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Rule2023-07081

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

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Published

April 6, 2023

Effective

May 8, 2023

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the pearl darter (Percina aurora) under the Endangered Species Act of 1973 (Act), as amended. In total, approximately 524 river miles (843 river kilometers) in Clarke, Covington, Forrest, George, Green, Lauderdale, Jackson, Jones, Newton, Perry, Simpson, Stone, and Wayne Counties, Mississippi, fall within the boundaries of the critical habitat designation. The effect of this regulation is to designate critical habitat for the pearl darter under the Act.

Full Text

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[Federal Register Volume 88, Number 66 (Thursday, April 6, 2023)]
[Rules and Regulations]
[Pages 20410-20430]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07081]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0062; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE55

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the pearl darter (Percina aurora) under the
Endangered Species Act of 1973 (Act), as amended. In total,
approximately 524 river miles (843 river kilometers) in Clarke,
Covington, Forrest, George, Green, Lauderdale, Jackson, Jones, Newton,
Perry, Simpson, Stone, and Wayne Counties, Mississippi, fall within the
boundaries of the critical habitat designation. The effect of this
regulation is to designate critical habitat for the pearl darter under
the Act.

DATES: This rule is effective May 8, 2023.

ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and on the Mississippi Ecological Services Field
Office website at <a href="https://fws.gov/office/mississippi-ecological-services">https://fws.gov/office/mississippi-ecological-services</a>. Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2020-
0062.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
decision file and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at
Docket No. FWS-R4-ES-2020-0062 and on the Mississippi Ecological
Services Field Office website at <a href="https://fws.gov/office/mississippi-ecological-services">https://fws.gov/office/mississippi-ecological-services</a>. Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available on the Service's website set out above or at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: James Austin, Field Supervisor, U.S.
Fish and Wildlife Service, Mississippi Ecological Services Field
Office, 6578 Dogwood View Parkway, Jackson, MS 39213; telephone 601-
321-1129. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have

[[Page 20411]]

a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. To the maximum extent prudent and
determinable, we must designate critical habitat for any species that
we determine to be an endangered or threatened species under the Act.
Designations of critical habitat can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. This rule designates a total of 524 river
miles (843 river kilometers) of critical habitat for the pearl darter
in the Pascagoula River and Pearl River basins in Mississippi. We
listed the pearl darter as a threatened species under the Act on
October 20, 2017 (82 FR 43885, September 20, 2017).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
Economic impacts. In accordance with section 4(d)(2) of the Act, we
prepared an economic analysis of the impacts of designating critical
habitat for the pearl darter. When we published the proposed rule to
designate critical habitat, we announced, and solicited public comments
on, the draft economic analysis (86 FR 36678, July 13, 2021).

Previous Federal Actions

Please refer to the final listing rule for the pearl darter, which
published in the Federal Register on September 20, 2017 (82 FR 43885),
for a detailed description of previous Federal actions. Subsequent to
the final listing, we proposed to designate critical habitat for the
pearl darter on July 13, 2021 (86 FR 36678).

Peer Review

In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270) and our August 22, 2016,
memorandum updating and clarifying the role of peer review of actions
under the Act, we solicited independent scientific review from four
knowledgeable individuals with scientific expertise that included
familiarity with the pearl darter or related species, the geographic
region in which the species occurs, the species' biological needs,
threats to the species, and conservation biology principles. We
received responses from two peer reviewers on the proposed critical
habitat rule.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the pearl darter. The peer reviewers generally concurred with our
methods and conclusions and provided additional information and
suggestions for clarifying and improving the accuracy of the
information in several sections of the preamble to the proposed rule.
Peer reviewer comments are addressed below in Summary of Changes From
the Proposed Rule and incorporated into this final rule as appropriate.
In addition, some of the peer reviewer comments also contained
suggestions that were applicable to general recovery issues for the
pearl darter, but not directly related to the critical habitat
designation (i.e., meaning these comments are outside the scope of the
critical habitat rule). These general comments included topics such as
the use of reintroductions and the number of areas used as
reintroduction sites. While these comments may not be directly
incorporated into the critical habitat rule, we have noted the
suggestions and look forward to working with our partners on these
topics during recovery planning for the pearl darter.

Summary of Comments and Recommendations

On July 13, 2021, we published in the Federal Register (86 FR
36678) a proposed rule to designate critical habitat for the pearl
darter and to make available the associated draft economic analysis;
the public comment period for that proposed rule was open for 60 days,
ending September 13, 2021. We also contacted and invited appropriate
Federal, State, and local agencies, scientific organizations, and other
interested parties to comment on the proposed critical habitat
designation and draft economic analysis during the comment period.
Notices of the availability of these documents for review and inviting
public comment were published by The Clarion Ledger on July 17, 2021.
We did not receive any requests for a public hearing.
During the comment period, we received seven public comment letters
on the proposed rule; a majority of the comments supported the
designation, two comments opposed the designation in two separate
areas, and most comments included suggestions on how we could refine or
improve the designation. All substantive information provided to us
during the comment period has been incorporated directly into this
final rule or is addressed below.

Peer Reviewer Comments

(1) Comment: Both peer reviewers provided comments questioning why
Unit 2 included only the Strong River and not any of the historical
range within the mainstem Pearl River, as doing so would increase
redundancy within the Pearl River drainage.
Our Response: We recognize the importance of redundancy within the
Pearl River drainage. Based on the best available science, we
determined that the Strong River is the only area within the Pearl
River drainage that currently meets the criteria for unoccupied
critical habitat (see Areas Unoccupied at the Time of Listing
subsection below). This does not mean that areas within the mainstem
Pearl River do not contain some or all of the physical or biological
features essential to the conservation of the species, but rather that
we do not have information that areas in the mainstem Pearl River meet
the criteria for unoccupied critical habitat. The lower Strong River
also represents the stream reach within the Pearl River drainage with
the best potential for recovery of the species due to current
conditions, suitability for reintroductions, and access for monitoring.
Further evidence of the presence of physical or biological features
within this reach of the Strong River is demonstrated by recent
increases in other benthic fish species (e.g., frecklebelly madtom
(Noturus munitus), crystal darter (Crystallaria asprella)) that
declined concurrent with the extirpation of the pearl darter (Piller

[[Page 20412]]

et al. 2004, pp. 1007-1011; Wagner et al. 2018, pp. 4-5).
As described in the proposed rule, this unit currently provides
some of the physical or biological features essential to the
conservation of the pearl darter, including a stable channel with
bottom substrates of fine and coarse sand, silt, loose clay, coarse
gravel, fine and coarse particulate organic matter, and woody debris; a
natural hydrograph with flows to support the normal life stages of the
pearl darter; and the species' prey sources. Successful conservation of
the pearl darter will require the reintroduction of pearl darter within
the species' historical range; the lower Strong River unoccupied unit
advances this goal. Reestablishing a population in the Strong River
will provide for increased redundancy within the historical range and
increase the species' ecological representation. Lastly, this river
reach also provides the potential for the pearl darter to expand its
range into other historically occupied areas, including the mainstem
Pearl River, which currently may be or may later become suitable, to
ensure that the species has an adequate level of redundancy within the
Pearl River drainage and guard against future catastrophic events.

Comments From States

Section 4(b)(5)(A)(ii) of the Act requires the Service to give
actual notice of any designation of lands that are considered to be
critical habitat to the appropriate agency of each State in which the
species is believed to occur and invite each such agency to comment on
the proposed designation.
(2) Comment: The Mississippi Department of Wildlife, Fisheries, and
Parks (MDWFP) provided a comment letter in support of the designation
of critical habitat and recommended an extension of proposed Unit 1 in
the Chunky River. Specifically, the MDWFP provided a publication with
survey data for pearl darter in the Chunky River (Ellwanger et al.
2021, entire) collected after the proposed rule was published, which
included records of adult pearl darter upstream of the previously known
records in the Chunky River. The MDWFP requested an upstream increase
of the critical habitat designation within the Chunky River system of
approximately 6.5 river miles (mi) (10.5 river kilometers (km)) to the
uppermost Highway 80 crossing in Newton County, Mississippi (32.324
[deg]N, 88.976 [deg]W).
Our response: We incorporated this new information and minor
extension of critical habitat into the rule and associated economic
analysis based on the received information. At the time of listing in
2017, the pearl darter was known from 19 river mi (31 river km) within
the Chunky River (82 FR 43885; September 20, 2017, p. 43888). The 2021
detection provided by MDWFP was a result of targeted sampling within
suitable habitat of the Chunky River (Ellwanger et al. 2021, entire),
where targeted sampling had not previously been completed. This
detection resulted in an expansion of the known range of the species
within the Chunky River to 28 river mi (45 river km) of occupied
habitat. We consider this additional mileage of stream reach to be
occupied at the time of listing because the newly discovered segment
upstream has the physical or biological features essential to the
conservation of the species and there are no impediments to
connectivity between the new occurrence record and the areas occupied
at the time of listing. Thus, the additional mileage was likely unknown
to be occupied at the time of listing due to a lack of targeted surveys
for the species rather than absence of the species from this segment.
Although previous fish surveys had been completed in this segment, they
were not targeting the pearl darter or its habitat and may not have
detected the species, which is difficult to detect during surveys due
to the species' small size and rarity. As such, surveys within a
particular reach of an occupied stream are not always definitive of the
species' absence, which lends support for considering the 6.5 river mi
(10.5 river km) segment as occupied at the time of listing.

Public Comments

(3) Comment: One public commenter noted that it is not necessary
for the Service to designate the Leaf River as critical habitat for the
pearl darter as the existing stream management practices are adequate
to protect the habitat used by the pearl darter and, based on data
collected over the last 20 years, the Leaf River is a healthy habitat
for fish and macroinvertebrates. They also note that the pearl darter
has increased in abundance over the past 20 or more years in the Leaf
River.
Our Response: As directed by the Act, we proposed as critical
habitat those specific areas occupied by the species at the time of
listing on which are found those physical or biological features
essential to the conservation of the species and which may require
special management considerations or protection. Although the commenter
suggested that abundance is increasing within the Leaf River and
existing stream management practices are adequate to protect the
habitat, the designation of critical habitat within the Leaf River is
appropriate given that the segment was occupied at the time of listing
and meets the definition of critical habitat as it has all of the
physical or biological features essential to the conservation of the
species. These features include: unobstructed and stable river channels
with connected sequences of runs and bends associated with pools and
scour holes, required substrates, a natural flow regime, adequate water
quality conditions, and presence of a prey base.
(4) Comment: One commenter noted that the Service should develop a
habitat suitability index, to assess the habitat impacts on the pearl
darter, before designation of any critical habitat.
Our Response: As discussed above in our response to comment 3, we
proposed as critical habitat those specific areas at the time of
listing on which are found those physical or biological features
essential to the conservation of the species. Further, Section 4(b)(2)
of the Act states that the Secretary must make the designation based on
the best scientific data available. We have used the best available
information to determine areas that contain the physical or biological
features essential to the conservation of the species, which are
reflected in our proposed rule and this final designation.
We appreciate the suggestion to develop a habitat suitability index
for the pearl darter. Subsequent to our proposed designation of
critical habitat, we developed a habitat suitability index following
standard modeling approaches (Elith et al. 2006, entire; Cutler et al.
2007, entire) using the best available science to inform the recovery
efforts. This analysis identified areas throughout the Pascagoula River
drainage that are considered suitable habitat and are aligned with our
critical habitat designation (Service 2020, unpublished data).
(5) Comment: One commenter offered information about forestry best
management practices and the conservation benefits they provide to
aquatic species on private, working forests and requested that the
Service include several references supporting these benefits.
Our Response: We recognize that silvicultural operations are widely
implemented in accordance with State-approved best management practices
(BMPs; as reviewed by Cristan et al. 2018, entire). We also recognize
that the adherence to these BMPs broadly protects water quality,
particularly related to sedimentation (as reviewed by

[[Page 20413]]

Cristan et al. 2016, entire; Warrington et al. 2017, entire; and
Schilling et al. 2021, entire) to an extent that these operations do
not impair the species' conservation. We have included some of these
references here in our response. In addition, in our proposed rule, we
included the use of BMPs for forestry activities as an example of
special management actions that would minimize or ameliorate threats to
water quality.
(6) Comment: One commenter stated the designation of critical
habitat in Unit 2 is not based on the best scientific data available,
particularly that the water quality in Unit 2 does not meet the current
State of Mississippi criteria, and that there is not scientific support
for the statement that there is a high potential for successful
reintroduction into the Pearl River drainage.
Our Response: We have identified that some of the physical or
biological features essential to the conservation of the species can be
found within Unit 2 in the Pearl River drainage (see Summary of
Essential Physical or Biological Features, below). We have revised our
description of the physical or biological features present in Unit 2 to
reflect that the water quality physical or biological feature currently
is not met during all portions of the year. However, Unit 2 in the
Strong River provides some of the physical or biological features
essential to the conservation of the pearl darter, including a stable
channel with bottom substrates of sand, silt, loose clay and gravel,
bedrock, fine and coarse particles of organic matter, woody debris, and
a natural hydrograph with flows to support the normal life stages of
the pearl darter and the species' prey sources. In addition, channel
integrity is controlled and protected by natural bedrock outcrops, and
improvement in water quality is indicated by the resurgence of other
benthic fish species (e.g., frecklebelly madtom and crystal darter)
that historically co-occurred with the pearl darter and experienced
declines when the pearl darter disappeared from the drainage (Piller et
al. 2004, pp. 1007-1011; Tipton et al. 2004, pp. 57-60; Wagner et al.
2018, entire). We also acknowledge observations from a biologist that
has worked in the Strong River since the 1970s (Hartfield 2021, pers.
comm.) and a local landowner (Gillespie 2021, pers. comm.). Both have
noted improvements in water quality due to a reduction in pollutants
from chicken farming and other sources since the 1970s, presumably due
to enactment and enforcement of the Clean Water Act of 1972, which has
greatly improved water quality monitoring.
The assessment that this species has high potential for successful
reintroduction is based on the fact that the species has been
successfully propagated in captivity (Campbell and Schwarz 2019,
entire) and suitable habitats are still found at the type locality on
the Strong River (Wagner 2022, pers. comm.). Suttkus et al. (1994, p.
19) note habitat for the pearl darter in the Strong River, which is
consistent with habitat descriptions from recent surveys in the
Pascagoula (Slack et al. 2005, pp. 9-11; Clark et al. 2018, pp. 104-
105) and observations of the habitat currently found at the type
locality within the Strong River (Wagner 2022, pers. comm.).
Moreover, recent and ongoing studies have filled many of the
previously identified knowledge gaps for the species that will inform
successful reintroduction planning. Habitat associations have been
studied (Clark et al. 2018, p. 103). Completed genetic work is being
used to inform propagation and serve as a reference for reintroduction
(Schaefer et al. 2020, entire). We are currently working with the
University of Southern Mississippi to study the life history of the
species through an ongoing project. Data collected through this project
have been used to help inform the Service on the timing of spawning for
the species, which will help to better monitor existing populations and
any newly introduced populations. Additionally, a preliminary study of
the diet of pearl darter has found the species not to be a specialist
as it was noted to consume larval mayflies, caddisflies, black flies,
and ostracods (Service 2022, unpublished data). We recognize that
additional studies and information will help improve the reintroduction
planning for the species although recent and ongoing studies have
addressed many of the knowledge gaps that previously existed.
(7) Comment: One commenter notes that the economic analysis fails
to consider costs to projects related to mitigation measures, water
quality issues, project modifications, and project relocations.
Our Response: Section 4(b)(2) of the Act and its implementing
regulations require that we consider the economic impact that may
result from a designation of critical habitat. In our incremental
effects memorandum (IEM), we clarified the distinction between the
recommendations that will result from the species being listed and
those attributable to the critical habitat designation (i.e.,
difference between the jeopardy and adverse modification standards) for
the pearl darter's critical habitat. As discussed in section 3 of the
screening analysis (Industrial Economics, Incorporated (IEc) 2020, pp.
9-19), the Service does not anticipate making any additional project
modification recommendations to avoid adverse modification of pearl
darter critical habitat beyond what we already recommend to avoid
impacts to other listed species with similar habitat requirements,
including the Gulf sturgeon (listed as Atlantic sturgeon (Gulf
subspecies); Acipenser oxyrinchus desotoi), ringed map turtle
(Graptemys oculifera), and yellow blotched map turtle (Graptemys
flavimaculata). This statement is true for both Unit 1, which is
occupied such that the species already would be considered for
consultation since it is listed, and Unit 2, which is unoccupied. The
screening analysis also highlights the project recommendations
contained in the Standard Local Operations Procedures for Endangered
Species (SLOPES) agreement for Mississippi between the Service and the
U.S. Army Corps of Engineers. In making this determination in our
economic analysis, the Service considered the potential for
recommendations that include mitigation measures, are specific to water
quality issues, or may result in project relocations.
(8) Comment: One commenter asserts that the economic analysis
should consider the potential for losses in value among properties
adjacent to the proposed river miles.
Our Response: Existing economics literature suggests that critical
habitat may affect property values (List et al. 2006, entire;
Auffhammer et al. 2020, entire). This literature references particular
species and geographic contexts, and the transferability of the results
to other species and regions is uncertain. As described in section 4 of
the screening analysis (IEc 2020, pp. 19-20), this literature has not
evaluated the effects of riverine critical habitat on adjacent property
values. While perceptional effects on land values are possible, the
likelihood and magnitude of such effects for this rule are uncertain.
Although the screening analysis acknowledges this uncertainty, it does
not conclude that these effects are likely, and we did not consider
potential impacts to property values given the lack of support in the
available literature (IEc 2020, p. 20). Lastly, the commenter did not
provide information or literature on potential loss in property value
that would lead us to change our evaluation in the screening analysis.
(9) Comment: One commenter suggests that the economic analysis

[[Page 20414]]

should consider the costs associated with unrealized future development
and lost tax revenues associated with activities in Unit 2.
Our Response: As described in response to comment 7 above and in
section 3 of the screening analysis (IEc 2020, pp. 9-19), the Service
does not anticipate making project modification recommendations to
avoid adverse modification of pearl darter critical habitat beyond what
has already been recommended to avoid impacts to other listed species
with similar habitat requirements, including the Gulf sturgeon and
ringed map turtle. The costs associated with changes in development
activity would be incurred regardless of whether critical habitat for
the pearl darter is designated along the Strong River because of the
presence of other listed species. Therefore, the critical habitat
designation for the pearl darter is unlikely to affect future
development or tax revenues in the region.
(10) Comment: One commenter noted that the Service incorrectly
states in the discussion of administrative costs of section 7
consultations in the draft economic analysis that the critical habitat
designation will not result in any additional consultations on the
Strong River.
Our Response: As Unit 2 overlaps with the listed range of the Gulf
sturgeon and ringed map turtle, all activities with a Federal nexus
that may affect pearl darter critical habitat would in fact require
consultation even absent the critical habitat designation for the pearl
darter in order to consider potential effects on the Gulf sturgeon and
ringed map turtle. It is also important to note that activities
potentially affecting critical habitat can occur outside of the area
designated as critical habitat. Activities occurring upstream of the
area designated as critical habitat for the Gulf sturgeon, which would
include Unit 2, that could negatively impact water quality and then
Gulf sturgeon critical habitat would require consultation under section
7(a)(2) of the Act where there is a Federal nexus. For example, in
2019, the Service consulted on a bridge replacement project situated
along the Strong River in Simpson County and specifically considered
the Gulf sturgeon critical habitat as well as the ringed map turtle.
Similarly, in 2006, the Service considered both the Gulf sturgeon
critical habitat and ringed map turtle during a consultation regarding
a new pipeline crossing within the Strong River drainage. The proposed
Unit 2, therefore, does benefit from the baseline protections afforded
to other species with similar habitat needs given the connectivity of
the Strong River with existing critical habitats on the Pearl River.

Summary of Changes From the Proposed Rule

After consideration of the comments we received during the public
comment period (refer to Summary of Comments and Recommendations,
above) and new information published or obtained since the proposed
rule was published, we made changes to the final critical habitat rule.
Many small, non-substantive changes and corrections that do not affect
the determination (e.g., updating the Background section of the
preamble in response to comments, minor clarifications) were made
throughout the document. Below is a summary of changes made to the
final rule.

Economic Analysis

(1) The draft economic analysis incorrectly displayed that the
unoccupied habitat in proposed Unit 2 overlaps with the designated
critical habitat for other species. Specifically, in Exhibit 1, Summary
of Proposed Critical Habitat Units for the Pearl Darter, of the
screening memo (IEc 2020, p. 6), incorrect information was displayed in
the column Overlaps With Existing Critical Habitat For Other Aquatic or
Riparian Listed Species under Unit 2. The ``Yes'' should have been a
``No'' as the proposed critical habitat does not overlap with critical
habitat for other species. This error was corrected and is addressed in
the updated memorandum from IEc (IEc 2021, p. 1).
(2) Updated the economic analysis to include consideration of the
additional 6.5 river mi (10.5 river km) within Unit 1. Despite the
increase in size of Unit 1, the total incremental costs are not
expected to change relative to the screening analysis (IEc 2020,
entire; IEc 2021, entire).

Preambles to the Rulemaking Documents

The following items describe changes made between statements in the
preamble of the proposed rule and those in the preamble of this final
rule.
(3) In Criteria Used To Identify Critical Habitat, based on
feedback from a peer reviewer, we removed a statement that indicated
the pearl darter's representation would increase from current levels by
allowing for local environmental adaptation and increasing genetic
representation. The Service had not provided adequate information to
support that statement, and the species currently has low levels of
genetic diversity within its occupied range.
(4) In Application of the ``Adverse Modification'' Standard, we
included a statement that, during a consultation under section 7(a)(2)
of the Act, the Services may find that activities likely to destroy or
adversely modify critical habitat include activities that occur within
critical habitat or affect the critical habitat.
(5) In Habitats Representative of the Historical, Geographical, and
Ecological Distributions of the Species, we:
(a) Changed a statement that the pearl darter is definitively
extirpated to it being considered extirpated within the Pearl River
basin, based on information from peer reviewers. Given the species'
cryptic nature, lack of targeted surveys within the Pearl River basin,
and the fact that extirpation is a high bar to definitively prove,
researchers do not consider the pearl darter to be definitively
extirpated from this system despite a lack of detections over the past
several decades.
(b) Added information from a habitat suitability model that was
developed for recovery efforts (Service 2021, unpublished data), which
confirmed that our proposed designation of critical habitat contains
areas indicated as suitable for the species.
(c) Incorporated additional citations--provided through the public
comment and peer review process--to support our discussion of physical
and biological features, species needs, and species occurrence.
(d) Updated the calculation of the proportion of habitat lost from
``roughly half'' to 36 percent. The updated total better accounts for
the proportion of occupied habitat lost with the extirpation of the
species within the Pearl River basin.
(6) In Space for Individual and Population Growth and for Normal
Behavior, we removed the description of the habitat for the prey of
pearl darter and described only habitat as found in recent literature
(Slack et al. 2005, pp. 9, 11).
(7) In Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements section and Summary of Essential Physical or
Biological Features, we incorporated information from a recent
preliminary diet study (Service, unpublished data) of specimens from
the Chunky River and Chickasawhay River. This study confirmed that the
pearl darter is a dietary generalist.
(8) In Sites for Breeding, Reproduction, or Rearing (or
Development) of Offspring, we incorporated information that indicates

[[Page 20415]]

that spawning has not been observed in the wild, but rather individuals
in spawning condition have been collected.
(9) In Areas Occupied at the Time of Listing, we have incorporated
information from two additional citations (Clark et al. 2018, entire;
Ellwanger et al. 2021, entire) that add known distribution information
for the species.
(10) In Final Critical Habitat Designation, we have revised our
description of the physical or biological features present in Unit 2 to
reflect our recognition that the physical or biological feature
pertaining to water quality is not currently met during all portions of
the year.

Rule Text

(11) In the rule portion of this document we have made the
following changes:
(a) In the list of the physical or biological features required for
the pearl darter, we adjusted the descriptions of the bottom substrates
and prey base, based on information received during the comment period;
and,
(b) In the designation of critical habitat for Unit 1, we expanded
the designation in the Chunky River based on information submitted by
the Mississippi Department of Wildlife, Fisheries, and Parks as
described above in the response to comment 2.

I. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
This critical habitat designation was proposed when the regulations
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the
4(b)(2) exclusion process for the Service (85 FR 82376; December 18,
2020) were in place and in effect. However, those two regulations have
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21,
2022) and no longer apply to any designations of critical habitat.
Therefore, for this final rule designating critical habitat for the
pearl darter, we apply the regulations at 50 CFR 424.19 and the 2016
Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation 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 requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would likely result
in destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species; the recovery plan for the species; articles in peer-reviewed
journals; conservation plans developed by States and counties;
scientific status surveys and studies; biological assessments; other
unpublished

[[Page 20416]]

materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.

Prudency and Determinability

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. In our proposed critical habitat rule (86 FR 36678; July 13,
2021), we found that designating critical habitat is both prudent and
determinable for the pearl darter. In this final rule, we reaffirm
those determinations.

Physical or Biological Features Essential to the Conservation of the
Species

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

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

The pearl darter is historically known from rivers and streams
within the Pearl River and Pascagoula River drainages in Mississippi
and Louisiana, and the species was described from the lower Strong
River within the Pearl River drainage of Mississippi (Suttkus et al.
1994, pp. 15-20). The darter has been considered extirpated from the
Pearl River drainage for several decades apparently due to system-wide
channel and water quality degradation occurring in the late 1960s to
early 1970s (Kuhajda 2009, pp. 17-18; Wagner et al. 2017, entire). With
this presumed extirpation, 36 percent of the historical, geographical,
and ecological habitats of the pearl darter are no longer occupied.
Channel integrity and water quality within the Pearl River drainage
have since improved due to the enactment of State and Federal laws and
regulations addressing water pollution and in-channel sand and gravel
mining. In the lower Strong River, channel integrity is controlled and
protected by natural bedrock outcrops, and water quality has improved
as indicated by the resurgence of other benthic fish species that
historically co-occurred with the pearl darter (Piller et al. 2004, pp.
1007-1011; Tipton et al. 2004, pp. 57-60; Wagner et al. 2018, entire).
Within the Pascagoula River drainage, the pearl darter is known to
occur within the Pascagoula, Chickasawhay, Leaf, Chunky, and Bouie
Rivers and the Okatoma and Black Creeks (Suttkus et al. 1994, pp. 15-
20; Wagner et al. 2017, pp. 3-10, 12; Clark et al. 2018, pp. 100-103;
Schaefer et al. 2020, pp. 26-27, 43-44). This area was reaffirmed as
suitable habitat throughout a contiguous distribution based on a
habitat suitability model developed for the species (Service 2021,
unpublished data).
The lower Strong River within the Pearl River drainage and the
rivers and streams identified above within the Pascagoula River
drainage are representative of the historical, geographical, and
ecological distribution of the species.

Space for Individual and Population Growth and for Normal Behavior

The pearl darter is found in free-flowing, low-gradient streams and
rivers with pools and scour holes associated with channel bends and
runs (Slack et al. 2002, p. 10; Bart et al. 2001, p. 13). Presence of
the darter is associated with bottom substrates including fine and
coarse sand, silt, loose clay, coarse gravel, fine and coarse
particulate organic matter, and woody debris (Slack et al. 2005, pp. 9,
11). Pearl darter occurrence within these habitats may be seasonal with
spawning occurring in upstream reaches and growth and

[[Page 20417]]

recruitment in downstream reaches (Bart et al. 2001, pp. 13, 15).
Therefore, a continuum of perennial, uninterrupted, and interconnected
natural small stream-to-river channel habitat is required for
downstream drift of larvae or movement of juveniles and upstream
migration of spawning adults.

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

The pearl darter requires unimpeded and interconnected stretches of
perennial and flowing streams and rivers with adequate water quality.
Water temperatures at pearl darter collection sites have ranged from 8
to 30 degrees Celsius ([deg]C) (46.4 to 86.0 degrees Fahrenheit
([deg]F)) (Suttkus et al. 1994, pp. 17-19; Bart et al. 2001, p. 13,
Slack et al. 2002, p. 10), with dissolved oxygen of 5.8 to 9.3
milligrams per liter (mg/1) (Suttkus et al. 1994, pp. 17-19; Bart et
al. 2001, pp. 7, 13-14; Slack et al. 2002, p. 10). The species is
apparently sensitive to warmer water temperatures and may seasonally
require tributaries with canopy shading and/or cool spring flows as
seasonal refugia from warmer, unshaded river channels (Bart et al.
2001, p. 14).
Preliminary analysis of diets of specimens from the Chunky River
and Chickasawhay River show the species feeds on larval mayflies,
larval caddisflies, larval black flies, ostracods (crustaceans),
chironomids (midges), and gastropods (snails). Food availability is
likely affected by adequate flow, channel stability, water quality, and
local habitat conditions, which may vary throughout or between the
rivers and streams occupied or historically occupied by the species.
Pearl darter have been maintained in captivity for at least 2 years on
a diet of bloodworms (Campbell and Schwarz 2019, entire).

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

Pearl darter have been collected at sites with cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH values (6.3 to
7.6), and low levels of pollution (Suttkus et al. 1994, pp. 17-19; Bart
et al. 2001, pp. 7, 13-14; Slack et al. 2002, p. 10). Spawning has not
been observed in the wild for pearl darter. However, adult pearl darter
have been collected in spawning condition in the Strong River where
they were associated with bedrock and broken rubble (Suttkus et al.
1994, p. 19) and in three probable spawning sites in the Pascagoula
River system that were characterized by extensive outcrops of limestone
or sandstone (Bart and Piller 1997, p. 8). Pearl darter in spawning
condition in the Pascagoula River drainage have also been collected
over firm gravel in relatively shallow, flowing water from April to
early May (Bart et al. 2001, p. 13). Ideal conditions for spawning have
been described as channel reaches with good canopy shading, an
extensive buffer of mature forest, and good water quality (Bart et al.
2001, p. 15).
Adults collected in spawning condition in the Pearl and Strong
Rivers (Mississippi) were documented during March through May (Suttkus
et al. 1994, pp. 19-20), and young of year were collected in June
(Suttkus et al. 1994, p. 19). Based on collection occurrence patterns,
some researchers have postulated that adult pearl darter migrate
upstream during the fall and winter to spawn in suitable upstream
gravel reaches with elevated river discharge during the spring
dispersing the larvae and juveniles into downstream reaches (Bart et
al. 2001, p. 14; Ross et al. 2000, p. 11). Other studies have
hypothesized that the species disperses locally from shallow spawning
habitats into nearby deeper habitats where their presence is more
difficult to detect (Slack et al. 2002, p. 18). The pattern of the
disappearance of the pearl darter from all stream orders in the Pearl
River drainage over a relatively short period of time suggests that
some degree of seasonal interchange between tributary and river channel
subpopulations may have been a factor in the species' presumed
extirpation from that drainage. Therefore, until more is known relative
to seasonal dispersal, connectivity between instream habitats should be
considered essential for successful breeding and rearing of the pearl
darter.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of pearl darter from studies of the species' habitat,
ecology, and life history as described below. Additional information
can be found in the proposed critical habitat (86 FR 36678; July 13,
2021) and final listing rule (82 FR 43885; September 20, 2017) for the
pearl darter. We have determined that the following physical or
biological features are essential to the conservation of the pearl
darter:
(1) Unobstructed and stable stream and river channels with:
(a) Connected sequences of channel runs and bends associated with
pools and scour holes; and
(b) Bottom substrates consisting of fine and coarse sand, silt,
loose clay, coarse gravel, fine and coarse particulate organic matter,
or woody debris.
(2) A natural flow regime necessary to maintain instream habitats
and their connectivity.
(3) Water quality conditions, including cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH (6.3 to 7.6), and
low levels of pollutants and nutrients meeting the current State of
Mississippi criteria as necessary to maintain natural physiological
processes for normal behavior, growth, and viability of all life stages
of the species.
(4) Presence of a prey base of small aquatic macroinvertebrates,
including larval mayflies, larval caddisflies, larval black flies,
ostracods (crustaceans), chironomids (midges), and gastropods (snails).

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The pearl darter faces threats from water quality
degradation from point and non-point source pollution, discharges from
municipalities, and geomorphological changes to its channel habitats
(82 FR 43885, September 20, 2017, pp. 43888-43893). The features
essential to the conservation of this species may require special
management considerations or protection to reduce the following
threats: (1) Actions that alter the minimum or existing flow regime,
including impoundment, channelization, or water diversion; (2) actions
that significantly alter water chemistry or temperature by the release
of chemicals, biological pollutants, or heated effluents into the
surface water or connected groundwater at a point or non-point source;
and (3) actions that significantly alter channel morphology or
geometry, including channelization, impoundment, road and bridge
construction, or instream mining.
Examples of special management actions that would minimize or
ameliorate threats to the pearl darter include: (a) Restoration and
protection of riparian corridors; (b) implementation of best management
practices to minimize erosion (such as State and industry best
management practices for road construction, forest management,

[[Page 20418]]

or mining activities); (c) stream bank restoration projects; (d)
private landowner programs to promote watershed and soil conservation
(such as the U.S. Department of Agriculture's Farm Bill and the
Service's Private Lands programs); (e) implementation of best
management practices for storm water; and (f) upgrades to industrial
and municipal treatment facilities to improve water quality in
effluents.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are designating critical
habitat in areas within the geographical area occupied by the species
at the time of listing. We also are designating specific areas outside
the geographical area occupied by the species because we have
determined that a designation limited to occupied areas would be
inadequate--and therefore designation of unoccupied area is essential--
to ensure the conservation of the species.
The current distribution of the pearl darter is reduced from its
historical distribution, and we anticipate that recovery will require
continued protection of the existing population and habitat, as well as
establishing a population within its historical range (i.e., unoccupied
critical habitat), to ensure there are adequate numbers of pearl darter
occurring in stable populations for the species' continued
conservation. Furthermore, rangewide recovery considerations, such as
maintaining existing genetic diversity and striving for representation
of all major portions of the species' historical range, were considered
in formulating the proposed critical habitat designation.
We are designating critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
identified areas with current occurrence records that we deemed
suitable habitat (see delineation steps, below) and that had one or
more of the physical or biological features identified for the pearl
darter that may require special management considerations or
protection. We also are designating specific areas outside of the
geographical area occupied by the species at the time of listing
because we have determined that those areas are essential for the
conservation of the species. For those unoccupied areas, we have
determined that it is reasonably certain that the unoccupied areas will
contribute to the conservation of the species and contain one or more
of the physical or biological features that are essential to the
conservation of the species.
Threats to pearl darter occurring in the Pascagoula River drainage
are compounded by the species' naturally low numbers and short life
span, but the species' conservation potential is primarily limited by
its extirpation from the Pearl River drainage and, therefore, its lack
of redundancy. The documented Pearl River drainage extirpation was
rapid and system-wide, including all mainstem and tributary collection
sites seemingly simultaneously. As such, we consider pearl darter
occurring within the Pascagoula River and its tributaries as a single
population. The loss of the species' redundancy with its extirpation
from the Pearl River drainage has also diminished its genetic and
ecological representation and, therefore, increased the species'
vulnerability to catastrophic events and population changes. A
successful reintroduction into the Pearl River drainage would restore
the species' redundancy within its historical range. Thus,
reintroducing the species into the Pearl River drainage would
contribute to the resilience and conservation of the pearl darter.
Factors implicated in the Pearl River extirpation include
geomorphic instability (i.e., channel erosion and degradation),
sedimentation, and point source pollution from municipalities and
industries (e.g., Bart and Suttkus 1995, p. 14; Tipton et al. 2004, pp.
59-60). One or all of these factors may have been responsible for the
diminishment or loss of some or all of the physical or biological
features essential to the conservation of the pearl darter within the
drainage (e.g., channel stability, substrate, water quality, prey
base). We now find that these factors have been reduced to a degree
that the pearl darter may be successfully reintroduced into the Pearl
River.
For example, active channel erosion and degradation that may have
been precipitated by the 1956 construction of the Pearl River
navigation system in the lower basin and aggravated by the 1963
construction of the Ross Barnett Reservoir in the upper basin have
diminished. Moreover, instream mining is now prohibited by the States
of Mississippi and Louisiana, thus resulting in more stable channel
habitats within the basin. In addition, point-source pollution from
untreated municipal and industrial discharge into the Pearl River has
been significantly reduced by enactment and enforcement of the Clean
Water Act of 1972 (33 U.S.C. 1251 et seq.). The improvement of the
physical or biological features within the Pearl River drainage is also
demonstrated by recent observed increases in other benthic fish species
(e.g., crystal darter, frecklebelly madtom), which experienced declines
concurrent with the extirpation of the pearl darter (Piller et al.
2004, pp. 1007-1011; Tipton et al. 2004, pp. 57-60; Wagner et al. 2018,
p. 13). These improvements indicate that one or more of the physical or
biological features essential to the conservation of the pearl darter
are now present within the Pearl River drainage. Because the Pearl
River drainage habitat contains the physical or biological features for
the pearl darter and supports other benthic fish species with similar
life processes, we conclude that the drainage contains the resources
and conditions necessary to support the life processes for the pearl
darter and is essential for the conservation of the species.
We completed the following steps to delineate critical habitat:
(1) Compiled all available current and historical occurrence data
records for the pearl darter in both the Pascagoula and Pearl River
drainages.
(2) Used confirmed presence from 1994-2021 as the foundation for
identifying areas currently occupied in the Pascagoula River drainage.
(3) Evaluated habitat suitability of stream segments that contain
the identified physical or biological features and that are currently
occupied by the species and retained all occupied stream segments.
(4) Evaluated unoccupied segments of the Pearl River drainage for
suitability of spawning and recruitment, darter reintroduction, and
monitoring and management of a reintroduced population.
(5) Evaluated unoccupied segments of the Pearl River drainage for
connectivity with reaches that were historically occupied and
identified areas containing the physical or biological features
essential to the conservation of the species that may require special
management considerations or protection.
Sources of data for this critical habitat designation include the
proposed and final listing rules (81 FR 64857, September 21, 2016; 82
FR 43885, September 20, 2017), fish collection databases provided by
the MDWFP,

[[Page 20419]]

survey reports and observations, and peer-reviewed publications.

Areas Occupied at the Time of Listing

We used reports and collection data to map species site collections
and occurrences between 1994 and 2021, to determine areas occupied at
the time of listing. Based on the best available scientific data, we
determined that all currently known occupied habitat for the pearl
darter was also occupied by the species at the time of listing and that
these areas contain all of the physical or biological features
essential to the conservation of the species although they may require
special management considerations or protection.
As stated above, we delineated units based on documented
occurrences and the existing physical or biological features essential
to the conservation of the species. Collection occurrence patterns
suggest that adult pearl darter migrate upstream to spawn in suitable
gravel or bedrock reaches with elevated spring river discharge
dispersing larvae and juveniles into downstream reaches; an alternative
hypothesis considers that the pearl darter moves from shallow, easily
collected spawning habitats into deeper habitats where it is more
difficult to detect the fish (see Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring, above). While both hypotheses
are partially supported by data, we note that the disappearance of the
species from the Pearl River drainage occurred fairly rapidly and
simultaneously in all stream orders, suggesting some element of
migration may be involved in the darter's life history. To allow for
potential seasonal movement between stream reaches, we are designating
one continuous unit of occupied critical habitat within the Pascagoula
River drainage. This unit includes portions of the Chunky, Bouie, Leaf,
Chickasawhay, and Pascagoula Rivers as well as reaches of Okatoma and
Big Black Creeks as described below under Final Critical Habitat
Designation.
Clark et al. (2018, entire) provides a thorough review of the
distribution of the species from 1950 through 2016, throughout both the
Pearl River and Pascagoula River drainages prior to the listing of the
species in 2017. Since the 2017 listing of the species, there have been
86 site collections of pearl darter in the Pascagoula River drainage
(Wagner et al. 2019, pp. 8-18; Schaefer et al. 2020, pp. 26-27, 43-44;
Ellwanger et al. 2021, p. 5). One of these collections in 2018 extended
the known range approximately 60 mi (97 km) in Black Creek, above its
confluence with the occupied reach of Big Black Creek (Schaefer et al.
2020, pp. 26-27). An additional collection in 2021 extended the known
historical range approximately 4.0 river mi (6.4 river km) upstream in
the Chunky River, which is upstream of the second-most upstream State
Highway 80 and Chunky River crossing (Ellwanger et al. 2021, p. 10). We
consider this additional mileage of stream reach to be occupied at the
time of listing because the reaches between the previously identified
populations in Big Black Creek or Chunky River and the newly discovered
populations upstream both have the physical or biological features
essential to the conservation of the species and its potential seasonal
migration. Further, there are no impediments to connectivity between
the new occurrence records and the areas that were known to be occupied
when the species was listed in 2017. The potential for seasonal
migration, the species' small size and rarity, and the fact that
surveys for the pearl darter are difficult and not always definitive of
the species' absence within a particular reach of an occupied stream
also support considering this area occupied at the time of listing.
In making these determinations, we recognize that collection sites
for the pearl darter occur at areas generally accessible to fish
biologists and that occupied habitats within a river reach may vary
depending upon life stage, stream size, and season. Additionally,
stream habitats are highly dependent upon upstream and downstream
channel habitat conditions for their maintenance. Therefore, we
considered the areas occupied at the time of listing to extend from an
identifiable landmark (e.g., bridge crossing, tributary confluence,
etc.) nearest the uppermost records within second or third order
streams through their confluence with third and fourth order streams
downstream to an identifiable landmark near the lowermost areas of
collection in the Pascagoula River (i.e., forks of the East and West
Pascagoula River). Within the current range of the pearl darter within
the Pascagoula River drainage, some habitats may or may not be actively
used at all times by individuals; however, these areas are necessary
for maintaining population connectivity as well as other physical or
biological features essential to the conservation of the species and,
therefore, are considered the geographic area occupied at the time of
listing for the pearl darter. This area (referred to below as Unit 1:
Pascagoula River Unit) contains all of the physical or biological
features essential to the conservation of the pearl darter but may
require special management conditions or protections.

Areas Unoccupied at the Time of Listing

To consider areas not occupied by the species at the time of
listing for designation, we must demonstrate that these areas are
essential for the conservation of the pearl darter. The occupied
critical habitat designation does not include geographic areas within
the Pearl River drainage--the only other area in which the pearl darter
historically occurred--as it is considered extirpated in that drainage.
In addition, because the Pascagoula River drainage population is the
only extant population, that population provides no redundancy for the
species. Based upon the species' rapid and system-wide extirpation from
the Pearl River drainage, a series of back-to-back stochastic events or
a single catastrophic event could similarly significantly reduce
resiliency or extirpate the Pascagoula River population. For these
reasons, we determined that we cannot conserve the species by
designating only occupied habitat as it includes only a single
population in a single drainage. Thus, we determined that habitat in
another historical drainage is needed for the long-term survival and
recovery of the species. Therefore, because we determined that the one
occupied area alone is not adequate for the conservation of the
species, we have identified and are designating as critical habitat
specific areas outside the geographical area occupied by the species at
the time of listing that are essential for the conservation of the
species. We used historical occurrence data and the physical or
biological features described earlier to identify unoccupied habitat
essential for the conservation of the pearl darter.
Based on our review, we determined that the lower Strong River, a
major tributary of the Pearl River, has the potential for future
reintroduction and reoccupation by the pearl darter provided that
stressors are managed and mitigated. Reestablishing a population in the
Strong River will restore the species' redundancy within the historical
range and increase the species' ecological representation. The specific
area of the lower Strong River encompasses the minimum area of the
species' historical range within the Pearl River drainage while still
providing ecological diversity so that the species can evolve and adapt
over time. This river reach also provides the potential for the pearl
darter to expand its range into other historically occupied areas that
currently may be or may later become suitable to ensure that the

[[Page 20420]]

species has an adequate level of redundancy within the Pearl River
drainage and guard against future catastrophic events. The lower Strong
River also represents the stream reach within the historical range with
the best potential for reestablishment of a population in the Pearl
River due to current conditions, suitability for reintroductions, and
access for monitoring.
Accordingly, we are designating one unoccupied unit in the lower
Strong River within the Pearl River drainage. As described below in the
individual unit descriptions (see description for Unit 2: Strong River
Unit below), this unit contains some of the physical or biological
features essential to the conservation of the species and is reasonably
certain to contribute to the conservation of the species.

General Information on the Maps of the Critical Habitat Designation

The areas designated as critical habitat include only stream
channels within the ordinary high-water line. There are no developed
areas within the critical habitat boundaries except for transportation
and pipeline crossings, which do not remove the suitability of these
areas for the pearl darter. When determining critical habitat
boundaries, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack physical or biological features necessary for
pearl darter. The scale of the maps we prepared under the parameters
for publication within the Code of Federal Regulations may not reflect
the exclusion of such developed lands. Any such lands inadvertently
left inside critical habitat boundaries shown on the maps of this rule
have been excluded by text in the rule and are not designated as
critical habitat. Therefore, a Federal action involving these lands
will not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We have determined that occupied areas are inadequate to
ensure the conservation of the species. Therefore, we are designating
additional areas as unoccupied critical habitat. We have determined
that these units are habitat for the species and will both contribute
to the conservation of the species and contain at least one physical or
biological features essential to the conservation of the species (see
description for Unit 2: Strong River Unit below for explanation).
The two units are designated based on one or more of the physical
or biological features being present to support pearl darter's life-
history processes. One unit contains all of the identified physical or
biological features and supports multiple life-history processes. The
other unit contains only some of the physical or biological features
necessary to support the pearl darter's particular use of that habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2020-0062, on our
internet site <a href="https://fws.gov/office/mississippi-ecological-services">https://fws.gov/office/mississippi-ecological-services</a>,
and at the field office responsible for the designation (see FOR
FURTHER INFORMATION CONTACT).

Final Critical Habitat Designation

We are designating approximately 524 river mi (843 river km) in two
units as critical habitat for pearl darter. The critical habitat areas
we describe below constitute our current best assessment of areas that
meet the definition of critical habitat for pearl darter. The two areas
designated as critical habitat are: (1) Pascagoula River Unit and (2)
Strong River Unit. Table 1 shows the critical habitat units and the
approximate area of each unit.

Table of Critical Habitat Units for Pearl Darter
[Unit length estimates include only stream channels within the ordinary high-water line]
----------------------------------------------------------------------------------------------------------------
Riparian land ownership
----------------------------------------------------------------------------------
Unit Federal mi State mi County mi Private mi Total mi
Occupancy (km) (km) (km) (km) (km)
----------------------------------------------------------------------------------------------------------------
1. Pascagoula River.......... Occupied........ * 45 (72) * 76 (122) .......... 380 (611) * 494 (794)
2. Strong River.............. Unoccupied...... .......... ........... 0.4 (0.6) 30 (48.4) 30 (49)
----------------------------------------------------------------
Total mi (km)............ ................ * 45 (72) * 76 (122) 0.4 (0.6) 410 (659.4) * 524 (843)
----------------------------------------------------------------------------------------------------------------
* 7 mi (11 km) of pearl darter critical habitat stream miles shared between State and Federal lands.
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for pearl darter, below.

Unit 1: Pascagoula River Unit

Unit 1 consists of 494 river mi (794 river km) of occupied
connected river and stream channels within the Pascagoula River
drainage in Mississippi, including:
<bullet> 63 mi (102 km) of the Pascagoula River channel from its
confluence with the West Pascagoula River in Jackson County, upstream
to the confluence of the Leaf and Chickasawhay Rivers in George County;
<bullet> 80 mi (129 km) of Big Black Creek/Black Creek channel from
its confluence with the Pascagoula River in Jackson County, upstream to
U.S. Highway 49 Bridge in Forrest County;
<bullet> 160 mi (257 km) of Chickasawhay River channel from its
confluence with the Leaf River just north of Enterprise, Clarke County,
upstream to the confluence of Okatibbee Creek and Chunky River in
Clarke County;
<bullet> 28 mi (45 km) of Chunky River channel from its confluence
with Okatibbee Creek in Clarke County, upstream to the third (most
upstream)

[[Page 20421]]

Highway 80 Crossing in Newton County;
<bullet> 119 mi (192 km) of Leaf River channel from its confluence
with the Chickasawhay River in George County, upstream to the bridge
crossing at U.S. Highway 84 in Covington County;
<bullet> 15 mi (24 km) of Bouie River channel from its confluence
with the Leaf River, upstream to the confluence of Okatoma Creek in
Forrest County; and
<bullet> 28 mi (45 km) of Okatoma Creek from its confluence with
the Bouie River in Forrest County, upstream to the bridge crossing at
U.S. Highway 84 in Covington County.
The riparian lands (channel borders) in this unit are generally
privately owned agricultural or silvicultural lands with short reaches
owned and managed by the U.S. Forest Service or the State (see table
above). All channel segments in Unit 1 are occupied by the pearl
darter, and the unit contains all the physical or biological features
essential to the conservation of the species, including deep pools,
runs, and bends and scour holes; mixtures of bottom substrates of fine
and coarse sand, silt, loose clay, coarse gravel, fine and coarse
particulate organic matter, and woody debris; a natural hydrograph with
flows and water quality that currently support the normal life stages
of the pearl darter; and the species' prey sources.
Special management considerations and protections that may be
required to address threats within the unit include minimizing surface
water withdrawals or other actions that alter stream flow; reducing
excessive use of manures, fertilizers, and pesticides near stream
channels; improving treatment of wastewater discharged from permitted
facilities; and implementing practices that protect or restore riparian
buffer areas along stream corridors.

Unit 2: Strong River Unit

Unit 2 consists of 30 river mi (49 river km) of unoccupied habitat
in the Strong River channel from its confluence with the Pearl River,
upstream to U.S. Highway 49, in Simpson County, Mississippi. The
riparian lands in this unit are generally privately owned agricultural
or silvicultural lands with a short channel reach (0.39 mi (0.63 km))
owned and operated by the Simpson County Park Commission (see table
above). Unit 2 is not within the geographic range occupied by the pearl
darter at the time of listing, but this area was historically known to
provide spawning and recruitment habitat prior to the species'
extirpation from the Pearl River drainage. This unit currently provides
some of the physical or biological features essential to the
conservation of the pearl darter, including a stable channel with
bottom substrates of fine and coarse sand, silt, loose clay, coarse
gravel, fine and coarse particulate organic matter, and woody debris; a
natural hydrograph with flows to support the normal life stages of the
pearl darter; and the species' prey sources. Further evidence of the
presence of physical or biological features within this reach of the
Strong River is demonstrated by recent increases in other benthic fish
species (e.g., frecklebelly madtom) that declined concurrent with the
extirpation of the pearl darter (Piller et al. 2004, pp. 1007-1011;
Wagner et al. 2018, pp. 4-5).
As described above, the best available information demonstrates
that the pearl darter disappeared from the entire Pearl River and all
known tributary segments virtually simultaneously. Therefore, it is
possible that a series of back-to-back stochastic events or a single
catastrophic event could significantly reduce or extirpate the
surviving pearl darter population within the Pascagoula River drainage.
Due to the species' lack of redundancy, its naturally small numbers
within the Pascagoula River drainage, and its short life span, the
pearl darter is more vulnerable to existing and future threats,
including habitat degradation and loss, catastrophic weather events,
and introduced species. This unit would serve to protect habitat needed
to reestablish a wild population within the historical range in the
Pearl River drainage and recover the species. Reestablishing a
population of the pearl darter within Unit 2 also would increase the
species' redundancy and restore ecological representation, better
ensuring its survival if a stochastic event were to impact the
Pascagoula River population. This unit is essential for the
conservation of the species because it will provide habitat for range
expansion in known historical habitat that is necessary to increase
viability of the pearl darter by increasing its resiliency, redundancy,
and representation.
The need for reintroduction of the pearl darter into the Pearl
River drainage has been recognized and is being discussed by our
conservation partners. The landowner of the type locality (location
where the species was described) within the Strong River unit has been
working with the Service and MDWFP to regularly monitor for the
presence of the pearl darter and other benthic fish and expressed
interest in reestablishing the species on the property. Methods and
facilities for propagating the species have been developed, tested, and
proven at a Service fish hatchery. Accordingly, we are reasonably
certain this unit will contribute to the conservation of the pearl
darter.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the

[[Page 20422]]

likelihood of jeopardy and/or destruction or adverse modification of
critical habitat. We define ``reasonable and prudent alternatives'' (at
50 CFR 402.02) as alternative actions identified during consultation
that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (d) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but Congress also enacted some
exceptions in 2018 to the requirement to reinitiate consultation on
certain land management plans on the basis of a new species listing or
new designation of critical habitat that may be affected by the subject
Federal action. See 2018 Consolidated Appropriations Act, Public Law
115-141, Div, O, 132 Stat. 1059 (2018).

Application of the ``Adverse Modification'' Standard

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would block or disconnect stream and river
channels. Such activities could include, but are not limited to, the
construction of dams or weirs, channelization, and mining. These
activities could result in destruction of habitat, block movements
between seasonal habitats, fragment and isolate subpopulations within
critical habitat units, and/or affect flows within or into critical
habitat.
(2) Actions that would affect channel substrates and stability.
Such activities include channelization, impoundment, mining, road and
bridge construction, removal of riparian vegetation, and land clearing
within or into critical habitat. These activities may lead to changes
in channel substrates, erosion of the streambed and banks, and
excessive sedimentation that could degrade pearl darter habitat.
(3) Actions that would reduce flow levels or alter flow regimes
within or into critical habitat. These could include, but are not
limited to, activities that block or lower surface flow or groundwater
levels, including channelization, impoundment, groundwater pumping, and
surface water withdrawal or diversion. Such activities can result in
long-term changes in stream flows that affect habitat quality and
quantity for the darter and its prey.
(4) Actions that would affect water chemistry or temperature or
introduce pollutants and nutrients at levels above State of Mississippi
criteria. Such activities include, but are not limited to, the release
of chemical pollutants, biological pollutants, or heated effluents into
the surface water or connected groundwater at a point source or by
dispersed release (non-point source). These activities could alter
water quality conditions to levels that are beyond the tolerances of
the pearl darter or its prey species.
(5) Actions that would result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or in the introduction of other species that compete with or prey on
the pearl darter. Possible actions could include, but are not limited
to, stocking of non-native fishes or other related actions. These
activities also can introduce parasites or disease or affect the
growth, reproduction, and survival of the pearl darter.

Exemptions

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

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. There are no DoD lands with a completed INRMP within the
final critical habitat designation.

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

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered

[[Page 20423]]

Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--both of which
were developed jointly with the National Marine Fisheries Service
(NMFS). We also refer to a 2008 Department of the Interior Solicitor's
opinion entitled ``The Secretary's Authority to Exclude Areas from a
Critical Habitat Designation under Section 4(b)(2) of the Endangered
Species Act'' (M-37016). We explain each decision to exclude areas, as
well as decisions not to exclude, to demonstrate that the decision is
reasonable.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor.

Exclusions Based on Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2020, entire; IEc 2021, entire). The analysis, dated July
13, 2020, was made available for public review from July 13, 2021,
through September 13, 2021 (IEc 2020, entire). The economic analysis
addressed probable economic impacts of critical habitat designation for
the pearl darter. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of the critical habitat designation for the pearl darter is
summarized below and available in the screening analysis for the pearl
darter (IEc 2020, entire; IEc 2021, entire), available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
We received public comment on our draft economic analysis during
the public comment period and updated the analysis based on public
comments. The economic analysis now considers the addition of 6.5 river
mi (10.5 river km) of critical habitat in the Chunky River. Because the
initial assessment considered economic impacts across the entire
Pascagoula River basin and the additional river segment falls within
the boundary of this watershed, the updates made to the economic
analysis did not change the overall conclusions of the analysis.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the pearl darter, first we
identified in the IEM dated April 21, 2020, probable incremental
economic impacts associated with the following categories of
activities: (1) roadway and bridge construction and repair; (2)
commercial or residential development; (3) dredging; (4) groundwater
pumping; (5) instream dams and diversions; (6) storage, distribution,
or discharge of chemical pollutants; (7) oil and gas; (8) utilities;
(9) water quantity and supply; and (10) water quality. We considered
each industry or category individually. Additionally, we considered
whether their activities have any Federal involvement. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the pearl darter is present, Federal
agencies already are required to consult with the Service under section
7 of the Act on activities they fund, permit, or implement that may
affect the species. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the pearl
darter's critical habitat. The following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the pearl darter also would likely adversely
affect the essential physical or biological features of critical
habitat. The IEM outlines our rationale concerning this limited
distinction between baseline conservation efforts and incremental
impacts of the designation of critical habitat for this species. This
evaluation of the incremental effects has been used as the basis to
evaluate the probable incremental economic impacts of this designation
of critical habitat.
The critical habitat designation for the pearl darter totals
approximately 524 mi (843 km) of river and stream channels in two
units. Riparian lands bordering the critical habitat are under private
(78 percent), county (0.1 percent), State (15 percent), and Federal (9
percent) ownership. A small portion (1.3 percent) has shared State and
Federal ownership. Unit 1 is occupied by the pearl darter and
represents 94 percent of the proposed critical habitat. Within this
occupied unit, any actions that may affect the species or its habitat
would also affect designated critical habitat, and it is unlikely that
any additional conservation efforts would be recommended to address the
adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the pearl
darter. Therefore, only administrative costs are expected in actions
affecting this unit. While this additional analysis will require time
and resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs would not be
significant because they are predominantly administrative in nature.
Unit 2 is currently unoccupied by the species but is essential for
the conservation of the species. This unit totals 30 mi (49 km) of
river and stream channels and comprises 6 percent of the total proposed
critical habitat designation. In this unoccupied area, any conservation
efforts or associated probable impacts would be considered incremental
effects attributed to the critical habitat designation. However, two
threatened species, Gulf sturgeon and ringed map turtle currently
occupy this unit. Conservation efforts to protect these species also
would protect pearl darter critical habitat.
The economic analysis finds that the total annual incremental costs
of critical habitat designation for the pearl darter are not
anticipated to reach $100 million in any given year based on the
anticipated annual number of consultations and associated
administrative costs, which are not

[[Page 20424]]

expected to exceed $710,000 in any year.
In Unit 1, which constitutes 94 percent of the critical habitat
area, the activities that may affect the critical habitat are already
subject to section 7 consultation due to the presence of pearl darter.
We determined that the project modification recommendations made to
avoid jeopardy to the pearl darter also would result in the avoidance
of adverse modification. Thus, for projects and activities occurring in
Unit 1, no additional project modification recommendations are likely
to result from this critical habitat rule and costs would be limited to
additional administrative effort.
A relatively small fraction (6 percent) of the critical habitat
designation is in Unit 2, which is not currently occupied by the
species. In these areas, activities that may affect the critical
habitat for the pearl darter are also already subject to section 7
consultation due to the presence of other listed species (Gulf sturgeon
and ringed map turtle) with similar habitat requirements. Additionally,
activities that may affect pearl darter critical habitat in Unit 2
generally implement project modification recommendations from a
standardized set provided in the Mississippi Standard Local Operations
Procedures for Endangered Species (SLOPES) agreement. Through this
agreement that was entered into in June 2017, the U.S. Army Corps of
Engineers (COE) and the Service have established routine procedures for
jointly implementing section 7 requirements for all projects that
require COE permits. The agreement requires the COE to consult species-
specific SLOPES documents to determine if a project is expected to
adversely affect the species or its habitat. As part of the agreement,
species-specific avoidance and minimization measures have been
established for COE projects. The measures described for the pearl
darter are similar to the measures described for overlapping species.
Because the COE addresses permitting for projects with water impacts,
all projects with a Federal nexus in the pearl darter critical habitat
are likely to follow the Mississippi SLOPES procedures and
recommendations. Therefore, even absent critical habitat designation,
these activities are likely to avoid adverse effects on the habitat.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the pearl darter based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

In preparing this rule, we have determined that there are no lands
within the designated critical habitat for pearl darter that are owned
or managed by the DoD or Department of Homeland Security, and,
therefore, we anticipate no impact on national security or homeland
security. We did not receive any additional information during the
public comment period for the proposed designation regarding impacts of
the designation on national security or homeland security that would
support excluding any specific areas from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19, as well as the 2016 Policy.

Exclusions Based on Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security as discussed above. To identify other relevant impacts that
may affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs), or whether
there are non-permitted conservation agreements and partnerships that
would be encouraged by designation of, or exclusion from, critical
habitat. In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
We are not excluding any areas from critical habitat. In preparing
this final rule, we have determined that there are currently no HCPs or
other management plans for the pearl darter, and the designation does
not include any Tribal lands or trust resources. We anticipate no
impact on Tribal lands, partnerships, or HCPs from this final critical
habitat designation. We did not receive any information during the
public comment period for the proposed rule regarding other relevant
impacts to support excluding any specific areas from the final critical
habitat designation under the authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.
Accordingly, the Secretary is not exercising her discretion to exclude
any areas from this final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions,

[[Page 20425]]

including school boards and city and town governments that serve fewer
than 50,000 residents; and small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself; in other words, the RFA does not require agencies to
evaluate the potential impacts to indirectly regulated entities. The
regulatory mechanism through which critical habitat protections are
realized is section 7 of the Act, which requires Federal agencies, in
consultation with the Service, to ensure that any action authorized,
funded, or carried out by the agency is not likely to destroy or
adversely modify critical habitat. Therefore, under section 7, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, we certify that this
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
July 13, 2021, proposed rule (86 FR 36678) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.

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

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no statement of energy effects is required.

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

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

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the pearl darter in a takings implications assessment. The
Act does not authorize us to regulate private actions on private lands
or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership or establish any closures or restrictions on use of or access
to the designated areas. Furthermore, the designation of critical
habitat does not affect landowner actions that do not require Federal
funding or permits, nor does it preclude

[[Page 20426]]

development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. However, Federal agencies are prohibited from
carrying out, funding, or authorizing actions that would destroy or
adversely modify critical habitat. A takings implications assessment
has been completed and concludes that this designation of critical
habitat for the pearl darter does not pose significant takings
implications for lands within or affected by the designation.

Federalism--Executive Order 13132

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

Civil Justice Reform--Executive Order 12988

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

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

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

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

Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).

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 federally recognized
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
interests fall within the boundaries of the final critical habitat for
the pearl darter, so no Tribal lands will be affected by the
designation.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Mississippi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

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

[[Page 20427]]

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Fishes
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Darter, pearl.................... Percina aurora..... Wherever found..... T 82 FR 43885, 9/20/
2017; 50 CFR
17.95(e).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Pearl
Darter (Percina aurora)'' following the entry for ``Niangua Darter
(Etheostoma nianguae)'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Pearl Darter (Percina aurora)
(1) Critical habitat units are depicted for Clark, Covington,
Forrest, George, Greene, Jackson, Jones, Lauderdale, Newton, Perry,
Simpson, Stone, and Wayne Counties, Mississippi, on the maps in this
entry.
(2) Within these areas, the physical or biological features
essential to the conservation of pearl darter consist of the following
components:
(i) Unobstructed and stable stream and river channels with:
(A) Connected sequences of channel runs and bends associated with
pools and scour holes; and
(B) Bottom substrates consisting of fine and coarse sand, silt,
loose clay, coarse gravel, fine and coarse particulate organic matter,
or woody debris.
(ii) A natural flow regime necessary to maintain instream habitats
and their connectivity.
(iii) Water quality conditions, including cool to warm water
temperatures (8 to 30 [deg]C (46.4 to 86.0 [deg]F)), high dissolved
oxygen (5.8 to 9.3 mg/l), slightly acidic to basic pH (6.3 to 7.6), and
low levels of pollutants and nutrients meeting the current State of
Mississippi criteria, as necessary to maintain natural physiological
processes for normal behavior, growth, and viability of all life stages
of the species.
(iv) Presence of a prey base of small aquatic macroinvertebrates,
including larval mayflies, larval caddisflies, larval black flies,
ostracods (crustaceans), chironomids (midges), and gastropods (snails).
(3) Critical habitat includes only the stream channels within the
ordinary high water line and does not include manmade structures (such
as buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
May 8, 2023.
(4) Data layers defining map units were created using U.S.
Geological Survey's National Hydrography Dataset flowline data on a
base map of State and County boundaries from the U.S. Department of
Agriculture's Natural Resources Conservation Service. Critical habitat
units were mapped using the Geographic Coordinate System North American
1983 coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site at <a href="https://fws.gov/office/mississippi-ecological-services">https://fws.gov/office/mississippi-ecological-services</a>, at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2020-0062, and at
the field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Pearl Darter (Percina aurora) paragraph (5)

[[Page 20428]]

[GRAPHIC] [TIFF OMITTED] TR06AP23.007

(6) Unit 1: Pascagoula River drainage, Clarke, Covington, Forrest,
George, Greene, Lauderdale, Jackson, Jones, Newton, Perry, Stone, and
Wayne Counties, Mississippi.
(i) Unit 1 consists of 494 river miles (mi) (794 river kilometers
(km)) of connected river and stream channels within the Pascagoula
River drainage, including:
(A) The Pascagoula River from its confluence with the West
Pascagoula River in Jackson County, upstream 63 mi (102 km) to the
confluence of the Leaf and Chickasawhay Rivers in George County;
(B) The Big Black/Black Creek from its confluence with the
Pascagoula River in Jackson County, upstream 80 mi (129 km) to U.S.
Highway 49 Bridge in Forrest County;
(C) The Chickasawhay River from its confluence with the Leaf River
just north of Enterprise, Clarke County, upstream 160 mi (257 km) to
the confluence of Okatibbee Creek and Chunky River in Clarke County;
(D) The Chunky River from its confluence with Okatibbee Creek in
Clarke County, upstream 28 mi (45 km) to the third (most upstream)
Highway 80 Crossing in Newton County;

[[Page 20429]]

(E) The Leaf River from its confluence with the Chickasawhay River
in George County, upstream 119 mi (192 km) to the bridge crossing at
U.S. Highway 84 in Covington County;
(F) The Bouie River from its confluence with the Leaf River,
upstream 15 mi (24 km) to the confluence of Okatoma Creek, in Forrest
County; and
(G) The Okatoma Creek from its confluence with the Bouie River in
Forrest County, upstream 28 mi (45 km) to the bridge crossing at U.S.
Highway 84 in Covington County.
(ii) The channel borders (and therefore the stream channel bottoms)
in Unit 1 are generally privately owned agricultural or silvicultural
lands with the exception of 76 mi (122 km) of the Pascagoula River
channel border owned and managed by the Mississippi Department of
Wildlife, Fisheries, and Parks, and 45 mi (72 km) owned by the U.S.
Forest Service.
(iii) Map of Unit 1 follows:

Figure 2 to Pearl Darter (Percina aurora) paragraph (6)(iii)
[GRAPHIC] [TIFF OMITTED] TR06AP23.008

[[Page 20430]]

(7) Unit 2: Strong River, Simpson County, Mississippi.
(i) Unit 2 consists of approximately 30 mi (49 km) of the Strong
River channel from its confluence with the Pearl River, upstream to
U.S. Highway 49 in Simpson County.
(ii) The channel borders (and therefore the stream channel bottoms)
in this unit are generally privately owned agricultural or
silvicultural lands with the exception of a short channel reach (0.39
mi (0.63 km)) owned and managed by the Simpson County Park Commission.
(iii) Map of Unit 2 follows:

Figure 3 to Pearl Darter (Percina aurora) paragraph (7)(iii)
[GRAPHIC] [TIFF OMITTED] TR06AP23.009

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-07081 Filed 4-5-23; 8:45 am]
BILLING CODE 4333-15-C

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