Endangered and Threatened Wildlife and Plants:
Federal Register: December 7, 2010 (Volume 75, Number 234)
Rules and Regulations
Page 75913-75931
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr07de10-13
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service 50 CFR Part 17
Docket No. FWS-R4-ES-2009-0079; MO 92210-1117-0000-B4
RIN 1018-AW52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Vermilion Darter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the vermilion darter (Etheostoma chermocki) under the Endangered Species Act of 1973, as amended (Act). We designate as critical habitat approximately 21.0 kilometers (km) (13.0 miles (mi)) of stream in 5 units within the Turkey Creek watershed in Jefferson
County, AL.
DATES: This rule becomes effective on January 6, 2011.
ADDRESSES: This final rule, the final economic analysis, comments and materials received, as well as supporting documentation we used in preparing this final rule, are available for viewing on the Internet at http://regulations.gov at Docket No. FWS-R4-ES-2009-0079 and, by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood
View Parkway, Jackson, MS 39213; telephone 601-321-1122; facsimile 601- 965-4340.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Fish and Wildlife Office (see
ADDRESSES above). If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877- 8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the vermilion darter under the
Act (16 U.S.C. 1531 et seq.), in this final rule. For more information on the biology and ecology of the vermilion darter, refer to the final listing rule published in the Federal Register on November 28, 2001 (66
FR 59367) and the Vermilion Darter Recovery Plan, available on the
Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf. For information on vermilion darter critical habitat, refer to the proposed rule to designate critical habitat for the vermilion darter published in the Federal Register on December 3, 2009 (74 FR 63366). Information on the associated draft economic analysis for the proposed rule to designate revised critical habitat was published in the Federal
Register on June 29, 2010 (75 FR 37350). See also the discussion of habitat in the Physical and Biological Features section below.
Description and Taxonomy
The vermilion darter (Etheostoma chermocki (Teleostei: Percidae)) was officially described in 1992 from Turkey Creek, a tributary of the
Locust Fork, which is within the Black Warrior River drainage of
Jefferson County, Alabama. The vermilion darter belongs to the subgenus
Ulocentra (snubnose darters), which includes fish that are slightly laterally compressed, have complete lateral lines, broadly connected gill membranes, a short head, and a small pronounced mouth. The vermilion darter is a medium-sized darter, reaching about 7.1 centimeters (2.8 inches) total length (length from tip of snout to longest portion of tail fin).
Distribution and Habitat
The vermilion darter is a narrowly endemic fish species, occurring in sparse, fragmented, and isolated populations. The species is only known in parts of the upper mainstem reach of Turkey Creek and four tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 2004, p. 520). Suitable streams have pools of moderate current alternating with riffles of moderately swift current, and low water turbidity.
The vermilion darter was listed as endangered (66 FR 59367,
November 28, 2001) because of ongoing threats to the species and its habitat from urbanization within the Turkey Creek watershed. The primary threats to the species and its habitat are degradation of water quality and substrate
Page 75914
components due to sedimentation and other pollutants, and altered flow regimes from activities such as construction and maintenance activities; impoundments (five within the Turkey Creek and Dry Creek system); instream gravel extractions; off-road vehicle usage; road, culvert, pipe, bridge, gas, sewer and water easement construction; and inadequate stormwater management (Drennen pers. obs. 2007-2009; Blanco and Mayden 1999, pp. 18-20). These activities lead to water quality degradation; the production of pollutants (sediments, nutrients from sewage, pesticides, fertilizers, and industrial and stormwater effluents); stream channel instability; fragmentation; reduced connectivity of the habitat from alteration of stream banks and bottoms; degradation of riffles, runs, and pools; and changes in water quantity and flow necessary for spawning, feeding, resting, and other life-history processes of the species.
Previous Federal Actions
The vermilion darter (Etheostoma chermocki) was listed as endangered under the Act on November 28, 2001 (66 FR 59367). At the time of listing, we found that designation of critical habitat was prudent. However, due to budgetary constraints, we did not designate critical habitat at that time. We approved a final recovery plan for the vermilion darter on June 20, 2007 (Service 2007), and announced its availability to the public through a notice published in the Federal
Register on August 2, 2007 (72 FR 42426).
On November 27, 2007, the Center for Biological Diversity filed a lawsuit against the Secretary of the Interior for our failure to timely designate critical habitat for the vermilion darter (Center for
Biological Diversity v. Kempthorne (07-CV-2928)). In a court-approved settlement agreement, the Service agreed to submit to the Federal
Register a new prudency determination, and if the designation was found to be prudent, a proposed designation of critical habitat, by November 30, 2009, and a final designation by November 30, 2010. We published a proposed critical habitat designation for the vermilion darter on
December 3, 2009 (74 FR 63366), and accepted public comments for 60 days.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the vermilion darter (74 FR 63366) during the December 3, 2009, to February 1, 2010, comment period. We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties, and invited them to comment on the proposed rule. We issued a press release and published a legal notice in the Birmingham News. On June 29, 2010, we published a notice reopening the comment period until July 29, 2010, as well as announcing the availability of a draft economic analysis and amended required determinations (75 FR 37350). We directly notified, and requested comments from the State of Alabama. During the open comment periods we received a total seven comments letters: five from organizations and individuals and two from peer reviewers, one of whom also represented the State of Alabama. All comments supported designation of critical habitat for the vermilion darter. We reviewed all comments for substantive issues and new data regarding vermilion darter critical habitat and the economic analysis. Written comments are addressed in the following summary. For readers' convenience, we have combined similar comments into single comments and responses.
Peer Review
In accordance with our policy published in the Federal Register on
July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. The purpose of such review is to ensure that the designation is based on scientifically sound data, assumptions, and analysis, including input of appropriate experts and specialists. We received written responses from two of the three peer reviewers whom we contacted. The peer reviewers generally agreed that the rule incorporated the best scientific information available, accurately described the species and its habitat requirements (primary constituent elements), accurately characterized the reasons for the species' decline and the threats to its habitat. Both peer reviewers concurred with our critical habitat selection criteria and use of the Vermilion Darter Recovery Plan (USFWS 2007) as a foundation for the proposed designation. Both peer reviewers provided additional information, clarifications, and suggestions to improve the final critical habitat rule. These editorial revisions and clarifications have been incorporated into the final rule, as appropriate. One peer reviewer recommended an additional area for critical habitat designation.
Peer Reviewer Comments
Comment 1: The six-lane Northern Beltline Corridor and the right- of-way segment for the Northern Beltline Corridor between Alabama
Highway 79 and Alabama Highway 75 north of Pinson will have direct and indirect impacts on the critical habitat of the vermilion darter and the general water quality of the Turkey Creek watershed.
Our Response: The Northern Beltline crosses the northern portions of Dry Creek. Only 0.6 km (0.4 mi) of Dry Creek below Innsbrook Lake is designated as critical habitat and this is not within the immediate area of the Northern Beltline. We reviewed and evaluated the Northern
Beltline Corridor in accordance with the Fish and Wildlife Coordination
Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.) and the
Endangered Species Act. We found that the project would not adversely affect the vermilion darter or any federally listed species. We will reinitiate consultation if new information indicates that the Northern
Beltline is a threat to the species or its designated critical habitat, or if the project is modified in a manner or extent not previously considered.
Comment 2: Stormwater management is a much larger issue to critical habitat than what is presented in the rule. There is no maximum instream flow limit in reference to the impacts of stormwater on critical habitat.
Our Response: Stormwater management and its implications to water quality are addressed within the threats section of this rule. In regard to water quantity and stormwater management, an instream flow regime with a minimum average daily discharge over 50 cubic feet per second (compiled from U.S. Geological Survey flow data) is critical to the vitality of the critical habitat and is discussed in this rule.
However, at this time, we do not have sufficient scientific information to determine a maximum stormwater management flow for the designated critical habitat. Average discharges of greater than 100 cubic feet per second, inclusive of both surface runoff and groundwater sources
(springs and seepages), occur sporadically throughout the hydrologic cycle of the critical habitat and may be important maximum flow benchmarks in the future for determining the maximum flow. However, it is not known at this time at what point, or velocity in cubic feet per second, a flow within the hydrological year changes from a
Page 75915
flushing flow to a flow that causes geomorphologic or biological damage.
Comment 3: The commenter states that protection of aquifers and groundwater recharge areas is especially important because of the impacts of climate change on the habitat of the vermilion darter; specifically those impacts ``resulting in higher stream water temperatures and lower flows, and stormwater management needs and higher flows.'' The Service should be consulted for disturbances within the critical habitat area as well as beyond the immediate critical habitat area within the recharge areas particularly in regard to springs and seeps.
Our Response: Critical habitat only affects Federal agencies and those projects which have a Federal nexus. All Federal agencies must comply with section 7 of the Act. Section 7 requires consultation on
Federal actions that may adversely affect critical habitat. Under section 7 of the Act, the Federal action agency must provide an analysis of cumulative effects along with other information, when requesting formal consultation. The Service will be consulted for disturbances to areas both within the critical habitat units as well as those within the recharge area, including springs and seeps that contribute to the instream flow in the tributaries, especially during times when stream flows are abnormally low. See the Effects of Critical
Habitat Designation section of this rule for additional information on section 7 consultation.
Comment 4: The Service should include the spring run on the east side of north bound Alabama Highway 79 as part of the critical habitat designation. Vermilion darters have been collected there during the spawning season.
Our Response: We acknowledge that there have been some sporadic collections of the vermilion darter at this spring run. We did not designate this site as critical habitat because the available information demonstrated that it did not contain the physical and biological features essential to the conservation of the species. See the Primary Constituent Elements section of this rule for areas essential to the conservation of the species. The spring run is located in a road-side ditch about 30 feet long. The run is bordered on all sides by pipes, roads, and a parking lot. It is disjunct and drains into Unit 5 but first must traverse about 100 feet within a pipe under
Highway 79. However, although the spring run is not designated as critical habitat, the site will continue to be subject to conservation actions we implement under section 7 of the Act. See the Effects of
Critical Habitat Designation section of this rule for additional information on section 7 consultation.
Public Comments
Comment 5: The size of the critical habitat for the vermilion darter is inadequate. The entire watersheds of the proposed stream units should be designated as critical habitat. At a minimum, the
Service should designate a 300- to 500-foot buffer zone along each bank of all 5 stream units as critical habitat.
Our Response: The Act requires us to designate specific areas within the geographical area occupied by a species at the time it is listed which contain physical or biological features that are essential to the conservation of the species, and that may require special management considerations or protection. Specific areas outside the geographical area occupied by a species at the time of listing may also be designated critical habitat if it is determined that such areas are essential for the conservation of the species. We believe the five stream units that were proposed as critical habitat are occupied by the vermilion darter, are essential to its conservation, and require special management considerations or protection. As described in the proposed rule (74 FR 63366), we considered additional areas; however, they did not meet the criteria for designation as critical habitat.
When evaluating the effects of any Federal action subject to section 7 consultation, all activities which have the potential to destroy or adversely modify designated critical habitat must be considered. Adverse impacts to vermilion darter critical habitat might result from stormwater runoff, eutrophication, or potential changes in hydrology, geomorphology, etc. (see Effects of Critical Habitat
Designation section below), that would include areas upstream of or adjacent to areas of stream channels that were designated critical habitat. Therefore, specific designation of these areas is unnecessary.
Identification of the stream channel as critical habitat provides notice to Federal agencies to review activities conducted anywhere within the drainage for their potential effects to the designated portion of the channel. Critical habitat designation will alert third parties of the importance of the area to the survival of the vermilion darter.
Comment 6: The six-lane Northern Beltline Corridor will cross Dry
Creek and follow the hilly terrain within the Turkey Creek watershed.
Dry Creek will be placed in culverts at two locations and the general water quality of the Turkey Creek watershed, along with the habitat of the vermilion darter, will be impacted negatively.
Our Response: We evaluated the potential effects of the Northern
Beltline on the vermilion darter and other trust resources in accordance with the Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C. et seq.) and the Endangered Species Act and found that the project would not adversely affect any federally listed species. We will reinitiate consultation if new information indicates that the Northern Beltline is a threat to the species or its designated critical habitat, or if the project is modified in a manner or extent not previously considered (See Comment 1 in the Peer Reviewer Comments section).
Comment 7: Strip mines are occurring along the Locust Fork of the
Black Warrior River near Turkey Creek, outside of the vermilion darter's range and the critical habitat, but within the lower portion of the Turkey Creek watershed. The Majestic Mine is permitted to discharge within Turkey Creek via the creek's tributaries. The Service may want to consider extending the critical habitat of Turkey Creek downstream (from the lower section) to the confluence with the Locust
Fork of the Black Warrior River, thus allowing the future downstream migration or reintroduction of the species.
Our Response: The areas below the most downstream point of Turkey
Creek do not contain, at this time, the physical and biological features essential to the conservation of the vermilion darter. Current and proposed coal mining activities, along with current geomorphic conditions, limit the expansion of the vermilion darter beyond this point within Turkey Creek.
Comment 8: We are skeptical that the rule provides conservation standards adequate for the vermilion darter because critical habitat designation is based on data collected over a decade ago when the species was listed. An updated assessment may have expanded critical habitat to other areas.
Our Response: We utilized the most current information available when preparing this designation, including information from studies conducted since the vermilion darter listing in 2001 (i.e.,
Khudamrongsawat 2007, Khudamrongsawat et al. 2005, Rakes and Shute 2005, USFWS 2007). We have determined that sufficient information is available to identify basic features essential to the conservation of the species as well as specific areas that meet the definition of critical habitat (see Critical Habitat section below).
Page 75916
Comment 9: Ensure the continuity in water flow in the Units to promote genetic flow within Turkey Creek, to prevent the extinction of the vermilion darter.
Our Response: We will implement the requirements of the Act and continue to monitor all activities that might affect stream flow and continuity within the designated area in light of their effects on water quality or quantity (see Physical and Biological Features and
Effects of Critical Habitat Designation sections below).
Comments From States
We received two editorial comments to the critical habitat rule from the Alabama Department of Conservation and Natural Resources, which have been incorporated into this final rule. No official position was expressed by the State on the critical habitat designation.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies insure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain the physical or biological features which are essential to the conservation of the species, and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical and biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
When we are determining which areas we should designate as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. In particular, we recognize that climate change may cause changes in the arrangement of occupied habitat stream reaches. Climate change may lead to increased frequency and duration of severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015). From 2006 to 2007, drought conditions greatly reduced the habitat of the vermilion darter in Jefferson County
(Drennen, pers. obs. 2007). Fluker et al. (2007, p. 10) and Drennen
(pers. obs. 2007) reported that ongoing drought conditions, coupled with rapid urbanization within watersheds containing imperiled darters, render the populations vulnerable to anthropomorphic
Page 75917
disturbances such as water extraction, vehicles within Turkey Creek and its tributaries, and increased clearing or draining of vulnerable wetlands and spring seeps; especially during the breeding season when the darters concentrate in specific habitat areas of Turkey Creek and its tributaries.
The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. Nor are we currently aware of any climate change information specific to the habitat of the vermilion darter that would indicate what areas may become important to the species in the future. Therefore, as explained in the proposed rule (74 FR 63366), we are unable to determine what additional areas, if any, may be appropriate to include in the final critical habitat for this species to address the effects of climate change.
We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we considered the physical and biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical and biological features required for the vermilion darter from the biological needs of the species as described in the Critical Habitat section of the proposed rule to designate critical habitat for the vermilion darter published in the
Federal Register on December 3, 2009 (74 FR 63366), and in the information presented below. Additional information can be found in the final listing rule published in the Federal Register on November 28, 2001 (66 FR 59367), and the Vermilion Darter Recovery Plan, available on the Internet at http://ecos.fws.gov/docs/recovery_plan/070802.pdf.
We have determined that the vermilion darter requires the following physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
While little is known about the specific space requirements of the vermilion darter within the Turkey Creek system, darters, in general, depend on space from geomorphically stable streams with varying water quantities and flow. Studies show that vermilion darters are found in the transition zone between a riffle (shallow, fast water) or run
(deeper, fast water) and a pool (deep, slow water) (Blanco and Mayden 1999, pp. 18-20), usually at the head and foot of the riffles and downstream of the run habitat. Construction of impoundments and inadequate storm water management in the Turkey Creek watershed have altered stream banks and bottoms; degraded the riffles, runs, and pools; and altered the natural water quantity and flow of the stream. A stable stream maintains its horizontal dimension and vertical profile
(stream banks and bottoms), thereby conserving the physical characteristics, including bottom features such as riffles, runs, and pools and the transition zones between these features. The riffles, runs, and pools not only provide space for the vermilion darter, but also provide cover and shelter for breeding, reproduction, and growth of offspring.
In addition, the current range of the vermilion darter is reduced to localized sites due to fragmentation, separation, and destruction of vermilion darter populations. There are both natural (waterfall) and manmade (impoundments) dispersal barriers that not only contribute to the separation and isolation of vermilion darter populations, but also affect water quality. Fragmentation of the species' habitat has isolated the populations within the Turkey Creek system, reduced space for rearing and reproduction and population maintenance, reduced adaptive capabilities, and increased likelihood of local extinctions
(Hallerman 2003, pp. 363-364; Burkhead et al. 1997, pp. 397-399).
Genetic variation and diversity within a species are essential for recovery, adaptation to environmental changes, and long-term viability
(capability to live, reproduce, and develop) (Noss and Cooperrider 1994, pp. 282-297; Harris 1984, pp. 93-107). Long-term viability is founded on numerous interbreeding, local populations throughout the range (Harris 1984, pp. 93-107). Continuity of water flow between suitable habitats is essential in preventing further fragmentation of the species' habitat and populations; conserving the essential riffles, runs, and pools needed by vermilion darters; and promoting genetic flow throughout the populations. Continuity of habitat will maintain spawning, foraging, and resting sites, as well as provide gene flow throughout the population. Connectivity of habitats, as a whole, also permits improvement in water quality and water quantity by allowing an unobstructed water flow throughout the connected habitats.
Based on the biological information and needs discussed above, it is essential to protect riffles, runs, and pools, and the continuity of these structures, to accommodate feeding, spawning, growth, and other normal behaviors of the vermilion darter and to promote genetic flow within the species.
Page 75918
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water Quantity and Flow
Much of the cool, clean water provided to the Turkey Creek main stem comes from consistent and steady groundwater sources (springs) that contribute to the flow and water quantity in the tributaries
(Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to
Beaver Creek). Flowing water provides a means for transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, and diluting nonpoint- and point-source pollution.
Impoundments within Turkey and Dry Creeks not only serve as dispersal barriers but also have altered stream flows from natural conditions.
Without clean water sources, water quality and water quantity would be considerably lower and would significantly impair the normal life stages and behavior of the vermilion darter.
Favorable water quantity is an average daily discharge of over 50 cubic feet per second within the Turkey Creek main stem (U.S.
Geological Survey 2009, compiled from average annual statistics), inclusive of both surface runoff and groundwater sources (springs and seepages) and exclusive of flushing flows. However, the favorable upper limit for the average daily discharge is not known. Along with this average daily discharge, both minimum and flushing flows are necessary within the tributaries to maintain all life stages and to remove fine sediments and dilute other pollutants (Drennen pers. obs., February 2009a; Instream Flow Council 2004, pp. 103-104, 375; Gilbert et al. eds. 1994, pp. 505-522; Moffett and Moser 1978, pp. 20-21). These flows are supplemented by groundwater and contribute to the overall stream- cleansing effect by adding to the total flow of high-quality water.
This, in turn, helps in maintenance of stream banks and bottoms, essential for normal life stages and behavior of the vermilion darter.
However, excessive stormwater flow can alter the geomorphology of the existing stream by disturbing bottom substrate and banksides along with dislodging vegetation.
Water Quality
Factors that can potentially alter water quality are decreases in water quantity through droughts and periods of low seasonal flow, precipitation events, nonpoint-source runoff, human activities within the watershed, random spills, and unregulated stormwater discharge events (Instream Flow Council 2004, pp. 29-50). These factors are particularly harmful during drought conditions when flows are depressed and pollutants are concentrated. Impoundments also affect water quality by reducing water flow, altering temperatures, and concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source pollution and alteration of flow regimes are primary threats to the vermilion darter in the Turkey Creek watershed.
Aquatic life, including fish, requires acceptable levels of dissolved oxygen. The type of organism and its life stage determine the level of oxygen required. Generally, among fish, the young life forms are the most sensitive. The amount of dissolved oxygen that is present in the water (the saturation level) depends upon water temperature. As the water temperature increases, the saturated dissolved oxygen level decreases. The more oxygen there is in the water, the greater the assimilative capacity (ability to consume organic wastes with minimal impact) of that water; lower water flows have a reduced assimilative capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical environment occupied by the fish, and extended low-flow conditions coupled with higher pollutant levels would likely result in behavior changes within all life stages, but could be particularly detrimental to early life stages (e.g., embryo, larvae, and juvenile).
Optimal water quality lacks harmful levels of pollutants such as inorganic contaminants like copper, arsenic, mercury, and cadmium; organic contaminants such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorous fertilizers; and petroleum distillates. Sediment is the most abundant pollutant produced in the Mobile River Basin (Alabama
Department of Environmental Management 1996, pp.13-15). Siltation
(excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to reduce photosynthesis in aquatic plants, suffocate aquatic insects, smother fish eggs, clog fish gills, and fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Eutrophication (excessive nutrients present, such as nitrogen and phosphorous) promotes heavy algal growth that covers and eliminates clean rock or gravel habitats necessary for vermilion darter feeding and spawning. High conductivity values are an indicator of hardness and alkalinity and may denote water nitrification (Hackney et al. 1992, pp.199-203). Generally, early life stages of fishes are less tolerant of environmental contamination than adults or juveniles (Little et al. 1993, p. 67).
Adequate water quality and good to optimal water quantity are necessary to dilute impacts from storm water and other non-natural effluents. Harmful levels of pollutants impair critical behavior functions in fish and are reflected in population-level responses
(reduced population size, biomass, year class success, etc.). Adequate water quantity and flow and good to optimal water quality are also essential for normal behavior, growth, and viability during all life stages. However, excessive water quantity as stormwater runoff may destabilize and move bottom and bankside substrates as well as increase instream sedimentation and decrease water quantity in general.
The vermilion darter requires relatively clean, cool, flowing water within the Turkey Creek main stem and tributaries. The Clean Water Act
(33 U.S.C. 1251 et seq.), Water Quality Act (Pub. L. 100-4), and
Alabama Water Pollution Control Act (Ala. Code Sec. 22-22-1) establish guidelines for water usage and standards of quality for the State's waters necessary to preserve and protect aquatic life. Essential water quality attributes for darters and other fish species in fast to middle water flow streams include: dissolved oxygen levels greater than 6 parts per million (ppm), temperatures between 7 and 26.7 [deg]Celsius
(C) (45 and 80 [deg]Fahrenheit (F)) with spring egg incubation temperatures from 12.2 to 18.3 [deg]C (54 to 65 [deg]F), a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of less than approximately 225 micro
Siemens per centimeter at 26.7 [deg]C (80 [deg]F), and low concentrations of free or suspended solids (organic and inorganic sediments) less than 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15 mg/L Total Suspended Solids (TSS; measured as mg/L of sediment in water) (Teels et al. 1975, pp. 8-9;
Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp. 131-138;
Kundell and Rasmussen 1995, pp. 211-212; Henley et al. 2000, pp. 125- 139; Meyer and Sutherland 2005, pp. 43-64).
Food
The vermilion darter is a benthic (bottom) insectivore consuming larval chironomids (midges), tipulids (crane
Page 75919
flies), and hydropsychids (caddisflies), along with occasional microcrustaceans (Boschung and Mayden 2004, p. 520; Khudamrongsawat et al. 2005, p. 472). Caddisflies and crane flies are pollution-sensitive organisms found in good to fair water quality (Auburn University 1993, p. 53). Variation in instream flow maintains the stream bottom where food for the vermilion darter is found, transports these organisms, and provides oxygen and other attributes to various invertebrate life stages. Sedimentation has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater) and disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and
Welch 2001, pp. 132-135). In addition, eutrophication promotes heavy algal growth that covers and eliminates the clean rock or gravel habitats necessary for vermilion darter feeding and spawning. A decrease in water quality and instream flow will correspondingly decrease the major food species for the vermilion darter. Excessive water quantity as stormwater runoff may destabilize and move bottom and bankside substrates as well as increase instream sedimentation and decrease water quantity in general. Thus, food availability for the vermilion darter is affected by instream flow and water quality.
Based on the biological information and needs discussed above, we believe it is essential that vermilion darter habitat consist of unaltered, connected, stable streams to maintain flow, prevent sedimentation, and promote good water quality absent harmful pollutants.
Cover or Shelter (Sites for Breeding, Reproduction or Rearing)
Vermilion darters depend on specific bottom substrates for normal and robust life processes such as spawning, rearing, protection of young during life stages, protection of adults when threatened, foraging, and feeding. These bottom substrates are dominated by fine gravel, along with some sand, coarse gravel, cobble, and bedrock
(Blanco and Mayden 1999, pp. 24-26; Drennen pers. obs., February 2009b). The vermilion darter prefers small-sized gravel for spawning substrates (Blanchard and Stiles 2005, pp. 1-12). Occasionally, there are also small sticks and limbs on the bottom substrate and within the water column (Stiles pers. comm., September 1999; Drennen pers. obs.,
May 2007).
Excessive fine sediments of small sands, silt, and clay may embed in the larger substrates, filling in interstitial spaces between these structures. Loss of these interstitial areas removes spawning and rearing areas, foraging and feeding sites, and escape and protection localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense, filamentous algae growth on the substrates may restrict or eliminate the usefulness of the interstitial spaces by the vermilion darter.
Excessive fine sediment can also impact aquatic vegetation by reducing sunlight due to turbid water or by covering the vegetation with fine silt. Aquatic vegetation is likely also used by vermilion darters as a spawning substrate (Kuhajda pers. comm., May 2007).
Geomorphic instability within the streambed and along the banks from high stormwater flow results in scouring and erosion of these areas, leading to sedimentation and loss of vegetation and substrate for shelter and cover for vermilion darters, their eggs, and their young. This fine sediment deposition also reduces the area available for food sources, such as macroinvertebrates and periphyton (Tullos 2005, pp. 80-81).
Thus, based on the biological information and needs above, essential vermilion darter habitat consists of stable streams with a stream flow sufficient to remove sediment and eliminate the filling in of interstitial spaces and substrate to accommodate spawning, rearing, protection of young, protection of adults when threatened, foraging, and feeding.
Primary Constituent Elements for Vermilion Darter
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of the vermilion darter in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species. Areas designated as critical habitat for vermilion darter contain only occupied areas within the species' historical geographic range, and contain sufficient primary constituent elements to support at least one life-history process.
Based on our current knowledge of the life history, biology, and ecology of vermilion darter and the requirements of the habitat to sustain the life-history processes of the species, we determined that the primary constituent elements specific to vermilion darter are:
Primary Constituent Element 1. Geomorphically stable stream bottoms and banks (stable horizontal dimension and vertical profile) in order to maintain the bottom features (riffles, runs, and pools) and transition zones between bottom features, to promote connectivity between spawning, foraging, and resting sites, and to maintain gene flow throughout the species' range.
Primary Constituent Element 2. Instream flow regime with an average daily discharge over 50 cubic feet per second, inclusive of both surface runoff and groundwater sources (springs and seepages) and exclusive of flushing flows.
Primary Constituent Element 3. Water quality with temperature not exceeding 26.7 [deg]C (80 [deg]F), dissolved oxygen 6.0 milligrams or greater per liter, turbidity of an average monthly reading of 10 NTUs and 15mg/l TSS or less; and a specific conductance of no greater than 225 micro Siemens per centimeter at 26.7 [deg]C (80 [deg]F).
Primary Constituent Element 4. Stable bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand and gravel, with low amounts of fine sand and sediments within the interstitial spaces of the substrates along with adequate aquatic vegetation.
With this designation of critical habitat, we intend to identify the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the primary constituent elements sufficient to support the life-history processes of the species. Each of the areas identified as critical habitat in this rule contains sufficient primary constituent elements to provide for one or more of the life-history processes of the vermilion darter.
Criteria Used To Identify Final Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas--outside those currently occupied as well as those occupied at the time of listing--are necessary to ensure the conservation of the species. We are designating all stream reaches in occupied habitat as critical habitat. We have defined ``occupied habitat'' as those stream reaches occupied at the time of listing, all of which are still known as of the publication date of this rulemaking to be
Page 75920
occupied by the vermilion darter; these stream reaches comprise the entire known range of the vermilion darter. We are not designating any areas outside the known range of the species because the historical range of the vermilion darter, beyond currently occupied areas, is unknown, and dispersal beyond the current range is not likely due to dispersal barriers.
We used information from surveys and reports prepared by the
Alabama Department of Conservation and Natural Resources, Alabama
Geological Survey, Samford University, University of Alabama, and the
Service to identify the specific locations occupied by the vermilion darter. Currently, occupied habitat for the species is limited and isolated. The species is currently located within the upper mainstem reaches of Turkey Creek and four tributaries: unnamed tributary to
Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson,
Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen pers. obs. March 2008).
Following the identification of the specific locations occupied by the vermilion darter, we determined the appropriate length of stream segments to designate by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the vermilion darter. Populations of vermilion darters are isolated due to dispersal barriers. Accordingly, we set the upstream and downstream limits of each critical habitat unit by identifying landmarks (bridges, confluences, road crossings, and dams) above and below the upper- and lower-most reported locations of the vermilion darter in each stream reach to ensure incorporation of all potential sites of occurrence.
These stream reaches were then digitized using 7.5-minute topographic maps and ARCGIS to produce the critical habitat map.
The five final critical habitat units contain physical and biological features with one or more of the primary constituent elements in the appropriate quantity and spatial arrangement for the features to support multiple life processes for the vermilion darter and to be essential to the conservation of this species.
When identifying final critical habitat boundaries, we make every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands usually lack primary constituent elements for endangered or threatened species.
Areas identified as critical habitat for the vermilion darter below include only stream channels within the ordinary high-water line and do not contain any developed areas or structures.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain the features that are essential to the conservation of the species and which may require special management considerations or protection.
The five units we are designating as critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the species. None of the final critical habitat units are presently under special management or protection provided by a legally operative plan or agreement for the conservation of the vermilion darter. Various activities in or adjacent to the critical habitat units described in this final rule may affect one or more of the physical and biological features. For example, features in the final critical habitat designation may require special management due to threats posed by the following activities or disturbances: urbanization activities and inadequate stormwater management (such as stream channel modification for flood control or gravel extraction) that could cause an increase in bank erosion; significant changes in the existing flow regime within the streams due to water diversion or withdrawal; significant alteration of water quality; significant alteration in the quantity of groundwater and alteration of spring discharge sites; significant changes in stream bed material composition and quality due to construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge construction; culvert and pipe installation; stormwater management; and other watershed and floodplain disturbances that release sediments or nutrients into the water. Other activities that may affect physical and biological features in the final critical habitat units include those listed in the Effects of
Critical Habitat Designation section below.
Final Critical Habitat Designation
We are designating 5 units, totaling approximately 21.2 stream km
(13.1 stream mi), as critical habitat for the vermilion darter. The critical habitat units described below constitute our best assessment of areas that currently meet the definition of critical habitat for the vermilion darter. Table 1 identifies the final units for the species, the occupancy of the units, the final extent of critical habitat for the vermilion darter, and ownership of the final designated areas.
Table 1--Occupancy and Ownership of the Final Critical Habitat Units for the Vermilion Darter
Private
State, county, ownership city ownership
Unit
Location
Occupied
stream
stream
Total kilometers
kilometers
(miles)
(miles)
-
Turkey Creek.... Yes............
14.9
0.3
15.2
(9.2)
(0.2)
(9.4) 2............................ Dry Branch...... Yes............
0.7 ..............
0.7
(0.4)
(0.4) 3............................ Beaver Creek.... Yes............
0.9
0.1
1.0
(0.6)
(
