Endangered and Threatened Wildlife and Plants; Reclassification of the Relict Darter From Endangered to Threatened With a Section 4(d) Rule

CourtFish And Wildlife Service
Citation87 FR 12056
Published date03 March 2022
Record Number2022-03315
Federal Register, Volume 87 Issue 42 (Thursday, March 3, 2022)
[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
                [Proposed Rules]
                [Pages 12056-12073]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-03315]
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                DEPARTMENT OF THE INTERIOR
                Fish and Wildlife Service
                50 CFR Part 17
                [Docket No. FWS-R4-ES-2021-0093; FF09E22000 FXES1113090FEDR 223]
                RIN 1018-BF56
                Endangered and Threatened Wildlife and Plants; Reclassification
                of the Relict Darter From Endangered to Threatened With a Section 4(d)
                Rule
                AGENCY: Fish and Wildlife Service, Interior.
                ACTION: Proposed rule; availability of draft recovery plan and request
                for public comment.
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                SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
                reclassify (downlist) the relict darter (Etheostoma chienense) from
                endangered to threatened under the Endangered Species Act of 1973, as
                amended (Act). The relict darter is a fish species that occupies the
                Bayou de Chien stream system in western Kentucky. Our evaluation of the
                best available scientific and commercial information indicates that the
                species' status has improved such that it is not currently in danger of
                extinction throughout all or a significant portion of its range, but
                that it is still likely to become so in the foreseeable future. We also
                propose a rule under section 4(d) of the Act that provides for the
                conservation of the relict darter. In addition, we announce the
                availability of the draft recovery plan for the relict darter. The
                draft recovery plan includes specific recovery objectives and criteria
                based on the species status assessment. We request review of this
                proposal and of the draft recovery plan and comment from local, State,
                and Federal agencies, nongovernmental organizations, Tribes, and the
                public.
                [[Page 12057]]
                DATES: We will accept comments received or postmarked on or before May
                2, 2022. 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 April 18, 2022.
                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-2021-0093,
                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-2021-0093, 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: This proposed rule and
                supporting documents, including the 5-year review, the draft recovery
                plan, and the species status assessment (SSA) report, are available at
                https://www.regulations.gov under Docket No. FWS-R4-ES-2021-0093.
                FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
                Fish and Wildlife Service, Kentucky Ecological Services Field Office,
                330 West Broadway, Suite 265, Frankfort, KY 40601; telephone 502-695-
                0468. Persons who use a telecommunications device for the deaf (TDD)
                may call the Federal Relay Service at 800-877-8339.
                SUPPLEMENTARY INFORMATION:
                Executive Summary
                 Why we need to publish a rule. Under the Act, a species warrants
                reclassification from endangered to threatened if it no longer meets
                the definition of an endangered species (in danger of extinction
                throughout all or a significant portion of its range). The relict
                darter (Etheostoma chienense) is listed as endangered, and we are
                proposing to reclassify (downlist) the relict darter as threatened
                because we have determined it is not currently in danger of extinction
                throughout all or a significant portion of its range. Reclassifying a
                species as a threatened species can be completed only by issuing a
                rulemaking.
                 What this document does. This rulemaking proposes to reclassify the
                relict darter from endangered to threatened (i.e., to ``downlist'' the
                species), with a rule issued under section 4(d) of the Act (hereafter
                ``a 4(d) rule''), based on the species' current status, which has been
                improved through implementation of conservation actions. This document
                also announces the availability of the draft recovery plan for the
                relict darter.
                 The basis for our action. Under the Act, we may determine that a
                species is an endangered species or a threatened species because of any
                of five factors: (A) The present or threatened destruction,
                modification, or curtailment of its habitat or range; (B)
                overutilization for commercial, recreational, scientific, or
                educational purposes; (C) disease or predation; (D) the inadequacy of
                existing regulatory mechanisms; or (E) other natural or manmade factors
                affecting its continued existence. We may reclassify a species if the
                best available commercial and scientific data indicate the species no
                longer meets the applicable definition in the Act. We have determined
                that the relict darter is no longer in danger of extinction throughout
                all or a significant portion of its range and, therefore, does not meet
                the definition of an endangered species. However, it is still affected
                by the following current and ongoing threats to the extent that the
                species meets the definition of a threatened species under the Act:
                 Habitat destruction and modification caused by
                sedimentation, stream channelization, removal of riparian vegetation,
                drainage of riparian wetlands, and point and nonpoint source
                discharges.
                 Drought, accidental spills, and catastrophic events.
                 Low genetic diversity resulting in reduced adaptive
                capacity and the inability to withstand stochastic disturbances.
                 Effects from climate change that are likely to exacerbate
                the impacts of drought, hurricanes, and flooding associated with storms
                and hurricanes in the future.
                 Proposed section 4(d) rule. Under section 4(d) of the Act, we
                propose to prohibit all take of the relict darter and specifically
                tailor the incidental take exceptions under section 9(a)(1) of the Act
                to the species to provide protective mechanisms to State and Federal
                partners so that they may continue with certain activities that are not
                anticipated to cause direct injury or mortality to the relict darter
                and that will facilitate the conservation and recovery of the species.
                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.
                 We particularly seek comments concerning:
                 (1) Reasons we should or should not reclassify the relict darter as
                a threatened species.
                 (2) New information on the historical and current status, range,
                distribution, and population size of the relict darter.
                 (3) New information on the known and potential threats to the
                relict darter, including the species' ability to survive catastrophic
                events, sediment and pollution tolerance, and potential impacts of low
                effective population size and low genetic diversity.
                 (4) New information regarding the life history, ecology, and
                habitat use of the relict darter.
                 (5) Current or planned activities within the geographic range of
                the relict darter that may have adverse impacts or beneficial effects
                on the species.
                 (6) Information on regulations that are necessary and advisable to
                provide for the conservation of the relict darter and that the Service
                can consider in developing a 4(d) rule for the species.
                 (7) Information concerning the extent to which we should include
                any of the section 9 prohibitions in the 4(d) rule or whether any other
                forms of take should be excepted from the prohibitions in the 4(d)
                rule.
                 (8) We also request comments on the draft recovery plan, which is a
                separate effort from the proposed rulemaking.
                 Please include sufficient information with your submission (such as
                scientific journal articles or other publications) to allow us to
                verify any scientific or commercial information you include.
                 Please note that submissions merely stating support for, or
                opposition to, the proposed rule to reclassify the relict darter
                without providing supporting information, although noted, will not be
                [[Page 12058]]
                considered in making a determination on the reclassification, as
                section 4(b)(1)(A) of the Act directs that determinations as to whether
                any species is an endangered or a threatened species must be made
                solely on the basis of the best scientific and commercial data
                available.
                 You may submit your comments and materials concerning this proposed
                rule and draft recovery plan 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 determinations may differ from
                this proposal. Based on the new information we receive (and any
                comments on that new information), we may conclude that the species
                should remain listed as endangered instead of being reclassified as
                threatened, or we may conclude that the species no longer warrants
                listing as either an endangered species or a threatened species. In
                addition, we may change the parameters of the prohibitions or the
                exceptions to those prohibitions if we conclude it is appropriate in
                light of comments and new information received. For example, we may
                expand the prohibitions to include prohibiting additional activities if
                we conclude that those additional activities are not compatible with
                the conservation of the species. Conversely, we may establish
                additional exceptions to the prohibitions in the final rule if we
                conclude that the activities would facilitate or are compatible with
                the conservation and recovery 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 within the range of the species
                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).
                Supporting Documents
                 A species status assessment (SSA) team prepared an SSA report for
                the relict 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 July 1, 1994, peer review policy (59 FR
                34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer
                Review Process, and the Office of Management and Budget's December 16,
                2004, Final Information Quality Bulletin for Peer Review (revised June
                2012), we solicited independent scientific reviews of the information
                contained in the relict darter SSA report. We sent the SSA report to
                three independent peer reviewers and received three responses. Results
                of this structured peer review process can be found as part of the
                docket at https://www.regulations.gov under Docket No. FWS-R4-ES-2021-
                0093. The SSA report was also submitted to our Federal and State
                partners for scientific review. We received review comments from four
                partners, including the Kentucky Department of Fish and Wildlife
                Resources (KDFWR), the Office of Kentucky Nature Preserves (OKNP), the
                U.S. Department of Agriculture's Natural Resources Conservation Service
                (NRCS), and The Nature Conservancy (TNC). In preparing this proposed
                rule, we incorporated the results of these reviews, as appropriate,
                into the final SSA report, which is the foundation for this proposed
                rule and the draft recovery plan.
                Previous Federal Actions
                 The relict darter was proposed for listing as an endangered species
                on December 11, 1992 (57 FR 58774). On December 27, 1993 (58 FR 68480),
                we finalized the listing as endangered due to impacts from water
                quality and habitat deterioration resulting from stream channelization,
                siltation contributed by poor land use practices, and water pollutants.
                Designation of critical habitat was found to be not prudent based on
                the determination that a critical habitat designation was unlikely to
                benefit the relict darter and that designation of critical habitat
                could further threaten the species by exposing the species to increased
                collection and threat of vandalism.
                 On July 31, 1994, we published a technical/agency draft recovery
                plan for the relict darter, which was not finalized. In 2019, as part
                of the Department of the Interior's agency priority goal effort, we
                initiated preparation of a revised draft recovery plan for the relict
                darter. The current draft (Service 2020b, entire) is available for
                review at https://www.regulations.gov under Docket No. FWS-R4-ES-2021-
                0093.
                 We have completed two 5-year reviews for the relict darter. In the
                August 9, 2013, 5-year review, we concluded that no change in relict
                darter status was warranted. However, the August 30, 2019, our 5-year
                review recommended downlisting the relict darter from endangered to
                threatened status based on population size, evidence of reproduction,
                discovery of a new population, and improved habitat conditions.
                Proposed Reclassification Determination
                Background
                 A thorough review of the relict darter's taxonomy, life history,
                and ecology is presented in the SSA report (Service 2020a, pp. 8-15)
                and is summarized below.
                Species Information
                 The relict darter is a small, narrowly endemic, benthic fish that
                occupies the Bayou de Chien stream system in western Kentucky. It can
                be distinguished from other darters by the number of dorsal fin rays
                (bony or cartilaginous spines of first and second fins along top of
                body), its breeding behavior (egg-clustering with parental care), and
                the color and morphology of the dorsal fins of breeding males. Females
                and nonbreeding males have light-tan-colored backs and sides, with
                brown mottling and six to eight dark brown saddles. They have white,
                unmarked undersides. Breeding males have gray to dark brown sides and
                backs and light tan undersides (Page et al. 1992, p. 628).
                [[Page 12059]]
                Taxonomy
                 The relict darter, Etheostoma chienense, is a member of the Class
                Actinopterygii (ray-finned fishes), Order Perciformes, Family Percidae
                (perches), and Tribe Etheostomatini (darters) (Etnier and Starnes 1993,
                pp. 18-25, 440-441). The relict darter was first discovered in the
                Bayou de Chien system in 1975 (Webb and Sisk 1975), reported as E.
                squamiceps, but it was not recognized as a distinct species and
                described until 1992.
                Genetics
                 A population bottleneck and subsequent genetic drift likely explain
                the species' low genetic diversity and low effective population size,
                which is estimated at a mean of 221.5 individuals, lower than what is
                usually sufficient (500) to retain a species' evolutionary potential
                (Soule 1980, pp. 151-169; Kattawar and Piller 2020, entire).
                Agricultural expansion within the Bayou de Chien system during the
                early to mid-20th century, including widespread channelization and
                straightening of stream channels, likely led to a sharp reduction in
                the size of the relict darter population. Populations have likely
                stabilized some over time, but the effects of a population bottleneck
                and subsequent genetic drift appears to have led to low levels of
                genetic diversity across the range. Recent field surveys (2010-2019)
                suggest that relict darters in Little Bayou de Chien are isolated from
                the rest of the system; however, analyses indicate a single panmictic
                population, where random mating occurs among all individuals in the
                Bayou de Chien system (i.e., individuals can interbreed without
                restrictions) (Kattawar and Piller 2020, entire).
                Distribution
                 The relict darter's historical range included the Bayou de Chien
                stream system, a 554-kilometer\2\ (km\2\) (214-mile\2\ (mi\2\))
                watershed located within the Mississippi Valley Loess Plains ecoregion
                (Woods et al. 2002, entire) in Fulton, Graves, and Hickman Counties,
                Kentucky (Webb and Sisk 1975, entire; Warren et al. 1994, entire;
                Piller and Burr 1998, entire). Bayou de Chien is a low-gradient, sand,
                gravel, and silt-bottomed stream that begins in southwestern Graves
                County and flows westward approximately 47 km (29.2 mi) through Hickman
                and Fulton Counties, before ultimately emptying into Obion Creek near
                Hickman, Kentucky. All but the terminal 8-10 km (5.0-6.2 mi) of Bayou
                de Chien have been subjected to extensive channelization, and the
                dominant land use is row-crop agriculture (Webb and Sisk 1975, p. 63).
                Currently, the relict darter continues to occupy portions of the Bayou
                de Chien system in Fulton, Graves, and Hickman counties, Kentucky. The
                species is represented by two geographically isolated populations:
                Bayou de Chien/Jackson Creek and Little Bayou de Chien (Service 2020a,
                p. 20).
                Habitat
                 The species typically occupies slow-flowing runs, glides, or pools
                of small to medium-sized, lowland streams with sand and gravel
                substrates. In these habitats, the species is most commonly observed
                near cover, such as undercut banks, woody debris piles, or snags. An
                abundance of woody debris provides a sufficient supply of spawning
                substrates and, consequently, the highest mean densities of the species
                (Service 2020a, p. 10).
                Biology
                 The species feeds primarily on midge larvae and other small
                invertebrates. Spawning occurs from mid-March to early June, and the
                species has a maximum lifespan of 3 to 4 years. Like all members of the
                Etheostoma squamiceps complex, females deposit eggs on the undersides
                of submerged objects, and egg clusters are guarded by the male until
                hatching occurs (Service 1994, p. 7). During a 1999 survey, most nests
                were located on natural materials such as small rocks, woody debris,
                and live tree roots, but 37 percent of nests were found on
                anthropogenic materials such as rubber tires, plastic, roof shingles,
                glass, concrete blocks, metal road signs, and concrete slabs (Piller
                and Burr 1999, pp. 147-151).
                 The species was characterized as uncommon or rare at most
                collection sites in the 1990s, generally consisting of 1-23 individuals
                per site (Piller and Burr 1998, pp. 66-71). Recent surveys indicate the
                species continues to be rare in some reaches but is more common in
                others. Generally, the greatest number of darters per sampling reach
                and the highest mean densities (0.43 darters/square meter) have been
                observed in Jackson Creek and an approximately 22.6-km (14.1-mi) reach
                of Bayou de Chien (0.30 darters/square meter), extending from just
                downstream of the U.S. 51 bridge crossing in Hickman County upstream to
                the Pea Ridge Road bridge crossing in Graves County (Service 2020a,
                Appendix A).
                Recovery Criteria From Draft Recovery Plan (2020)
                 Section 4(f) of the Act directs us to develop and implement
                recovery plans for the conservation and survival of endangered and
                threatened species unless we determine that such a plan will not
                promote the conservation of the species. Under section 4(f)(1)(B)(ii),
                recovery plans must, to the maximum extent practicable, include
                objective, measurable criteria which, when met, would result in a
                determination, in accordance with the provisions of section 4 of the
                Act, that the species be removed from the Lists of Endangered and
                Threatened Wildlife and Plants.
                 Recovery plans provide a roadmap for us and our partners on methods
                of enhancing conservation and minimizing threats to listed species, as
                well as measurable criteria against which to evaluate progress towards
                recovery and assess the species' likely future condition. However, they
                are not regulatory documents and do not substitute for the
                determinations and promulgation of regulations required under section
                4(a)(1) of the Act. A decision to revise the status of a species, or to
                delist a species, is ultimately based on an analysis of the best
                scientific and commercial data available to determine whether a species
                is no longer an endangered species or a threatened species, regardless
                of whether that information differs from the recovery plan.
                 There are many paths to accomplishing recovery of a species, and
                recovery may be achieved without all of the criteria in a recovery plan
                being fully met. For example, one or more criteria may be exceeded
                while other criteria may not yet be accomplished. In that instance, we
                may determine that the threats are minimized sufficiently and that the
                species is robust enough that it no longer meets the definition of an
                endangered species or a threatened species. In other cases, we may
                discover new recovery opportunities after having finalized the recovery
                plan. Parties seeking to conserve the species may use these
                opportunities instead of methods identified in the recovery plan.
                Likewise, we may learn new information about the species after we
                finalize the recovery plan. The new information may change the extent
                to which existing criteria are appropriate for identifying recovery of
                the species. The recovery of a species is a dynamic process requiring
                adaptive management that may, or may not, follow all of the guidance
                provided in a recovery plan.
                [[Page 12060]]
                 The revised draft recovery plan for the relict darter (Service
                2020b, p. 4) states that the goal of the recovery plan is to ensure the
                long-term viability of the relict darter in the wild to the point that
                it can be removed from the Federal List of Endangered and Threatened
                Wildlife. The draft plan provides two recovery/delisting criteria for
                the relict darter. Both of the recovery criteria have been partially
                met. The following discussion provides an assessment of the recovery
                criteria as they relate to evaluating the status of this species. We
                are seeking review and comment of the draft recovery plan from local,
                State, and Federal agencies, nongovernmental organizations, Tribes, and
                the public (see ADDRESSES and reference Docket No. FWS-R4-ES-2021-
                0093).
                Recovery Criterion 1
                 Criterion 1 states that relict darter populations occupying at
                least five streams, including the Bayou de Chien mainstem, Jackson
                Creek, Little Bayou de Chien, South Fork Bayou de Chien, and one other
                Bayou de Chien tributary exhibit stable or increasing population
                trends, natural recruitment, and multiple age classes.
                 Populations that exhibit a stable or increasing trend, natural
                recruitment, and multiple age classes have higher resiliency and are
                better able to withstand stochastic disturbance. The presence of
                sufficiently resilient populations in multiple tributaries increases
                the species' redundancy, thereby reducing its vulnerability to
                catastrophic events. Conservation of existing relict darter populations
                in the Bayou de Chien and Little Bayou de Chien watersheds will also
                help to maintain the species' current representation, which although
                currently low, maintenance will therefore not reduce the species'
                ability to adapt to changing environmental conditions.
                 The Bayou de Chien/Jackson Creek population of relict darter
                occupies at least six streams, including Bayou de Chien, Jackson Creek,
                Little Bayou de Chien, South Fork Bayou de Chien, Cane Creek, and Sand
                Creek (Service 2020a, p. 20). However, only two of these streams have
                exhibited stable or increasing population trends, recruitment, and
                multiple age classes--Jackson Creek and Bayou de Chien. Recent surveys
                (2017-2018) indicate that estimates of relict darter abundance, mean
                density, and population size continue to be greatest in Jackson Creek
                and middle to headwater reaches of Bayou de Chien (Service 2020a, pp.
                35-36). There is also evidence of reproduction and recruitment in Bayou
                de Chien and Jackson Creek streams, and these trends have remained
                relatively constant or have improved based on surveys completed in the
                past decade (Service 2019, p. 22). Therefore, we conclude that this
                recovery criterion has been partially met.
                Recovery Criterion 2
                 Criterion 2 states that threats have been addressed and/or managed
                in these watersheds to the extent that the species will maintain
                resiliency into the foreseeable future.
                 Under this criterion, cooperative conservation efforts by the
                Service and its partners will reduce existing threats posed by habitat
                disturbance, range curtailment, and past inadequate regulatory
                mechanisms. These threats must be reduced to the extent that there is a
                reasonable expectation the species will maintain resiliency into the
                foreseeable future. Evidence of threat reduction will be demonstrated
                by the species' improved resiliency and redundancy across its range.
                 Since 2002, we have worked with multiple agencies and private
                partners (e.g., NRCS, KDFWR, and TNC) to implement conservation actions
                for the relict darter in the Bayou de Chien system (Service 2020a, p.
                29). Our Partners for Fish and Wildlife (PFW) Program has taken the
                lead role in this effort by providing technical and financial
                assistance to agencies and numerous private landowners. PFW biologists
                have focused their efforts on the use of best management practices
                (BMPs) and instream conservation practices that enhance and restore
                riparian habitats and the instream habitats used by the relict darter.
                PFW projects have included a culvert removal in the headwaters of Bayou
                de Chien, installation of livestock alternate watering systems,
                placement of artificial spawning structures in Bayou de Chien and
                Jackson Creek, installation of livestock exclusion fencing along
                several km of Bayou de Chien and Jackson Creek, and restoration of over
                20.2 hectares (50 acres) of native grasses and wildflowers within
                riparian areas. In addition to these efforts, PFW biologists have
                provided over 10 years of technical assistance to the U.S. Department
                of Agriculture, Wetland Reserve Easement Program, for projects within
                the Bayou de Chien system (Radomski 2019, pers. comm.).
                 While some of the stream habitats within the Bayou de Chien
                watershed have improved since the time of the listing of the relict
                darter, the improvements are often localized, and several threats
                remain. The species continues to be impacted by sedimentation,
                pollution, a limited range and linear distribution, and low genetic
                diversity (Service 2020a, pp. 37-38). Therefore, we consider this
                recovery criterion to be partially met.
                Regulatory and Analytical Framework
                Regulatory Framework
                 Section 4 of the Act (16 U.S.C. 1533) and its implementing
                regulations (50 CFR part 424) set forth the procedures for determining
                whether a species is an ``endangered species'' or a ``threatened
                species.'' The Act defines an endangered species as a species that is
                in danger of extinction throughout all or a significant portion of its
                range, and a threatened species as a species that is likely to become
                an endangered species within the foreseeable future throughout all or a
                significant portion of its range. The Act requires that we determine
                whether any species is an ``endangered species'' or a ``threatened
                species'' because of any of the following factors:
                 (A) The present or threatened destruction, modification, or
                curtailment of its habitat or range;
                 (B) Overutilization for commercial, recreational, scientific, or
                educational purposes;
                 (C) Disease or predation;
                 (D) The inadequacy of existing regulatory mechanisms; or
                 (E) Other natural or manmade factors affecting its continued
                existence.
                 These factors represent broad categories of natural or human-caused
                actions or conditions that could affect a species' continued existence.
                In evaluating these actions and conditions, we look for those that may
                have a negative effect on individuals of the species, as well as other
                actions or conditions that may ameliorate any negative effects or may
                have positive effects. We consider these same five factors in
                reclassifying a species from endangered to threatened (50 CFR
                424.11(c)-(e)).
                 We use the term ``threat'' to refer in general to actions or
                conditions that are known to or are reasonably likely to negatively
                affect individuals of a species. The term ``threat'' includes actions
                or conditions that have a direct impact on individuals (direct
                impacts), as well as those that affect individuals through alteration
                of their habitat or required resources (stressors). The term ``threat''
                may encompass--either together or separately--the source of the action
                or condition or the action or condition itself.
                 However, the mere identification of any threat(s) does not
                necessarily mean that the species meets the statutory
                [[Page 12061]]
                definition of an ``endangered species'' or a ``threatened species.'' In
                determining whether a species meets either definition, we must evaluate
                all identified threats by considering the species' expected response
                and the effects of the threats--in light of those actions and
                conditions that will ameliorate the threats--on an individual,
                population, and species level. We evaluate each threat and its expected
                effects on the species, then analyze the cumulative effect of all of
                the threats on the species as a whole. We also consider the cumulative
                effect of the threats in light of those actions and conditions that
                will have positive effects on the species--such as any existing
                regulatory mechanisms or conservation efforts. The Secretary determines
                whether the species meets the definition of an ``endangered species''
                or a ``threatened species'' only after conducting this cumulative
                analysis and describing the expected effect on the species now and in
                the foreseeable future.
                 The Act does not define the term ``foreseeable future,'' which
                appears in the statutory definition of ``threatened species.'' Our
                implementing regulations at 50 CFR 424.11(d) set forth a framework for
                evaluating the foreseeable future on a case-by-case basis. The term
                foreseeable future extends only so far into the future as we can
                reasonably determine that both the future threats and the species'
                responses to those threats are likely. In other words, the foreseeable
                future is the period of time in which we can make reliable predictions.
                ``Reliable'' does not mean ``certain''; it means sufficient to provide
                a reasonable degree of confidence in the prediction. Thus, a prediction
                is reliable if it is reasonable to depend on it when making decisions.
                 It is not always possible or necessary to define foreseeable future
                as a particular number of years. Analysis of the foreseeable future
                uses the best scientific and commercial data available and should
                consider the timeframes applicable to the relevant threats and to the
                species' likely responses to those threats in view of its life-history
                characteristics. Data that are typically relevant to assessing the
                species' biological response include species-specific factors such as
                lifespan, reproductive rates or productivity, certain behaviors, and
                other demographic factors.
                Analytical Framework
                 The SSA report documents the results of our comprehensive
                biological review of the best scientific and commercial data regarding
                the status of the species, including an assessment of the potential
                threats to the species. The SSA report does not represent our decision
                on whether the species should be reclassified as a threatened species
                under the Act. It does, however, provide the scientific basis that
                informs our regulatory decisions, which involve the further application
                of standards within the Act and its implementing regulations and
                policies.
                 To assess relict darter viability, we used the three conservation
                biology principles of resiliency, redundancy, and representation
                (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
                ability of the species to withstand environmental and demographic
                stochasticity (for example, wet or dry, warm or cold years); redundancy
                supports the ability of the species to withstand catastrophic events
                (for example, droughts, large pollution events), and representation
                supports the ability of the species to adapt over time to long-term
                changes in the environment (for example, climate changes). In general,
                the more resilient and redundant a species is and the more
                representation it has, the more likely it is to sustain its populations
                over time, even under changing environmental conditions. Using these
                principles, we identified the species' ecological requirements for
                survival and reproduction at the individual, population, and species
                levels, and described the beneficial and risk factors influencing the
                species' viability.
                 The SSA process can be categorized into three sequential stages.
                During the first stage, we evaluated the species' ecological and life-
                history needs. The next stage involved an assessment of the historical
                and current condition of the species' demographics and habitat
                characteristics, including an explanation of how the species arrived at
                its current condition. The final stage of the SSA involved making
                predictions about the species' responses to positive and negative
                environmental and anthropogenic influences. Throughout all of these
                stages, we used the best available information to characterize
                viability as the ability of the species to sustain its populations in
                the wild over time. We use this information to inform our regulatory
                decision. The following is a summary of the key results and conclusions
                from the SSA report; the full SSA report can be found at Docket No.
                FWS-R4-ES-2021-0093 on https://www.regulations.gov.
                Summary of Biological Status and Threats
                 In this section, we review the biological condition of the species
                and its resources, and we evaluate threats influencing the species'
                current and future condition. These assessments allow us to assess the
                species' overall viability and the risks to that viability.
                Factors Influencing Relict Darter Viability
                 At the time of listing in 1993, the relict darter was known only
                from the Bayou de Chien mainstem and Jackson Creek, but it was later
                discovered in the Little Bayou de Chien in 2017 (Service 2019, p. 11).
                Threats to the species at the time of listing were water quality and
                habitat deterioration resulting from stream channelization, siltation
                contributed by incompatible land use practices, and water pollutants
                from waste discharges. Relict darter distribution was reduced by these
                factors, and because the species was known to inhabit only limited
                areas and known to spawn in only one small tributary, it was deemed
                vulnerable to extirpation from toxic chemical spills (58 FR 68481,
                December 27, 1993). Additionally, because of its small population size,
                the species' long-term genetic viability was determined questionable at
                the time of listing.
                 While the relict darter's viability has improved over time (see
                Conservation Efforts), three major factors are influencing the
                viability of the species now and are expected to affect it into the
                future: Habitat loss and degradation, restricted range/isolation, and
                climate change. Habitat loss and degradation resulting from siltation,
                channelization/riparian vegetation removal, drainage of riparian
                wetlands, and water quality degradation (pollution) (Factor A) pose the
                largest risk to the current and future viability of the relict darter.
                Other potential stressors to the species are the restricted range of
                the species and climate change (Factor E). We find the species does not
                face threats from overutilization (Factor B), disease or predation
                (Factor C), or invasive species (Factor E). A brief summary of relevant
                stressors is presented below; for a full description, refer to chapter
                3 of the SSA report (Service 2020a, entire).
                Siltation
                 Siltation is the process whereby excess sediments are suspended or
                deposited in a stream. Excessive levels of sediment accumulate and
                cover the stream bottom, filling the interstitial spaces with finer
                substrates and homogenizing and decreasing the available habitat for
                fishes. In severe cases, sediment can bury larger substrate particles
                such as gravel and cobble, as well as woody debris. Siltation can
                abrade or suffocate fish
                [[Page 12062]]
                gills, eggs, and larvae; reduce disease tolerance; degrade or destroy
                spawning habitats, affecting egg, larval, and juvenile development;
                modify migration patterns; reduce food availability through the
                blockage of primary production; and reduce foraging efficiency (Berkman
                and Rabeni 1987, pp. 285-294; Waters 1995, pp. 5-7; Wood and Armitage
                1997, pp. 211-212; Meyer and Sutherland 2005, pp. 2-3). Thus, siltation
                is a threat to all life stages of relict darter. In addition, relict
                darter spawning substrates are usually the undersides of fixed objects
                (e.g., wood, tree roots, cobble, tires) and are vulnerable to the
                effects of siltation (i.e., embeddedness, or being completely covered
                in sediment) (Service 2020a, p. 14).
                 Sediment (siltation) is one of the most common stressors of aquatic
                communities in the Bayou de Chien system (Kentucky Division of Water
                (KDOW) 2018, pp. 43-45). The primary sources of sediment are as
                agriculture (crop production) and habitat impacts (channel erosion/
                incision from upstream hydromodifications, dredging, and loss of
                riparian habitat). The Bayou de Chien system is extensively farmed
                (e.g., row crops and livestock), and a large portion of the system has
                been deforested. These land use practices result in a high silt load
                within the system that continues to degrade habitats and impact the
                species. Croplands have the potential to contribute large sediment
                loads during storm events, thereby causing increased siltation and
                potentially introducing harmful agricultural pollutants such as
                herbicides and pesticides. Unrestricted livestock access to streams has
                the potential to cause siltation and other habitat disturbance (Fraley
                and Ahlstedt 2000, pp. 193-194). Grazing may reduce water infiltration
                rates and increase stormwater runoff; trampling and vegetation removal
                increase the probability of erosion and siltation (Brim Box and Mossa
                1999, p. 103). Physical habitat disturbance from sedimentation is less
                common in Jackson Creek than in other portions of the Bayou de Chien
                system.
                 Several streams within the Bayou de Chien system have been
                identified as impaired due to siltation and have been included by the
                State of Kentucky on its list of impaired waters required under section
                303(d) of the Clean Water Act (33 U.S.C. 1313(d)) (KDOW 2018, pp. 43-
                45). Portions of several streams occupied by the relict darter are on
                this list, including Cane Creek (stream km 0-8.5 (stream mi 0-5.3)) in
                Hickman County, Little Bayou de Chien (stream km 1.8-3.8 and 18.8-22.5
                (stream mi 1.1-2.4 and 11.7-14.0)) in Fulton and Hickman Counties, and
                South Fork Bayou de Chien (stream km 0-12.6 (stream mi 0-7.8)) in
                Graves County.
                Channelization/Riparian Vegetation Removal
                 Stream channelization is a common practice used to reduce the
                effects of flooding, increase the drainage rate of agricultural land,
                and maximize the amount of tillable land (Piller and Burr 1998, p. 65).
                These modified channels are often managed through vegetation removal
                and dredging to improve flood conveyance or through placement of
                quarried stone or gabion baskets to protect against bank erosion (Allan
                and Castillo 2007, p. 327).
                 Historically, Bayou de Chien was presumably a free-flowing stream
                with alternating areas of riffles, runs, and pools. Since that time,
                many stream reaches within the system have been channelized and
                converted to deep ditches with uniform depth, velocity, and substrate
                (Piller and Burr 1998, p. 71). Channelization has impacted the Bayou de
                Chien system by changing stream flow patterns including reducing
                instream flows (especially during drier periods) that stress relict
                darters, decreasing aquatic habitat complexity, which affects
                sheltering and feeding for relict darters, and reducing stream bank and
                floodplain (riparian) vegetation (Piller and Burr 1998, p. 71), which
                affects relict darter feeding and breeding resource needs. Channelized
                reaches have higher stream velocities and shear stress (a measure of
                the force of water against the channel boundary) during high flow
                periods (which leads to channel instability and bank erosion), less
                instream cover and habitat for aquatic organisms including relict
                darter (decreased habitat complexity), less riparian vegetation and
                correspondingly reduced canopies (reduced shade and reduced woody
                debris input), and below normal flows during drier periods (Warren et
                al. 1994, p. 24; Piller and Burr 1998, p. 71). Thus, the relict darter
                is susceptible to impacts from channelization and reductions in
                riparian vegetation because these stressors affect flows, habitat
                complexity, and instream temperatures and reduce the amount of woody
                material, thus affecting sheltering and reproduction needs of the
                species.
                 The reduction or loss of riparian vegetation contributes to
                siltation through bank destabilization and the removal of submerged
                root systems that help to hold sediments in place while providing
                habitat for relict darters and their macroinvertebrate prey (Barling
                and Moore 1994, p. 544; Beeson and Doyle 1995, p. 989; Allan 2004, p.
                262; Hauer and Lamberti 2006, pp. 721-723; Minshall and Rugenski 2006,
                pp. 721-723). Removal of riparian vegetation can also reduce the
                stream's capacity for trapping and removing contaminants and nutrients
                from runoff; increase solar exposure, resulting in higher water
                temperatures; increase algal abundance (primary production); and reduce
                inputs of woody debris and leaf litter, thereby reducing food sources
                for relict darters and lowering overall stream production (Brazier and
                Brown 1973, p. 4; Karr and Schlosser 1978, p. 231; Peterjohn and
                Correll 1984, p. 1473; Osborne and Kovacic 1993, p. 255; Barling and
                Moore 1994, p. 555; Vought et al. 1994, p. 346; Allan 1995, p. 109;
                Wallace et al. 1999, p. 429; Pusey and Arthington 2003, p. 4). Where a
                reduction or loss of riparian vegetation occurs, these impacts
                negatively affect the quality of habitat available to the relict darter
                for breeding, feeding, and sheltering.
                Drainage of Riparian Wetlands
                 With increased agricultural activity in the Bayou de Chien basin
                over the last century, much of the basin's vegetation has been cleared,
                and many riparian wetlands have been drained to make additional lands
                available for farming (Piller and Burr 1998, p. 65). This situation has
                caused an overall reduction in the groundwater level and base flows
                within Bayou de Chien and its tributaries. Many small streams in the
                system have completely dried or consisted of isolated pools by the
                early fall months (Warren et al. 1994, p. 24). These conditions serve
                to isolate populations and subject both the adult and juvenile relict
                darters to increased pressure from predators (Service 1994, p. 14).
                Dispersal of the species upstream of the Jackson Creek area or into
                many downstream tributaries may be limited by instream flow conditions
                (Warren et al. 1994, p. 24).
                Water Quality Degradation (Pollution)
                 Information is lacking on the relict darter's tolerance to specific
                pollutants, but a variety of contaminants continue to degrade stream
                water quality within the Bayou de Chien drainage, and these pollutants
                may affect the relict darter. Several point-source and nonpoint-source
                pollutants to aquatic life occur in the Bayou de Chien (Service 2020a,
                Appendix B) (KDOW 2018, pp. 43-45). These pollutants include copper,
                iron, lead, excess nutrients (total nitrogen and phosphorus), and
                eutrophication originating from two suspected sources--municipal point
                source discharges (e.g., sewage treatment) and agriculture (e.g., crop
                production and
                [[Page 12063]]
                animal feeding operations). Portions of four streams that are occupied
                by relict darter, specifically Bayou de Chien, Cane Creek, Little Bayou
                de Chien, and South Fork Bayou de Chien, were identified as impaired
                due to these pollutants (KDOW 2018, pp. 43-45). The impacts of copper,
                lead, and iron inputs are unknown, but nutrient inputs and
                eutrophication can lead to excessive algal growths and instream oxygen
                deficiencies that can seriously impact aquatic species, including the
                relict darter.
                 Currently, 13 National Pollutant Discharge Elimination System
                permits have been issued authorizing the discharge of pollutants within
                portions of the Bayou de Chien system (Fredenberg 2018, pers. comm.;
                Service 2020a, p. 27). Two sewage treatment plants, the City of Fulton
                Treatment Works (Kentucky Pollutant Discharge Elimination System
                (KPDES) #KY0026913) and the Hickman East Sewage Treatment Plant (KPDES
                #KY0028436), discharge treated wastewater directly into Bayou de Chien.
                Between January 2010 and April 2020, the Fulton facility received 13
                violation notices from KDOW. The notices were issued for permit
                exceedances of a variety of chemical parameters (e.g., Biochemical
                Oxygen Demand (BOD), Total Suspended Solids (TSS), pH) and for failures
                to meet certain monitoring requirements associated with the permit
                (Service 2020a, Appendix C). Insufficient treatment of wastewater could
                harm relict darter populations by introducing pollutants (e.g., metals,
                bacteria) and altering water quality conditions (e.g., decreased oxygen
                levels, elevated pH).
                 The Bayou de Chien system is also affected by nonpoint-source
                pollutants, arising from a variety of diffuse sources. Examples of
                nonpoint-source pollutants include sediment (e.g., stormwater runoff
                from driveways, fields, construction sites), raw sewage (e.g., septic
                tank leakage, straight pipe discharges), animal waste from livestock,
                fertilizers, pesticides, herbicides, and road salt (KDOW 2013, pp. 19-
                21; KDOW 2018, pp. 43-45). Nonpoint-source pollutants can cause excess
                nutrification (increased levels of nitrogen and phosphorus), excessive
                algal growths that clog the waterway and affect swimming capability and
                visual predation, instream oxygen deficiencies that affect oxygen
                intake by relict darters, and other changes in water chemistry that can
                impact aquatic species such as the relict darter. Nonpoint-source
                pollution from land surface runoff can originate from virtually any
                land use activity and has been correlated with impervious surfaces and
                storm water runoff (Allan 2004, pp. 266-267). Pollutants may include
                sediments, fertilizers, herbicides, pesticides, animal wastes, septic
                tank and gray water leakage, pharmaceuticals, and petroleum products.
                These pollutants tend to increase concentrations of nutrients and
                toxins in the water and alter the chemistry of affected streams such
                that the habitat and food sources for species like the relict darter
                are negatively impacted.
                 Due to its linear distribution within the Bayou de Chien mainstem
                and Jackson Creek, the relict darter continues to be vulnerable to
                accidental chemical or animal waste spills and releases that may result
                from traffic accidents, agricultural activities, or permitted
                discharges (Warren et al.1994, p. 24). Events of this kind have
                affected other aquatic communities in the Southeastern United States
                during the recent past (Ahlstedt et al. 2016, pp. 8-9), so similar
                events have the potential to affect relict darter populations in the
                Bayou de Chien system. These events could have devastating effects on
                darters in these reaches (Piller and Burr 1996, p. 74) and could pose a
                threat to the long-term viability of the species.
                Restricted Range/Isolation
                 The relict darter has always had a limited geographic range,
                currently consisting of approximately 52.5 stream km (32.7 stream mi)
                within a single stream system in western Kentucky (Bayou de Chien
                system). The species was characterized as uncommon or rare at most
                collection sites in the 1990s (Piller and Burr 1998, pp. 66-71), and
                recent surveys indicate the species continues to be rare in some
                reaches but is more common in others.
                 The species' restricted range and low abundance in some reaches
                (e.g., Little Bayou de Chien and Cane Creek) make it more vulnerable to
                extirpation from toxic chemical spills, habitat modification,
                degradation from land surface runoff (nonpoint-source pollution), and
                natural catastrophic changes to their habitat (e.g., flood scour,
                drought). In particular, recent survey data indicate that the relict
                darter's most successful reproduction occurs in Jackson Creek and
                middle and headwater reaches of Bayou de Chien, which are vulnerable to
                stochastic events, such as a single toxic chemical spill or an extreme
                weather event such as a drought or flash flood. These events could have
                devastating effects on darters in these reaches (Piller and Burr 1996,
                p. 74) and could pose a threat to the long-term viability of the
                species.
                 The relict darter is represented by two geographically isolated
                populations: Bayou de Chien/Jackson Creek and Little Bayou de Chien
                (Service 2020a, p. 20). The fact that the Little Bayou de Chien
                population is small and isolated from the larger Bayou de Chien/Jackson
                Creek population makes it more vulnerable to stochastic and
                catastrophic events, thus affecting overall relict darter viability.
                Climate Change
                 Species that are dependent on specialized habitat types, limited in
                distribution, or at the extreme periphery of their range may be most
                susceptible to the impacts of climate change (Byers and Norris 2011,
                pp. 18-19); however, while continued change is certain, the magnitude
                and rate of change is unknown in many cases. Climate change has the
                potential to increase the vulnerability of the relict darter to random
                catastrophic events (McLaughlin et al. 2002, pp. 6060-6074; Thomas et
                al. 2004, pp. 145-148). An increase in both severity and variation in
                climate patterns is expected; extreme floods, strong storms, and
                droughts will become more common (Cook et al. 2004, pp. 1015-1018; Ford
                et al. 2011, p. 2065; Intergovernmental Panel on Climate Change 2014,
                pp. 58-83). Frequency, duration, and intensity of droughts are likely
                to increase in the Southeast as a result of global climate change
                (Thomas et al. 2004, pp. 145-148). Stream temperatures in the Southeast
                have increased roughly 0.2-0.4 degrees Celsius ([deg]C) (0.4-0.7
                degrees Fahrenheit ([deg]F)) per decade over the past 30 years, and as
                air temperature is a strong predictor of water temperature, stream
                temperatures are expected to continue to rise (Kaushal et al. 2010, p.
                465). Predicted impacts of climate change on fishes include disruption
                to their physiology (such as temperature tolerance, dissolved oxygen
                needs, and metabolic rates), life history (such as timing of
                reproduction, growth rate), and distribution (range shifts, migration
                of new predators) (Jackson and Mandrak 2002, pp. 89-98; Heino et al.
                2009, pp. 41-51; Strayer and Dudgeon 2010, pp. 350-351; Comte et al.
                2013, pp. 627-636).
                 Estimates of the effects of climate change using available climate
                models typically lack the geographic precision needed to project the
                magnitude of effects at a scale small enough to discretely apply to the
                range of a given species. However, data on recent trends and projected
                changes for Kentucky (Girvetz et al. 2009, pp. 1-19), and, more
                specifically, the Bayou de Chien system (Alder and Hostetler 2017,
                [[Page 12064]]
                entire) provide some insight for evaluating the potential impacts of
                climate change to the relict darter. Different emission scenarios have
                been used to calculate estimates of average annual increases in maximum
                and minimum air temperature, precipitation, snowfall, and other
                variables (Alder and Hostetler 2017, entire). These scenarios, called
                representative concentration pathways (RCPs), are plausible pathways
                toward reaching a target radiative forcing (the change in energy in the
                atmosphere due to greenhouse gases) by the year 2100 (Moss et al. 2010,
                p. 752). Depending on the chosen model and emission scenario (RCP8.5
                (high) vs. 4.5 (moderate)), annual mean maximum air temperatures for
                the Bayou de Chien system are expected to increase by 2.3-3.4 [deg]C
                (4.1-6.1 [deg]F) by 2074, while precipitation models predict that the
                Bayou de Chien system will experience a slight increase in annual mean
                precipitation (0.5 centimeters/month (0.2 inches/month)) through 2074
                (Girvetz et al. 2009, pp. 1-19; Alder and Hostetler 2016, pp. 1-9).
                 There is uncertainty about the specific effects of climate change
                (and their magnitude) on the relict darter; however, climate change is
                almost certain to affect aquatic habitats in the Bayou de Chien system
                of western Kentucky through increased water temperatures and more
                frequent droughts (Alder and Hostetler 2017, entire), and species with
                limited ranges, fragmented distributions, and small population size,
                such as the relict darter, are thought to be especially vulnerable to
                the effects of climate change (Byers and Norris 2011, pp. 18-19). Thus,
                we consider climate change to be a threat to the relict darter.
                Regulatory Mechanisms
                 The relict darter and its habitats are afforded some protection
                from water quality and habitat degradation under the Clean Water Act,
                Kentucky's Forest Conservation Act of 1998 (KRS Sec. Sec. 149.330-
                355), Kentucky's Agriculture Water Quality Act of 1994 (KRS Sec. Sec.
                224.71-140), and additional Kentucky statutes and regulations regarding
                natural resources and environmental protection (KRS Sec. 224; 401 KAR
                Sec. Sec. 5:026, 5:031). While it is clear that the protections
                afforded by these statutes and regulations have not prevented the
                degradation of some habitats used by the relict darter, the species has
                undoubtedly benefited from improvements in water quality and habitat
                conditions stemming from these regulatory mechanisms.
                Conservation Efforts
                 The relict darter is listed as endangered in Kentucky (OKNP 2019,
                p. 16), making it unlawful to take the species or damage its habitat
                without a State permit. Additionally, the relict darter is identified
                as a species of greatest conservation need in the Kentucky Wildlife
                Action Plan (KDFWR 2013, Chapter 2), which outlines actions to promote
                species conservation.
                 Since listing the species, the Service has worked with multiple
                agencies and private partners (e.g., NRCS, KDFWR, and TNC) to implement
                conservation actions for the relict darter in the Bayou de Chien
                system. The Service's PFW Program has taken the lead role in this
                effort by providing technical and financial assistance to agencies and
                numerous private landowners. PFW has focused its efforts on the use of
                best management practices (BMPs) and instream conservation practices
                that enhance and restore riparian and instream habitats used by the
                relict darter. PFW projects have included a culvert removal in the
                headwaters of Bayou de Chien, installation of livestock alternate
                watering systems, placement of artificial spawning structures in Bayou
                de Chien and Jackson Creek, installation of livestock exclusion fencing
                along several kilometers of Bayou de Chien and Jackson Creek, and
                restoration of more than 20.2 hectares (50 acres) of native grasses and
                wildflowers within riparian areas. In addition to these efforts, PFW
                biologists have provided over 10 years of technical assistance to the
                U.S. Department of Agriculture, Wetland Reserve Easement Program, for
                projects within the Bayou de Chien system (Radomski 2019, pers. comm.).
                These efforts have resulted in permanent easements covering more than
                1,700 acres (688 hectares) in the upper Bayou de Chien system (Morris
                2020, pers. comm.). These easements will benefit the relict darter
                through sediment and nutrient reduction, shading of stream corridors
                (via riparian plantings), hydrological restoration (via plugging of
                agricultural ditches and improved groundwater connections), and general
                habitat creation, or wetland restoration.
                Species Viability
                 For relict darter populations to be sufficiently resilient, the
                needs of individuals (slow-flowing riffles and pools, appropriate
                substrate, food availability, water quality, and aquatic vegetation or
                large woody debris for cover) must be met at a larger scale. Stream
                reaches with suitable habitat must be large enough to support an
                appropriate number of individuals to avoid issues associated with small
                population size, such as inbreeding depression and the Allee effect
                (low population density reducing the probability of encountering mates
                for spawning). Connectivity of stream reaches allows for immigration
                and emigration between populations and increases the likelihood of
                recolonization should a population be lost. At the species level, the
                relict darter needs well-distributed healthy populations to withstand
                environmental stochasticity (resiliency) and catastrophes (redundancy)
                and adapt to biological and physical changes in its environment
                (representation). To evaluate the current and future viability of the
                relict darter, we assessed a range of conditions to allow us to
                estimate the species' resiliency, representation, and redundancy.
                 We delineated analytical units (populations) by dividing the relict
                darter's range into two units (Bayou de Chien/Jackson Creek and Little
                Bayou de Chien) based on known occurrence records, the substantial
                distance (18.3 kilometers (km) (11.4 miles (mi)) separating known
                occurrence records in both watersheds, and unsuitable habitat
                conditions in downstream reaches of both watersheds.
                 To assess resiliency, we evaluated four components that relate to
                the species' habitat or its population demography: Physical habitat,
                water quality, mean density, and occurrence complexity. We assessed
                habitat using two components describing physical habitat quality and
                water quality. The demographic condition was assessed using mean
                density and occurrence complexity. We established parameters for each
                condition category by evaluating the range of existing data and
                separating those data into categories based on our understanding of the
                species' demographics and habitat (table 1, below). Individual
                component scores were combined and averaged to produce an overall
                condition score for each population.
                [[Page 12065]]
                 Table 1--Component Conditions Used To Assess Resiliency for Relict Darter Populations
                ----------------------------------------------------------------------------------------------------------------
                 Condition
                 Component ----------------------------------------------------------------------------------
                 High Moderate Low 0
                ----------------------------------------------------------------------------------------------------------------
                Physical Habitat............. Silt deposition low; Silt deposition Silt deposition Habitats
                 no extensive or moderate; habitat extensive; habitats unsuitable
                 significant habitat alterations at severely altered (species
                 alterations (e.g., moderate levels-- and recognized as absent).
                 recent channelization or impacting the
                 channelization, other habitat species; 75% of available widespread; 25-75% for the species.
                 habitat suitable of available
                 for the species. habitat suitable
                 for the species.
                Water Quality................ Minimal or no known WQ issues recognized WQ issues prevalent Habitat
                 water quality (WQ) and may impact within system, unsuitable
                 issues (i.e., no species (i.e., 1-2 likely impacting (species
                 303(d) streams 303(d) streams). populations (i.e., absent).
                 impacting the numerous 303(d)
                 species *). streams).
                Mean Density (# darters/m\2\) >0.15............... 0.05-0.15........... =3 channel and maximum channel and maximum
                 tributaries. of 2 tributaries. of Channel restoration or improvement projects that create
                natural, physically stable, ecologically functioning streams (or stream
                and wetland systems) that are reconnected with their groundwater
                aquifers and, if the projects involve known relict darter spawning
                habitat, take place between June 30 and March 1. These projects can be
                accomplished using a variety of methods, but the desired outcome is a
                natural channel with low shear stress (force of water moving against
                the channel); bank heights that enable reconnection to the floodplain;
                a reconnection of surface and groundwater systems, resulting in
                perennial flows in the channel; riffles and pools composed of existing
                soil, rock, and wood instead of large imported materials; low
                compaction of soils within adjacent riparian areas; and inclusion of
                riparian wetlands.
                 Streambank stabilization projects that use bioengineering
                methods to replace preexisting, bare, eroding stream banks with
                vegetated, stable stream banks, thereby reducing bank erosion and
                instream sedimentation and improving habitat conditions for the
                species. Stream banks may be stabilized using native live stakes (live,
                vegetative cuttings inserted or tamped into the ground in a manner that
                allows the stake to take root and grow), native live fascines (live
                branch cuttings, usually willows, bound together into long, cigar-
                shaped bundles), or brush layering (cuttings or branches of easily
                rooted tree species layered between successive lifts of soil fill).
                Stream banks must not be stabilized through the use of quarried rock
                (rip-rap) or the use of rock baskets or gabion structures.
                 Bridge and culvert replacement/removal projects or low
                head dam removal projects that remove migration barriers or generally
                allow for improved upstream and downstream movements of relict darters
                while maintaining normal stream flows, preventing bed and bank erosion,
                and improving habitat conditions for the species.
                 Transportation projects that incorporate State-approved
                BMPs that eliminate sedimentation, do not block stream flow, do not
                channelize streams, and that are for the purposes of providing for fish
                passage under a wide range of hydrologic conditions at stream crossings
                (University of Kentucky Transportation Center 2009, entire).
                 Projects carried out in the species' range by the U.S.
                Department of Agriculture's Natural Resources Conservation Service that
                do not alter habitats known to be used by the relict darter beyond the
                fish's tolerances.
                 Nothing in this proposed 4(d) rule would change in any way the
                recovery planning provisions of section 4(f) of the Act, the
                consultation requirements under section 7 of the Act, or the ability of
                the Service to enter into partnerships for the management and
                protection of the relict darter. However, interagency cooperation may
                be further streamlined through planned programmatic consultations for
                the species between Federal agencies and the Service, where
                appropriate. We ask the public, particularly State agencies and other
                interested stakeholders that may be affected by the proposed 4(d) rule,
                to provide comments and suggestions regarding additional guidance and
                methods that the Service could provide or use, respectively, to
                streamline the implementation of this proposed 4(d) rule (see
                Information Requested).
                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.
                National Environmental Policy Act (42 U.S.C. 4321 et seq.)
                 We have determined that environmental assessments and environmental
                impact statements, as defined under the authority of the National
                Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
                prepared in connection with determining a species' listing status under
                the Endangered Species Act. We published a notice outlining our reasons
                for this determination in the Federal Register on October 25, 1983 (48
                FR
                [[Page 12072]]
                49244). We also determine that 4(d) rules that accompany regulations
                adopted pursuant to section 4(a) of the Act are not subject to the
                National Environmental Policy Act.
                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. There are no known Tribes within the
                range of the relict darter.
                References Cited
                 A complete list of references cited in this proposed rulemaking is
                available on the internet at https://www.regulations.gov.
                Authors
                 The primary authors of this proposed rule are the staff members of
                the Fish and Wildlife Service's Species Assessment Team and the
                Kentucky 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, relict'' under Fishes on 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, relict.................. Etheostoma Wherever found.... T 58 FR 68480, 12/27/
                 chienense. 1993; [Federal
                 Register citation of
                 the final rule]; 50
                 CFR 17.44(hh) \4d\.
                
                 * * * * * * *
                ----------------------------------------------------------------------------------------------------------------
                0
                3. Further amend Sec. 17.44, as proposed to be amended on November 19,
                2020, at at 85 FR 74050, on November 12, 2020, at 85 FR 71859, and on
                July 7, 2021, at 86 FR 35708, by adding a paragraph (hh) to read as
                follows:
                Sec. 17.44 Special rules--fishes.
                * * * * *
                 (hh) Relict darter (Etheostoma chienense).
                 (1) Prohibitions. The following prohibitions that apply to
                endangered wildlife also apply to relict darter. Except as provided
                under paragraph (hh)(2) of this section and Sec. Sec. 17.4 and 17.5,
                it is unlawful for any person subject to the jurisdiction of the United
                States to commit, to attempt to commit, to solicit another to commit,
                or cause to be committed, any of the following acts in regard to this
                species:
                 (i) Import or export, as set forth at Sec. 17.21(b) for endangered
                wildlife.
                 (ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
                wildlife.
                 (iii) Possession and other acts with unlawfully taken specimens, as
                set forth at Sec. 17.21(d)(1) for endangered wildlife.
                 (iv) Interstate or foreign commerce in the course of commercial
                activity, as set forth at Sec. 17.21(e) for endangered wildlife.
                 (v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
                endangered wildlife.
                 (2) Exceptions from prohibitions. In regard to this species, you
                may:
                 (i) Conduct activities as authorized by a permit under Sec. 17.32.
                 (ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
                endangered wildlife.
                 (iii) Take as set forth at Sec. 17.31(b).
                 (iv) Take incidental to an otherwise lawful activity caused by:
                 (A) Channel restoration or improvement projects that create
                natural, physically stable, ecologically functioning streams (or stream
                and wetland systems) that are reconnected with their groundwater
                aquifers and, if the projects involve known relict darter spawning
                habitat, that take place between June 30 and March 1. These projects
                can be accomplished using a variety of methods, but the desired outcome
                is a natural channel with low shear stress (force of water moving
                against the channel); bank heights that enable reconnection to the
                floodplain; a reconnection of surface and groundwater systems,
                resulting in perennial flows in the channel; riffles and pools composed
                of existing soil, rock, and wood instead of large imported materials;
                low compaction of soils within adjacent riparian areas; and inclusion
                of riparian wetlands.
                 (B) Streambank stabilization projects that use bioengineering
                methods to replace preexisting, bare, eroding stream banks with
                vegetated, stable stream banks, thereby reducing bank erosion and
                instream sedimentation and improving habitat conditions for the species
                and, if the projects involve known relict darter spawning habitat, that
                take place between June 30 and March 1. Stream banks may be stabilized
                using native live stakes (live, vegetative cuttings inserted or tamped
                into the ground in a manner that allows the stake to take root and
                grow), native live fascines (live branch cuttings, usually willows,
                bound together into long, cigar-shaped bundles), or brush layering
                (cuttings or branches of easily
                [[Page 12073]]
                rooted tree species layered between successive lifts of soil fill).
                Stream banks must not be stabilized through the use of quarried rock
                (rip-rap) or the use of rock baskets or gabion structures.
                 (C) Bridge and culvert replacement/removal projects or low head dam
                removal projects that remove migration barriers or generally allow for
                improved upstream and downstream movements of relict darters while
                maintaining normal stream flows, preventing bed and bank erosion, and
                improving habitat conditions for the species, if completed between June
                30 and March 1.
                 (D) Transportation projects that follow best management practices
                that eliminate sedimentation, do not block stream flow, do not
                channelize streams, and provide for fish passage under a wide range of
                hydrologic conditions at stream crossings and that are done between
                June 30 and March 1.
                 (E) Projects carried out in the species' range by the Natural
                Resources Conservation Service, U.S. Department of Agriculture, that:
                 (1) Do not alter habitats known to be used by the relict darter
                beyond the fish's tolerances; and
                 (2) Are performed between June 30 and March 1 to avoid the time
                period when the relict darter will be found within its spawning
                habitat, if such habitat is affected by the activity.
                 (v) Possess and engage in other acts with unlawfully taken
                wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
                Martha Williams,
                Principal Deputy Director, Exercising the Delegated Authority of the
                Director, U.S. Fish and Wildlife Service.
                [FR Doc. 2022-03315 Filed 3-2-22; 8:45 am]
                BILLING CODE 4333-15-P
                

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