 consultations. It has 
been our experience that, for such species, it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and which will result solely from the designation of 
critical habitat. However, the following specific circumstances help to 
inform our evaluation: (1) The essential physical or biological 
features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would result in sufficient harm or harassment to constitute 
jeopardy to the sickle darter would also likely adversely affect the 
essential physical or biological features of critical habitat. The IEM 
outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the 
designation of critical habitat for this species. This evaluation of 
the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the sickle darter 
totals approximately 104 rmi (168 rkm) of river and stream channels in 
six units in Tennessee and Virginia. All six units were occupied by the 
sickle darter at the time of listing and contain recent (2005 to 2019) 
occurrences of sickle darter. In these areas, actions that may affect 
the species or its habitat would also affect proposed critical habitat. 
Thus, it is unlikely that any additional conservation efforts would be 
recommended to address the adverse

[[Page 4141]]

modification standard over and above those recommended as necessary to 
avoid jeopardizing the continued existence of the sickle darter. We are 
not proposing to designate any units of unoccupied habitat. Because we 
are proposing only the designation of occupied critical habitat, the 
only additional costs that are expected in all of the proposed critical 
habitat designation are administrative costs. The entities most likely 
to incur incremental costs are the Federal action agencies that are 
parties to section 7 consultations. While the analysis for adverse 
modification of critical habitat will require time and resources by 
both the Federal action agency and the Service, these costs would 
predominantly be administrative in nature. About 93 percent of the 
proposed critical habitat designation for the sickle darter lies on 
private lands. As such, incremental costs from public perception of the 
designation have some potential to arise (IEc 2021, p. 17). However, 
the estimated incremental costs of critical habitat designation for the 
sickle darter in the first year are unlikely to exceed $96,000 (2021 
dollars) (IEc 2021, p. 14). Thus, critical habitat designation for the 
sickle darter is unlikely to generate costs or benefits exceeding $100 
million in a single year. Therefore, this rule is unlikely to meet the 
threshold for an economically significant rule, with regard to costs, 
under E.O. 12866.
    We are soliciting data and comments from the public on the DEA 
discussed above. During the development of a final designation, we will 
consider the information presented in the DEA and any additional 
information on economic impacts we receive during the public comment 
period to determine whether any specific areas should be excluded from 
the final critical habitat designation under authority of section 
4(b)(2) and our implementing regulations at 50 CFR 424.19. We may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area, 
provided the exclusion will not result in the extinction of this 
species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland security concerns, or we have otherwise 
identified national security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
credible information, including a reasonably specific justification of 
an incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the sickle 
darter are not owned, managed, or used by the DoD or DHS; therefore, we 
anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as HCPs, safe harbor agreements (SHAs), or 
candidate conservation agreements with assurances (CCAAs)--or whether 
there are non-permitted conservation agreements and partnerships that 
may be impaired by designation of, or exclusion from, critical habitat. 
In addition, we look at whether Tribal conservation plans or 
partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, public-health, 
community-interest, environmental, or social impacts that might occur 
because of the designation.
    We have not identified any areas to consider for exclusion from 
critical habitat based on other relevant impacts. In preparing this 
proposal, we have determined that no HCPs or other management plans for 
sickle darter currently exist, and the proposed designation does not 
include any Tribal lands or trust resources or any lands for which 
designation would have any economic or national security impacts. 
Therefore, we anticipate no impact on Tribal lands, partnerships, or 
HCPs from this proposed critical habitat designation and thus, as 
described above, we are not considering excluding any particular areas 
on the basis of the presence of conservation agreements or impacts to 
trust resources.
    However, if through the public comment period we receive 
information that we determine indicates that there are potential 
economic, national security, or other relevant impacts from designating 
particular areas as critical habitat, then as part of developing the 
final designation of critical habitat, we will evaluate that 
information and may conduct a discretionary exclusion analysis to 
determine whether to

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exclude those areas under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 424.19. If we receive a request for 
exclusion of a particular area and after evaluation of supporting 
information we do not exclude, we will fully describe our decision in 
the final rule for this action.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

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

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. In our economic analysis, we did not find that the 
designation of this proposed critical habitat would significantly 
affect energy supplies, distribution, or use. We do not foresee any 
energy development projects, supply distribution, or use that may 
affect the proposed critical habitat units for the sickle darter. 
Further, in our evaluation of potential economic impacts, we did not 
find that this proposed critical habitat designation would 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

[[Page 4143]]

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments, because it will not produce a 
Federal mandate of $100 million or greater in any year, that is, it is 
not a ``significant regulatory action'' under the Unfunded Mandates 
Reform Act. The designation of critical habitat imposes no obligations 
on State or local governments. Therefore, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

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

Federalism--Executive Order 13132

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

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule would not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the physical or biological features 
essential to the conservation of the species. The proposed areas of 
critical habitat are presented on maps, and the proposed rule provides 
several options for the

[[Page 4144]]

interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of 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 determined that no Tribal 
lands fall within the boundaries of the proposed critical habitat for 
the sickle darter, so no Tribal lands would be affected by the proposed 
designation.

References Cited

    A complete list of references cited in this rulemaking 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 proposed rule are the staff members of 
the 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.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11, in paragraph (h), by revising the entry for 
``Darter, sickle'' under FISHES in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name       Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Fishes
 
                                                  * * * * * * *
Darter, sickle..................  Percina williamsi..  Wherever found....            T   87 FR 67380, 11/8/2022;
                                                                                          50 CFR 17.44(ee); \4d\
                                                                                          50 CFR 17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.95, in paragraph (e), by adding an entry for ``Sickle 
Darter (Percina williamsi)'' after the entry for ``Rush Darter 
(Etheostoma phytophilum)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Sickle Darter (Percina williamsi)
    (1) Critical habitat units are depicted for Bledsoe, Blount, 
Morgan, and Roane Counties, Tennessee, and Scott, Smyth, and Washington 
Counties, Virginia, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the sickle darter consist of the 
following components:
    (i) Riffle-pool complexes and transitional areas (glides, runs, and 
slow-flowing pools) of geomorphically stable stream channels and banks 
with ample cover (including woody debris piles and water willow beds) 
and suitable substrates (relatively silt-free sand-detritus or gravel-
cobble-boulder particles) used for foraging, sheltering, and spawning. 
Geomorphically stable stream channels are those that maintain lateral 
dimensions, longitudinal profiles, and sinuosity patterns over time 
without an aggrading or degrading bed elevation.
    (ii) Adequate flows or an instream flow regime (e.g., magnitude, 
frequency, duration, and seasonality of discharge over time) sufficient 
to provide permanent surface flows, as measured during years with 
average rainfall, and to maintain instream habitats used by the species 
for foraging, sheltering, and spawning.
    (iii) Adequate water quality (including, but not limited to, 
ammonia,

[[Page 4145]]

conductivity, hardness, heavy metals, pH, temperature, turbidity, and 
other chemical constituents) necessary for normal behavior, growth, and 
viability of all life stages of the sickle darter.
    (iv) Aquatic macroinvertebrate prey items, which are typically 
dominated by mayflies and larval midges, but also include riffle 
beetles, caddisflies, dragonflies, and other invertebrates.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF FINAL RULE].
    (4) Data layers defining map units were created using Esri ArcGIS 
Pro mapping software, version 2.7.2 with U.S. Geological Survey's 
National Hydrography Dataset flowline data, on a base map of State, 
County, and city limit boundaries from the State of Tennessee's 
Strategic Technology Solutions branch. Critical habitat units were 
mapped using the Tennessee State Plane Coordinate System, Lambert 
Conformal Conic projection and North American 1983 (NAD83) datum. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site at https://www.fws.gov/office/tennessee-ecological-services, at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0098, and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:

Figure 1 to Sickle Darter (Percina williamsi) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP24JA23.245

    (6) Unit 1: Little River, Blount County, Tennessee.
    (i) Unit 1 consists of approximately 16.0 river miles (rmi) (25.7 
river kilometers (rkm)) of the Little River beginning at the Rockford 
Manufacturing Company low head dam and continuing upstream to Peery's 
Mill Dam, in Blount County, Tennessee. Unit 1 is composed of lands in 
private ownership.
    (ii) Map of Unit 1 follows:

Figure 2 to Sickle Darter (Percina williamsi) paragraph (6)(ii)

[[Page 4146]]

[GRAPHIC] [TIFF OMITTED] TP24JA23.246

    (7) Unit 2: Emory River and Rock Creek, Morgan and Roane Counties, 
Tennessee.
    (i) Unit 2 consists of two subunits, Subunit 2a (Emory River) and 
Subunit 2b (Rock Creek), comprising 30.1 rmi (48.5 rkm) in Morgan and 
Roane Counties, Tennessee.
    (A) Subunit 2a consists of 29.0 rmi (46.7 rkm) of the Emory River 
beginning at its confluence with Clifty Creek in Morgan County, 
Tennessee, and continuing upstream to its confluence with Little Creek, 
in Morgan and Roane Counties, Tennessee. Subunit 2a is composed of 
lands in Federal (1.1 rmi (1.8 rkm)), State (5.8 rmi (9.3 rkm)), and 
private (22.08 rmi (35.5 rkm)) ownership, including the federally owned 
Obed Wild and Scenic River and the State-owned Catoosa Wildlife 
Management Area.
    (B) Subunit 2b consists of approximately 1.1 rmi (1.8 rkm) of Rock 
Creek from the Emory River confluence to a steep riffle/run sequence on 
Rock Creek (36.133177, -84.630685), in Morgan County, Tennessee.
    (ii) Map of Unit 2 follows:

Figure 3 to Sickle Darter (Percina williamsi) paragraph (7)(ii)

[[Page 4147]]

[GRAPHIC] [TIFF OMITTED] TP24JA23.247

    (8) Unit 3: Copper Creek, Scott County, Virginia.
    (i) Unit 3 consists of approximately 13.9 rmi (22.4 rkm) of Copper 
Creek beginning at the Clinch River confluence and continuing upstream 
to the Obeys Creek confluence, in Scott County, Virginia. Unit 3 is 
composed of lands in private ownership.
    (ii) Map of Unit 3 follows:

Figure 4 to Sickle Darter (Percina williamsi) paragraph (8)(ii)

[[Page 4148]]

[GRAPHIC] [TIFF OMITTED] TP24JA23.248

    (9) Unit 4: North Fork Holston River, Smyth County, Virginia.
    (i) Unit 4 consists of approximately 25.1 rmi (40.4 rkm) of the 
North Fork Holston River beginning at the Virginia Highway 91 (VA 91) 
bridge crossing in Smyth County and continuing upstream to the VA 16 
bridge crossing, in Smyth County, Virginia. Unit 4 is composed of lands 
in private ownership.
    (ii) Map of Unit 4 follows:

Figure 5 to Sickle Darter (Percina williamsi) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP24JA23.249


[[Page 4149]]


    (10) Unit 5: Middle Fork Holston River, Washington and Smyth 
Counties, Virginia.
    (i) Unit 5 consists of approximately 13.7 rmi (22 rkm) of the 
Middle Fork Holston River beginning at the VA 91 bridge crossing in 
Washington County and continuing upstream to the U.S. Highway 11 bridge 
crossing in Smyth County, Virginia. Unit 5 is composed of lands in 
private ownership.
    (ii) Map of Unit 5 follows:

Figure 6 to Sickle Darter (Percina williamsi) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP24JA23.250

    (11) Unit 6: Sequatchie River, Bledsoe County, Tennessee.
    (i) Unit 6 consists of approximately 5.4 rmi (8.7 rkm) of the 
Sequatchie River beginning at the Tennessee Highway 209 bridge crossing 
and continuing upstream to Cooper Mill dam at 35.630463, -85.15394, in 
Bledsoe County, Tennessee. Unit 6 is composed of lands in private 
ownership.
    (ii) Map of Unit 6 follows:

Figure 7 to Sickle Darter (Percina williamsi) paragraph (11)(ii)

[[Page 4150]]

[GRAPHIC] [TIFF OMITTED] TP24JA23.251

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-00977 Filed 1-23-23; 8:45 am]
BILLING CODE 4333-15-P