Rule2023-20945
Endangered and Threatened Wildlife and Plants; Reclassification of the Relict Darter From Endangered to Threatened With a Section 4(d) Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 27, 2023
Effective
October 27, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), reclassify the relict darter (Etheostoma chienense) from endangered to threatened under the Endangered Species Act of 1973 (Act), as amended. The relict darter is a fish species that occupies the Bayou de Chien stream system in western Kentucky. This action is based on a thorough review of the best available scientific and commercial information, which indicates that relict darter is not currently in danger of extinction throughout all or a significant portion of its range, but it is still likely to become so in the foreseeable future. We are also finalizing a rule under section 4(d) of the Act that provides for the conservation of the relict darter.
Full Text
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[Federal Register Volume 88, Number 186 (Wednesday, September 27, 2023)]
[Rules and Regulations]
[Pages 66280-66296]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20945]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2021-0093; FF09E22000 FXES1113090FEDR 234]
RIN 1018-BF56
Endangered and Threatened Wildlife and Plants; Reclassification
of the Relict Darter From Endangered to Threatened With a Section 4(d)
Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify
the relict darter (Etheostoma chienense) from endangered to threatened
under the Endangered Species Act of 1973 (Act), as amended. The relict
darter is a fish species that occupies the Bayou de Chien stream system
in western Kentucky. This action is based on a thorough review of the
best available scientific and commercial information, which indicates
that relict darter is not currently in danger of extinction throughout
all or a significant portion of its range, but it is still likely to
become so in the foreseeable future. We are also finalizing a rule
under section 4(d) of the Act that provides for the conservation of the
relict darter.
DATES: This rule is effective October 27, 2023.
ADDRESSES: Public 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-2021-0093.
FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Kentucky Ecological Services Field Office,
330 West Broadway, Suite 265, Frankfort, KY 40601; telephone 502-695-
0468. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction throughout all or
a significant portion of its range). We are reclassifying the relict
darter as a threatened species (i.e., ``downlisting'' the species)
because we have determined it is not currently in danger of extinction.
Reclassifying a species under the Act can only be accomplished by
issuing a rule through the Administrative Procedure Act rulemaking
process (5 U.S.C. 551 et seq.).
What this document does. This rule reclassifies relict darter from
an endangered species to a threatened species on the Federal List of
Endangered and Threatened Wildlife (List), with a rule issued under
section 4(d) of the Act, based on the species' current status, which
has been improved through implementation of conservation actions.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. Based on the status review, the current threats
analysis, and evaluation of conservation measures, we conclude that the
relict darter no longer meets the Act's definition of an endangered
species and should be reclassified to a threatened species. The species
is no longer in danger of extinction throughout all or a significant
portion of its range but is likely to become so within the foreseeable
future.
We have determined that the relict darter is a threatened species
due to the following threats:
<bullet> Habitat destruction and modification caused by
sedimentation, stream channelization, removal of riparian vegetation,
drainage of riparian wetlands, and point and nonpoint source discharges
(Factor A).
<bullet> Drought, accidental spills, and other potential
catastrophic events (Factor E).
<bullet> Low genetic diversity resulting in reduced adaptive
capacity and the inability to withstand stochastic disturbances (Factor
E).
<bullet> Effects from climate change that are likely to exacerbate
the impacts of drought, hurricanes, and flooding associated with storms
and hurricanes in the future (Factor E).
Section 4(d) rule. We are issuing a rule under the authority of
section 4(d) of the Act (a ``4(d) rule'') for the relict darter. The
4(d) rule specifically tailors the incidental take exceptions for the
relict darter to provide protective mechanisms to State and Federal
partners so that they may continue certain activities that are not
anticipated to cause direct injury or mortality to the relict darter.
These activities will facilitate the conservation and recovery of the
species through routine enforcement, assisting sick or injured fish,
and the active habitat management this species uniquely requires.
Previous Federal Actions
Please refer to the proposed downlisting rule (87 FR 12056; March
3, 2022) for a detailed description of previous Federal actions
concerning the relict darter.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered all
comments we received during the comment period from the peer reviewers
and the public on the proposed rule to reclassify the relict darter.
Minor, nonsubstantive changes and clarifications were made to the
species status assessment (SSA) report and this document in response to
comments. In preparing this final rule,
[[Page 66281]]
we also refined the Status Throughout a Significant Portion of Its
Range analysis in order to better explain our determinations. However,
the information we received during the peer review and public comment
period on the proposed rule did not change our analysis, rationale, or
determination for reclassifying the relict darter as a threatened
species under the Act or for the 4(d) rule for the species.
Summary of Comments and Recommendations
In the proposed rule published on March 3, 2022 (87 FR 12056), we
requested that all interested parties submit written comments on the
proposal by May 2, 2022. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. A
newspaper notice inviting general public comment was published in the
Paducah Sun on April 2, 2022. We did not receive any requests for a
public hearing. All substantive information received during the comment
period has either been incorporated directly into this final
determination or is addressed below.
Peer Reviewer Comments
As discussed in Supporting Documents below, we received comments
from three peer reviewers. We reviewed all comments we received from
the peer reviewers for substantive issues and new information regarding
the information contained in the SSA report. The peer reviewers
generally concurred with our methods and conclusions, and provided
additional information, clarifications, and suggestions to improve the
final SSA report. Peer reviewer comments are addressed in the following
summary and were incorporated into the final SSA report as appropriate.
(1) Comment: Two peer reviewers and one State partner reviewer
suggested we revise the species' taxonomic discussion in chapter 2 of
the SSA based on new information presented by Near et al. (2011).
Our response: We incorporated the reference and modified the text
to follow the phylogeny (classification) presented by Near et al.
(2011). The relict darter is one of 11 recognized/valid species in the
Etheostoma squamiceps complex (clade Stigmacerca).
(2) Comment: One peer reviewer asked for clarification on whether
the Little Bayou de Chien population was included in genetic analyses
conducted by Kattawar and Piller (2020).
Our response: Kattawar and Piller (2020) analyzed tissue samples
from across the species' range, including the Little Bayou de Chien
watershed. Their analyses demonstrated a panmictic population, where
random mating occurs among all individuals in the Bayou de Chien
watershed. We added clarifying text to the SSA report to reflect this
information.
(3) Comment: One peer reviewer asked if anything is known about the
larval drift phase of the relict darter. They commented that similar
species become benthic upon hatching, suggesting that the larval phase
would have a low dispersal ability.
Our response: Larval relict darters become benthic immediately
after hatching, suggesting low dispersal ability for the larval stage
(Shute 2020, pers. comm.). New text was added to the life-history
diagram (figure 4) and table 1 of the SSA report.
(4) Comment: One peer reviewer suggested that genetic drift would
not be a significant threat to the relict darter due to the apparent
panmictic population, as demonstrated by the genetic connectivity of
the Little Bayou de Chien and Bayou de Chien populations (Kattawar and
Piller 2020).
Our response: We agree with the reviewer's comment about the relict
darter's panmictic population, so we updated the SSA report and removed
a discussion related to genetic drift and inbreeding depression as a
threat to the relict darter. Despite the evidence of genetic
connectivity, we suspect that the Little Bayou de Chien and Bayou de
Chien populations have limited contemporary gene flow based on recent
survey results and the presence of ecological barriers separating the
two watersheds. Therefore, we retained a brief discussion of genetic
isolation in the SSA report.
(5) Comment: One peer reviewer asked if our estimate of the
species' overall status would change if we recognized a single
population (single management unit) versus the two populations
described in the SSA report.
Our response: Our interpretation of the species' status would not
change under this scenario. If the Bayou de Chien and Little Bayou de
Chien populations were combined in the SSA, we would be left with a
single population with moderate resiliency. Due to its small size and
limited occupancy, the Little Bayou de Chien population would
contribute little to overall resiliency.
(6) Comment: One reviewer suggested we mention the species'
vulnerability to chemical spills in the Bayou de Chien watershed.
Our response: We added additional text in chapter 4 (Water Quality
Degradation) of the SSA report summarizing the species' vulnerability
to chemical spills.
(7) Comment: One peer reviewer suggested that we add a table
summarizing all Kentucky Pollutant Discharge Elimination System (KPDES)
violations in the Bayou de Chien watershed over the last 10 to 15
years.
Our response: In chapter 3 of the SSA report, we added table 3,
which summarizes all current KPDES permits in the Bayou de Chien
watershed. For one permittee, the City of Fulton Treatment Works, we
also summarized all permit violations since 2010.
Public Comments
(8) Comment: Two commenters stated that the reclassification is
premature and untimely, indicating that relict darter is one of the
rarest fishes in the United States, living in only five sites and with
proof of reproduction in only one site. They stated that endemic
species, due to their narrow geographical range are especially prone to
extinction, indicating that habitat degradation and water quality
impairment will impact the species in the future. They also indicated
that small population size and little genetic variability put the
species at risk of extinction.
Our response: We acknowledge in our March 3, 2022, proposed rule
(87 FR 12056) and in this final rule that the relict darter is
naturally a narrow endemic species. We recognize that redundancy and
representation may be inherently low for a narrow endemic like the
relict darter. The fact that the species exhibits little genetic
variation across its range and has a very low effective population size
suggests a past population bottleneck (e.g., rangewide habitat
disturbance) and subsequent genetic drift (loss of rare alleles in a
small population). Its low species redundancy and representation are
tempered by the moderate resiliency of the Bayou de Chien/Jackson Creek
population, which has high relict darter abundance and evidence of
continued reproduction. The increased population size and successful
recruitment trends have improved based on surveys completed during the
past decade and reduce the risk of extinction. Further, this moderately
resilient population has survived threats, primarily because
conservation efforts over the past three decades have improved and
protected habitat within the system, thus enabling the breeding,
feeding, and sheltering
[[Page 66282]]
needs of the relict darter to be met and sustaining the population over
time.
We also acknowledge that habitat loss and degradation through
stream channel disturbance, removal of riparian vegetation, and
pollution continue to affect the species, even though conservation
actions over the past three decades have led to improved habitat
conditions in portions of the Bayou de Chien mainstem and Jackson
Creek, contributing to moderate resiliency for the larger population.
The relict darter has benefited from protection as an endangered
species under the Act and from improvements in water quality and
habitat conditions stemming from both national and Kentucky statutes
and regulations. However, these regulations have not prevented the
degradation of some habitats used by the species. The primary threats
that are currently acting on the species are expected to continue into
the future, climate change is expected to exacerbate existing threats,
and the species' low redundancy and low representation put the species
at risk of extinction throughout all of its range in the foreseeable
future. Thus, after assessing the best available information, we
conclude that the relict darter is not currently in danger of
extinction, but it is likely to become in danger of extinction within
the foreseeable future throughout all of its range, consistent with a
reclassification from endangered to threatened status under the Act.
(9) Comment: One commenter stated that the future conditions model
only predicts how future urbanization could impact habitat and did not
account for other potential sources of habitat disturbance or water
quality impairment, such as agriculture. The commenter stated that the
focus should be to increase conservation efforts to minimize the chance
of adverse changes to physical habitat from human activity.
Our response: As detailed in the SSA report, we determined the rate
of land cover change for each HUC 12 watershed encompassing relict
darter populations using National Land Cover Database (NLCD) data. We
also reviewed land cover change at the HUC 14 level in order to examine
smaller watersheds such as Jackson Creek. Tables summarizing our land
use analysis are provided in appendix E of the SSA report. The NLCD
database considers land cover change that may result from a number of
activities, including urban development, forestry, and agriculture.
Between 2001-2011, total percent forest cover decreased by less than 1
percent across all watersheds, while total percent agriculture (i.e.,
pasture/hay and cultivated crops) and development increased by less
than 1 percent across all watersheds. For our future scenarios, we
assumed the same rate of land cover change for Scenario 1 (continuation
of current trend), a decrease in the rate of land cover change for
Scenario 2, and an increase in the rate of land cover change for
Scenario 3. Therefore, the future scenario analysis does encompass
other sources of habitat disturbance and water quality impairment as
indicated by land use change. Regarding conservation efforts, the Act
requires Federal agencies to utilize their authorities to carry out
conservation programs for the conservation of both threatened and
endangered species. We recognize that future efforts are dependent on
funding availability, available conservation opportunities, and the
willing cooperation of our partners, so only a portion of actions may
be undertaken in the future.
Supporting Documents
An SSA team prepared an SSA report for the relict darter. The SSA
team was composed of Service biologists, in consultation with other
species experts. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
The Service sent the SSA report to three independent peer reviewers and
received three responses. The purpose of peer review is to ensure that
our reclassification determinations and 4(d) rules are based on
scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in the biology, habitat, and threats to the
species.
I. Final Listing Determination
Background
A thorough review of the relict darter's taxonomy, life history,
and ecology is presented in the SSA report (Service 2020, pp. 8-15) and
is summarized below.
Species Information
The relict darter is a small, narrowly endemic, benthic fish that
occupies the Bayou de Chien stream system in western Kentucky. It can
be distinguished from other darters by the number of dorsal fin rays
(bony or cartilaginous spines of first and second fins along top of
body), its breeding behavior (egg-clustering with parental care), and
the color and morphology of the dorsal fins of breeding males. Females
and nonbreeding males have light-tan-colored backs and sides, with
brown mottling and six to eight dark brown saddles. They have white,
unmarked undersides. Breeding males have gray to dark brown sides and
backs and light tan undersides (Page et al. 1992, p. 628).
Taxonomy
The relict darter, Etheostoma chienense, is a member of the Class
Actinopterygii (ray-finned fishes), Order Perciformes, Family Percidae
(perches), and Tribe Etheostomatini (darters) (Etnier and Starnes 1993,
pp. 18-25, 440-441). The relict darter was first discovered in the
Bayou de Chien system in 1975 (Webb and Sisk 1975), reported as E.
squamiceps, but it was not recognized as a distinct species and
described until 1992.
Genetics
A population bottleneck and subsequent genetic drift likely explain
the species' low genetic diversity and low effective population size,
which is estimated at a mean of 221.5 individuals, lower than what is
usually sufficient (500) to retain a species' evolutionary potential
(Soule 1980, pp. 151-169; Kattawar and Piller 2020, entire).
Agricultural expansion within the Bayou de Chien system during the
early to mid-20th century, including widespread channelization and
straightening of stream channels, likely led to a sharp reduction in
the size of the relict darter population. Populations have likely
stabilized some over time, but the effects of a population bottleneck
and subsequent genetic drift appears to have led to low levels of
genetic diversity across the range. Recent field surveys (2010-2019)
suggest that relict darters in Little Bayou de Chien are isolated from
the rest of the system; however, genetic analyses indicate a single
panmictic population, where random mating occurs among all individuals
in the Bayou de Chien system (i.e., individuals can interbreed without
restrictions) (Kattawar and Piller 2020, entire).
Distribution
The relict darter's historical range included the Bayou de Chien
stream system, a 554-square-kilometer (km\2\) (214-square-mile (mi\2\))
watershed located within the Mississippi Valley Loess Plains ecoregion
(Woods et al. 2002, entire) in Fulton, Graves, and
[[Page 66283]]
Hickman Counties, Kentucky (Webb and Sisk 1975, entire; Warren et al.
1994, entire; Piller and Burr 1998, entire). Bayou de Chien is a low-
gradient, sand, gravel, and silt-bottomed stream that begins in
southwestern Graves County and flows westward approximately 47 km (29.2
mi) through Hickman and Fulton Counties, before ultimately emptying
into Obion Creek near Hickman, Kentucky. All but the terminal 8-10 km
(5.0-6.2 mi) of Bayou de Chien have been subjected to extensive
channelization, and the dominant land use is row-crop agriculture (Webb
and Sisk 1975, p. 63). Currently, the relict darter continues to occupy
portions of the Bayou de Chien system in Fulton, Graves, and Hickman
Counties, Kentucky. The species is represented by two geographically
isolated populations: Bayou de Chien/Jackson Creek and Little Bayou de
Chien (Service 2020, p. 20).
Habitat
The species typically occupies slow-flowing runs, glides, or pools
of small to medium-sized, lowland streams with sand and gravel
substrates. In these habitats, the species is most commonly observed
near cover, such as undercut banks, woody debris piles, or snags. An
abundance of woody debris provides a sufficient supply of spawning
substrates and, consequently, the highest mean densities of the species
(Service 2020, p. 10).
Biology
The species feeds primarily on midge larvae and other small
invertebrates. Spawning occurs from mid-March to early June, and the
species has a maximum lifespan of 3 to 4 years. Like all members of the
Etheostoma squamiceps complex, females deposit eggs on the undersides
of submerged objects, and egg clusters are guarded by the male until
hatching occurs (Service 1994, p. 7). During a 1999 survey, most nests
were located on natural materials such as small rocks, woody debris,
and live tree roots, but 37 percent of nests were found on
anthropogenic materials such as rubber tires, plastic, roof shingles,
glass, concrete blocks, metal road signs, and concrete slabs (Piller
and Burr 1998, pp. 147-151).
The species was characterized as uncommon or rare at most
collection sites in the 1990s, generally consisting of 1 to 23
individuals per site (Piller and Burr 1998, pp. 66-71). Recent surveys
indicate the species continues to be rare in some reaches but is more
common in others. Generally, the greatest number of darters per
sampling reach and the highest mean densities (0.43 darters/square
meter) have been observed in Jackson Creek and an approximately 22.6-km
(14.1-mi) reach of Bayou de Chien (0.30 darters/square meter),
extending from just downstream of the U.S. 51 bridge crossing in
Hickman County upstream to the Pea Ridge Road bridge crossing in Graves
County (Service 2020, appendix A).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019). We collectively
refer to these actions as the 2019 regulations.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to
[[Page 66284]]
provide a reasonable degree of confidence in the prediction. Thus, a
prediction is reliable if it is reasonable to depend on it when making
decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R4-ES-2021-0093.
To assess relict darter viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency reflects the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years), redundancy
supports the ability of the species to withstand catastrophic events
(for example, droughts, large pollution events), and representation
supports the ability of the species to adapt over time to long-term
changes in the environment (for example, climate changes). In general,
the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R4-
ES-2021-0093 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. In addition, the SSA
(Service 2019, entire) documents our comprehensive biological status
review for the species, including an assessment of the potential
threats to the species. The following is a summary of this status
review and the best available information gathered since that time that
have informed this decision.
Factors Influencing Relict Darter Viability
At the time of listing in 1993, the relict darter was known only
from the Bayou de Chien mainstem and Jackson Creek, but it was later
discovered in Little Bayou de Chien in 2017 (Service 2019, p. 11).
Threats to the species at the time of listing were water quality and
habitat deterioration resulting from stream channelization, siltation
contributed by incompatible land use practices, and water pollutants
from waste discharges. Relict darter distribution was reduced by these
factors, and because the species was known to inhabit only limited
areas and known to spawn in only one small tributary, it was deemed
vulnerable to extirpation from toxic chemical spills (see 58 FR 68480;
December 27, 1993). Additionally, because of its small population size,
the species' long-term genetic viability was determined to be
questionable at the time of listing.
While the relict darter's viability has improved over time (see
Conservation Efforts, below), three major factors are influencing the
viability of the species now and are expected to affect it into the
future: habitat loss and degradation, restricted range/isolation, and
climate change. Habitat loss and degradation resulting from siltation,
channelization/riparian vegetation removal, drainage of riparian
wetlands, and water quality degradation (pollution) (Factor A) pose the
largest risk to the current and future viability of the relict darter.
Other potential stressors to the species are the restricted range of
the species and climate change (Factor E). We find the species does not
face threats from overutilization (Factor B), disease or predation
(Factor C), or invasive species (Factor E). A brief summary of relevant
stressors is presented below; for a full description, refer to chapter
3 of the SSA report (Service 2020, entire).
Siltation
Siltation is the process whereby excess sediments are suspended or
deposited in a stream. Excessive levels of sediments accumulate and
cover the stream bottom, filling the interstitial spaces with finer
substrates and homogenizing and decreasing the available habitat for
fishes. In severe cases, sediment can bury larger substrate particles
such as gravel and cobble, as well as woody debris. Siltation can
abrade or suffocate fish gills, eggs, and larvae; reduce disease
tolerance; degrade or destroy spawning habitats, affecting egg, larval,
and juvenile development; modify migration patterns; reduce food
availability through the blockage of primary production; and reduce
foraging efficiency (Berkman and Rabeni 1987, pp. 285-294; Waters 1995,
pp. 5-7; Wood and Armitage 1997, pp. 211-212; Meyer and Sutherland
2005, pp. 2-3). Thus, siltation is a threat to all life stages of the
relict darter. In addition, relict darter spawning substrates are
usually the undersides of fixed objects (e.g., wood, tree roots,
cobble, tires), which are vulnerable to the effects of siltation (i.e.,
embeddedness, or being completely covered in sediment) (Service 2020,
p. 14).
Sediment (siltation) is one of the most common stressors of aquatic
communities in the Bayou de Chien system (Kentucky Division of Water
(KDOW) 2018, pp. 43-45). The primary sources of sediment are listed as
agriculture (crop production) and habitat degradation (channel erosion/
incision from upstream
[[Page 66285]]
hydromodifications, dredging, and loss of riparian habitat). The Bayou
de Chien system is extensively farmed (e.g., row crops and livestock),
and a large portion of the system has been deforested. These land use
practices result in a high silt load within the system that continues
to degrade habitats and impact the species. Croplands have the
potential to contribute large sediment loads during storm events,
thereby causing increased siltation and potentially introducing harmful
agricultural pollutants such as pesticides. Unrestricted livestock
access to streams has the potential to cause siltation and other
habitat disturbance (Fraley and Ahlstedt 2000, pp. 193-194). Grazing
may reduce water infiltration rates and increase stormwater runoff;
trampling and vegetation removal increase the probability of erosion
and siltation (Brim Box and Mossa 1999, p. 103). Physical habitat
disturbance from sedimentation is less common in Jackson Creek than in
other portions of the Bayou de Chien system.
Several streams within the Bayou de Chien system have been
identified as impaired due to siltation and have been included by the
State of Kentucky on its list of impaired waters required under section
303(d) of the Clean Water Act (33 U.S.C. 1313(d)) (KDOW 2018, pp. 43-
45). Portions of several streams occupied by the relict darter are on
this list, including Cane Creek (stream kilometers (km) 0-8.5 (stream
miles (mi) 0-5.3)) in Hickman County, Little Bayou de Chien (stream km
1.8-3.8 and 18.8-22.5 (stream mi 1.1-2.4 and 11.7-14.0)) in Fulton and
Hickman Counties, and South Fork Bayou de Chien (stream km 0-12.6
(stream mi 0-7.8)) in Graves County.
Channelization/Riparian Vegetation Removal
Stream channelization is a common practice used to reduce the
effects of flooding, increase the drainage rate of agricultural land,
and maximize the amount of tillable land (Piller and Burr 1998, p. 65).
These modified channels are often managed through vegetation removal
and dredging to improve flood conveyance or through placement of
quarried stone or gabion baskets to protect against bank erosion (Allan
and Castillo 2007, p. 327).
Historically, Bayou de Chien was presumably a free-flowing stream
with alternating areas of riffles, runs, and pools. Since that time,
many stream reaches within the system have been channelized and
converted to deep ditches with uniform depth, velocity, and substrate
(Piller and Burr 1998, p. 71). Channelization has impacted the Bayou de
Chien system by changing stream flow patterns, including reducing
instream flows (especially during drier periods) that stress relict
darters; decreasing aquatic habitat complexity, which affects
sheltering and feeding for relict darters; and reducing stream bank and
floodplain (riparian) vegetation (Piller and Burr 1998, p. 71), which
affects relict darter feeding and breeding resource needs. Channelized
reaches have higher stream velocities and shear stress (a measure of
the force of water against the channel boundary) during high flow
periods (which leads to channel instability and bank erosion), less
instream cover and habitat for aquatic organisms including the relict
darter (decreased habitat complexity), less riparian vegetation and
correspondingly reduced canopies (reduced shade and reduced woody
debris input), and below normal flows during drier periods (Warren et
al. 1994, p. 24; Piller and Burr 1998, p. 71). Thus, the relict darter
is susceptible to impacts from channelization and reductions in
riparian vegetation because these stressors affect flows, habitat
complexity, and instream temperatures and reduce the amount of woody
material, thus affecting sheltering and reproduction needs of the
species.
The reduction or loss of riparian vegetation contributes to
siltation through bank destabilization and the removal of submerged
root systems that help to hold sediments in place while providing
habitat for relict darters and their macroinvertebrate prey (Barling
and Moore 1994, p. 544; Beeson and Doyle 1995, p. 989; Allan 2004, p.
262; Hauer and Lamberti 2006, pp. 721-723; Minshall and Rugenski 2006,
pp. 721-723). Removal of riparian vegetation can also reduce the
stream's capacity for trapping and removing contaminants and nutrients
from runoff; increase solar exposure, resulting in higher water
temperatures; increase algal abundance (primary production); and reduce
inputs of woody debris and leaf litter, thereby reducing food sources
for relict darters and lowering overall stream production (Brazier and
Brown 1973, p. 4; Karr and Schlosser 1978, p. 231; Peterjohn and
Correll 1984, p. 1473; Osborne and Kovacic 1993, p. 255; Barling and
Moore 1994, p. 555; Vought et al. 1994, p. 346; Allan 1995, p. 109;
Wallace et al. 1999, p. 429; Pusey and Arthington 2003, p. 4). Where a
reduction or loss of riparian vegetation occurs, these impacts
negatively affect the quality of habitat available to the relict darter
for breeding, feeding, and sheltering.
Drainage of Riparian Wetlands
With increased agricultural activity in the Bayou de Chien basin
over the last century, much of the basin's vegetation has been cleared,
and many riparian wetlands have been drained to make additional lands
available for farming (Piller and Burr 1998, p. 65). This situation has
caused an overall reduction in the groundwater level and base flows
within Bayou de Chien and its tributaries. Many small streams in the
system become completely dry or consist of isolated pools by the early
fall months (Warren et al. 1994, p. 24). These conditions serve to
isolate populations and subject both the adult and juvenile relict
darters to increased pressure from predators (Service 1994, p. 14).
Dispersal of the species upstream of the Jackson Creek area or into
many downstream tributaries may be limited by instream flow conditions
(Warren et al. 1994, p. 24).
Water Quality Degradation (Pollution)
Information is lacking on the relict darter's tolerance to specific
pollutants, but a variety of contaminants continue to degrade stream
water quality within the Bayou de Chien system, and these pollutants
may affect the relict darter. Several point-source and nonpoint-source
pollutants to aquatic life occur in the Bayou de Chien system (Service
2020, appendix B) (KDOW 2018, pp. 43-45). These pollutants include
copper, iron, lead, excess nutrients (total nitrogen and phosphorus),
and eutrophication originating from two suspected sources--municipal
point source discharges (e.g., sewage treatment) and agriculture (e.g.,
crop production and animal feeding operations). Portions of four
streams that are occupied by relict darter, specifically Bayou de
Chien, Cane Creek, Little Bayou de Chien, and South Fork Bayou de
Chien, were identified as impaired due to these pollutants (KDOW 2018,
pp. 43-45). The impacts of copper, lead, and iron inputs are unknown,
but nutrient inputs and eutrophication can lead to excessive algal
growths and instream oxygen deficiencies that can seriously affect
aquatic species, including the relict darter.
Currently, 13 National Pollutant Discharge Elimination System
permits have been issued authorizing the discharge of pollutants within
portions of the Bayou de Chien system (Fredenberg 2018, pers. comm.;
Service 2020, p. 27). Two sewage treatment plants, the City of Fulton
Treatment Works (Kentucky Pollutant Discharge Elimination System
(KPDES)
[[Page 66286]]
#KY0026913) and the Hickman East Sewage Treatment Plant (KPDES
#KY0028436), discharge treated wastewater directly into Bayou de Chien.
Between January 2010 and April 2020, the Fulton facility received 13
violation notices from KDOW. The notices were issued for permit
exceedances of a variety of chemical parameters (e.g., biochemical
oxygen demand (BOD), total suspended solids (TSS), pH) and for failures
to meet certain monitoring requirements associated with the permit
(Service 2020, appendix C). Insufficient treatment of wastewater could
harm relict darter populations by introducing pollutants (e.g., metals,
bacteria) and altering water quality conditions (e.g., decreased oxygen
levels, elevated pH).
The Bayou de Chien system is also affected by nonpoint-source
pollutants, arising from a variety of diffuse sources. Examples of
nonpoint-source pollutants include sediment (e.g., stormwater runoff
from driveways, fields, construction sites), raw sewage (e.g., septic
tank leakage, straight pipe discharges), animal waste from livestock,
fertilizers, pesticides, herbicides, and road salt (KDOW 2013, pp. 19-
21; KDOW 2018, pp. 43-45). Nonpoint-source pollutants can cause excess
nutrification (increased levels of nitrogen and phosphorus), excessive
algal growths that clog the waterway and affect swimming capability and
visual predation, instream oxygen deficiencies that affect oxygen
intake by relict darters, and other changes in water chemistry that can
affect aquatic species such as the relict darter. Nonpoint-source
pollution from land surface runoff can originate from virtually any
land use activity and has been correlated with impervious surfaces and
storm water runoff (Allan 2004, pp. 266-267). Pollutants may include
sediments, fertilizers, herbicides, pesticides, animal wastes, septic
tank and gray water leakage, pharmaceuticals, and petroleum products.
These pollutants tend to increase concentrations of nutrients and
toxins in the water and alter the chemistry of affected streams such
that the habitat and food sources for species like the relict darter
are negatively impacted.
Due to its linear distribution within the Bayou de Chien mainstem
and Jackson Creek, the relict darter continues to be vulnerable to
accidental chemical or animal waste spills and releases that may result
from traffic accidents, agricultural activities, or permitted
discharges (Warren et al.1994, p. 24). Events of this kind have
affected other aquatic communities in the southeastern United States
during the recent past (Ahlstedt et al. 2016, pp. 8-9), so similar
events have the potential to affect relict darter populations in the
Bayou de Chien system. These events could have devastating effects on
darters in these reaches (Piller and Burr 1996, p. 74) and could pose a
threat to the long-term viability of the species.
Restricted Range/Isolation
The relict darter has always had a limited geographic range,
currently consisting of approximately 52.5 stream km (32.7 stream mi)
within a single stream system in western Kentucky (Bayou de Chien
system). The species was characterized as uncommon or rare at most
collection sites in the 1990s (Piller and Burr 1998, pp. 66-71), and
recent surveys indicate the species continues to be rare in some
reaches but is more common in others.
The species' restricted range and low abundance in some reaches
(e.g., Little Bayou de Chien and Cane Creek) make it more vulnerable to
extirpation from toxic chemical spills, habitat modification,
degradation from land surface runoff (nonpoint-source pollution), and
natural catastrophic changes to their habitat (e.g., flood scour,
drought). In particular, recent survey data indicate that the relict
darter's most successful reproduction occurs in Jackson Creek and
middle and headwater reaches of Bayou de Chien, which are vulnerable to
catastrophic events, such as a single toxic chemical spill or an
extreme weather event such as a drought or flash flood. These events
could have devastating effects on darters in these reaches (Piller and
Burr 1996, p. 74) and could pose a threat to the long-term viability of
the species.
The relict darter is represented by two geographically isolated
populations: Bayou de Chien/Jackson Creek and Little Bayou de Chien
(Service 2020, p. 20). The fact that the Little Bayou de Chien
population is small and isolated from the larger Bayou de Chien/Jackson
Creek population makes it more vulnerable to stochastic and
catastrophic events, thus affecting overall relict darter viability.
Climate Change
Species that are dependent on specialized habitat types, limited in
distribution, or at the extreme periphery of their range may be most
susceptible to the impacts of climate change (Byers and Norris 2011,
pp. 18-19); however, while continued change is certain, the magnitude
and rate of change is unknown in many cases. Climate change has the
potential to increase the vulnerability of the relict darter to random
catastrophic events (McLaughlin et al. 2002, pp. 6060-6074; Thomas et
al. 2004, pp. 145-148). An increase in both severity and variation in
climate patterns is expected; extreme floods, strong storms, and
droughts will become more common (Cook et al. 2004, pp. 1015-1018; Ford
et al. 2011, p. 2065; Intergovernmental Panel on Climate Change 2014,
pp. 58-83). Frequency, duration, and intensity of droughts are likely
to increase in the Southeast as a result of global climate change
(Thomas et al. 2004, pp. 145-148). Stream temperatures in the Southeast
have increased roughly 0.2-0.4 degrees Celsius ([deg]C) (0.4-0.7
degrees Fahrenheit ([deg]F)) per decade over the past 30 years, and as
air temperature is a strong predictor of water temperature, stream
temperatures are expected to continue to rise (Kaushal et al. 2010, p.
465). Predicted impacts of climate change on fishes include disruption
to their physiology (such as temperature tolerance, dissolved oxygen
needs, and metabolic rates), life history (such as timing of
reproduction, growth rate), and distribution (range shifts, migration
of new predators) (Jackson and Mandrak 2002, pp. 89-98; Heino et al.
2009, pp. 41-51; Strayer and Dudgeon 2010, pp. 350-351; Comte et al.
2013, pp. 627-636).
Estimates of the effects of climate change using available climate
models typically lack the geographic precision needed to project the
magnitude of effects at a scale small enough to discretely apply to the
range of a given species. However, data on recent trends and projected
changes for Kentucky (Girvetz et al. 2009, pp. 1-19), and, more
specifically, the Bayou de Chien system (Alder and Hostetler 2017,
entire) provide some insight for evaluating the potential impacts of
climate change to the relict darter. Different emission scenarios have
been used to calculate estimates of average annual increases in maximum
and minimum air temperature, precipitation, snowfall, and other
variables (Alder and Hostetler 2017, entire). These scenarios, called
representative concentration pathways (RCPs), are plausible pathways
toward reaching a target radiative forcing (the change in energy in the
atmosphere due to greenhouse gases) by the year 2100 (Moss et al. 2010,
p. 752). Depending on the chosen model and emission scenario (RCP 8.5
(high) vs. 4.5 (moderate)), annual mean maximum air temperatures for
the Bayou de Chien system are expected to increase by 2.3-3.4 [deg]C
(4.1-6.1 [deg]F) by 2074, while precipitation models predict that the
Bayou de Chien system
[[Page 66287]]
will experience a slight increase in annual mean precipitation (0.5
centimeters/month (0.2 inches/month)) through 2074 (Girvetz et al.
2009, pp. 1-19; Alder and Hostetler 2016, pp. 1-9).
There is uncertainty about the specific effects of climate change
(and their magnitude) on the relict darter; however, climate change is
almost certain to affect aquatic habitats in the Bayou de Chien system
of western Kentucky through increased water temperatures and more
frequent droughts (Alder and Hostetler 2017, entire), and species with
limited ranges, fragmented distributions, and small population size,
such as the relict darter, are thought to be especially vulnerable to
the effects of climate change (Byers and Norris 2011, pp. 18-19). Thus,
we consider climate change to be a threat to the relict darter.
Regulatory Mechanisms
The relict darter and its habitats are afforded some protection
from water quality and habitat degradation under the Clean Water Act,
Kentucky's Forest Conservation Act of 1998 (Kentucky Revised Statutes
(KRS), chapter 149, sections 149.330-355), Kentucky's Agriculture Water
Quality Act of 1994 (KRS, chapter 224, subchapter 71, sections 224.71-
100-224.71-140), and additional Kentucky statutes and regulations
regarding natural resources and environmental protection (KRS, chapter
224; title 401 of the Kentucky Administrative Regulations (KAR) at
Chapters 10:026, 10:029, and 10:031). While it is clear that the
protections afforded by these statutes and regulations have not
prevented the degradation of some habitats used by the relict darter,
the species has undoubtedly benefited from improvements in water
quality and habitat conditions stemming from these regulatory
mechanisms.
Conservation Efforts
The relict darter is listed as endangered in Kentucky (OKNP 2019,
p. 16), making it unlawful to take the species or damage its habitat
without a State permit. Additionally, the relict darter is identified
as a species of greatest conservation need in the Kentucky Wildlife
Action Plan (KDFWR 2013, chapter 2), which outlines actions to promote
species conservation.
Since listing the species (see 58 FR 68480; December 27, 1993), the
Service has worked with multiple agencies and private partners (e.g.,
the U.S. Department of Agriculture's Natural Resources Conservation
Service (NRCS), the Kentucky Department of Fish and Wildlife Resources
(KDFWR), and The Nature Conservancy (TNC)) to implement conservation
actions for the relict darter in the Bayou de Chien system. The
Service's Partners for Fish and Wildlife (PFW) program has taken the
lead role in this effort by providing technical and financial
assistance to agencies and numerous private landowners. PFW has focused
its efforts on the use of best management practices (BMPs) and instream
conservation practices that enhance and restore riparian and instream
habitats used by the relict darter. PFW projects have included a
culvert removal in the headwaters of Bayou de Chien, installation of
livestock alternate watering systems, placement of artificial spawning
structures in Bayou de Chien and Jackson Creek, installation of
livestock exclusion fencing along several kilometers of Bayou de Chien
and Jackson Creek, and restoration of more than 20.2 hectares (50
acres) of native grasses and wildflowers within riparian areas. In
addition to these efforts, PFW biologists have provided over 10 years
of technical assistance to the U.S. Department of Agriculture, Wetland
Reserve Easement Program, for projects within the Bayou de Chien system
(Radomski 2019, pers. comm.). These efforts have resulted in permanent
easements covering more than 1,700 acres (688 hectares) in the upper
Bayou de Chien system (Morris 2020, pers. comm.). These easements will
benefit the relict darter through sediment and nutrient reduction,
shading of stream corridors (via riparian plantings), hydrological
restoration (via plugging of agricultural ditches and improved
groundwater connections), and general habitat creation or wetland
restoration.
Synergistic and Cumulative Effects
In addition to affecting the relict darter individually, it is
possible that several of the risk factors summarized above are acting
synergistically, and all act cumulatively on the species. The combined
impact of multiple stressors is likely more harmful than a single
stressor acting alone. The dual stressors of climate change and direct
human impact have the potential to affect aquatic ecosystems by
altering stream flows and nutrient cycles, eliminating habitats, and
changing community structure (Moore et al. 1997, p. 942). Increased
water temperatures and a reduction in stream flow are the climate
change effects that are most likely to affect stream communities (Poff
1992, entire; Thomas et al. 2004, pp. 145-148), and each variable is
strongly influenced by land use patterns.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Species Viability
For relict darter populations to be sufficiently resilient, the
needs of individuals (slow-flowing riffles and pools, appropriate
substrate, food availability, water quality, and aquatic vegetation or
large woody debris for cover) must be met at a larger scale. Stream
reaches with suitable habitat must be large enough to support an
appropriate number of individuals to avoid issues associated with small
population size, such as inbreeding depression and the Allee effect
(low population density reducing the probability of encountering mates
for spawning). Connectivity of stream reaches allows for immigration
and emigration between populations and increases the likelihood of
recolonization should a population be lost. At the species level, the
relict darter needs well-distributed healthy populations to withstand
environmental stochasticity (resiliency) and catastrophes (redundancy)
and to adapt to biological and physical changes in its environment
(representation). To evaluate the current and future viability of the
relict darter, we assessed a range of conditions to allow us to
estimate the species' resiliency, representation, and redundancy.
We delineated analytical units (populations) by dividing the relict
darter's range into two units (Bayou de Chien/Jackson Creek and Little
Bayou de Chien) based on known occurrence records, the substantial
distance (18.3 kilometers (km) (11.4 miles (mi)) separating known
occurrence records in both watersheds, and unsuitable habitat
[[Page 66288]]
conditions in downstream reaches of both watersheds.
To assess resiliency, we evaluated four components that relate to
the species' habitat or its population demography: physical habitat,
water quality, mean density, and occurrence complexity. We assessed
habitat using two components describing physical habitat quality and
water quality. The demographic condition was assessed using mean
density and occurrence complexity. We established parameters for each
condition category by evaluating the range of existing data and
separating those data into categories based on our understanding of the
species' demographics and habitat (see table 1, below). Individual
component scores were combined and averaged to produce an overall
condition score for each population.
Table 1--Component Conditions Used To Assess Resiliency for Relict Darter Populations
----------------------------------------------------------------------------------------------------------------
Condition
Component ----------------------------------------------------------------------------------
High Moderate Low 0
----------------------------------------------------------------------------------------------------------------
Physical Habitat............. Silt deposition low; Silt deposition Silt deposition Habitat
no extensive or moderate; habitat extensive; habitats unsuitable
significant habitat alterations at severely altered (species
alterations (e.g., moderate levels-- and recognized as absent).
recent channelization or impacting the
channelization, other habitat species; <25% of
riparian clearing); disturbance more habitats suitable
>75% of available widespread; 25-75% for the species.
habitat suitable of available
for the species. habitat suitable
for the species.
Water Quality................ Minimal or no known WQ issues recognized WQ issues prevalent Habitat
water quality (WQ) and may impact within system, unsuitable
issues (i.e., no species (i.e., 1 or likely impacting (species
303(d) streams 2 303(d) streams). populations (i.e., absent).
impacting the numerous 303(d)
species *). streams).
Mean Density (# darters/m\2\) >0.15............... 0.05-0.15........... <0.05............... Species absent.
Occurrence Complexity........ Occupies main Occupies main Occupies main Species absent.
channel and >=3 channel and maximum channel and maximum
tributaries. of 2 tributaries. of <=1 tributary.
----------------------------------------------------------------------------------------------------------------
* Signifies streams identified by the State of Kentucky on the list of impaired streams required by section
303(d) of the Clean Water Act (33 U.S.C. 1313(d)).
Our evaluation of representation for the relict darter was based on
the species' genetic diversity and the extent and variability of
environmental diversity (habitat diversity) across the species'
geographical range. Additionally, we assessed relict darter redundancy
(ability of the species to withstand catastrophic events) by evaluating
the number and distribution of populations with high resilience
throughout the species' range. Highly resilient populations, coupled
with a broad distribution throughout the historical range, have a
positive relationship to species-level redundancy.
Current Condition of the Relict Darter
The relict darter's historical range included the Bayou de Chien
stream system, a 554-km\2\ (214-mi\2\) watershed located within the
Mississippi Valley Loess Plains ecoregion (Woods et al. 2002, entire)
in Fulton, Graves, and Hickman Counties, Kentucky (Webb and Sisk 1975,
entire; Warren et al. 1994, entire; Piller and Burr 1998, entire).
Bayou de Chien is a low-gradient stream with a sand, gravel, and silt
bottom that begins in southwestern Graves County and flows westward
approximately 47 km (29.2 mi) through Hickman and Fulton Counties,
before ultimately emptying into Obion Creek near Hickman, Kentucky.
Historically, Bayou de Chien was presumably an undisturbed, free-
flowing stream with alternating areas of riffles, runs, and pools;
however, only a few of these reaches remain because much of the stream
has been channelized and converted to a deep ditch with uniform depth,
velocity, and substrate (Piller and Burr 1998, pp. 64-65).
The relict darter's current range is also limited to the Bayou de
Chien system in Fulton, Graves, and Hickman Counties, Kentucky. Recent
surveys (2010-2019) indicate that the species is now known by two
geographically separated populations: Bayou de Chien/Jackson Creek and
Little Bayou de Chien. Within the Bayou de Chien/Jackson Creek
population, the species occupies patches of suitable habitat within a
30.4-km (18.9-mi) reach of Bayou de Chien, a 3.6-km (2.3-mi) reach of
Jackson Creek, a 3.2-km (2.0-mi) reach of South Fork Bayou de Chien, a
10.4-km (6.5-mi) reach of Cane Creek, and a 2.3-km (1.4-mi) reach of
Sand Creek. Within the Little Bayou de Chien population, the species
occupies patches of suitable habitat within a 2.6-km (1.6-mi) reach. In
total, the species currently occupies 52.5 stream km (32.7 stream mi).
The Bayou de Chien/Jackson Creek population exhibits moderate
resiliency, as evidenced by recent estimates of mean density and mean
population size, recent monitoring data showing evidence of
reproduction and recruitment, and our observations of moderate to high
physical habitat and water quality conditions within the watershed (see
table 2, below; Service 2020, p. 35). Based on recent surveys, Jackson
Creek and Bayou de Chien have moderate to high relict darter densities,
with population estimates of 1,888 and 22,798 fish, respectively,
indicating that the population size has more than doubled since a
decade ago (Service 2019, p. 7; Service 2020, p. 36). Resiliency of the
Little Bayou de Chien population is lower due to its lower mean density
and less optimal habitat conditions (see table 2, below). The species
was only recently discovered in the Little Bayou de Chien in July 2017.
Recent survey efforts have been limited to two 100-m reaches and
several qualitative searches. Population size has not been estimated in
these reaches because of the limited quantitative effort; however, 23
relict darters were observed. Low levels of reproduction and
recruitment are assumed for the Little Bayou de Chien. Overall, the
rangewide mean population estimate is 24,686 relict darters (Service
2019, p. 7).
We consider redundancy and representation of the relict darter to
be low due to the species' small number of populations, its low
effective population size (mean of 221.5, with a 95 percent confidence
interval of 143.3-448.3), and its reduced genetic diversity (see table
2, below; Kattawar and Piller 2020, pp. 27-28). We recognize that
redundancy and representation may be inherently low for a narrow
endemic like the relict darter. The fact that the species exhibits
little genetic variation across its range and has a very low effective
population size suggests a past population bottleneck (e.g., rangewide
habitat disturbance) and subsequent genetic drift (loss of rare alleles
in a small population) (Kattawar and Piller 2020, entire).
[[Page 66289]]
Table 2--Resiliency, Redundancy, Representation Summary for Relict Darter
----------------------------------------------------------------------------------------------------------------
Population Resiliency Redundancy Representation
----------------------------------------------------------------------------------------------------------------
Bayou de Chien/Jackson Creek........ Moderate.................. Naturally Low--the Low--low genetic
Little Bayou de Chien............... Low....................... species is a narrowly diversity and low
distributed endemic; effective population
populations appear to size.
be separated, but
connectivity exists
within Bayou de
Chien, Jackson Creek,
and other large
tributaries.
----------------------------------------------------------------------------------------------------------------
As a narrow endemic species located in one watershed in
southwestern Kentucky, the relict darter has inherently low redundancy,
with only one known population at the time of listing and currently two
known populations. Representation is also limited based on its
restricted range, yet the species has survived a likely population
bottleneck. Despite low genetic diversity, genetic analyses indicate a
single panmictic population, indicating some recent genetic exchange
between populations. Low species redundancy and representation are
tempered by the moderate resiliency of the Bayou de Chien/Jackson Creek
population. This historical population continues to exhibit resiliency
today, with high relict darter abundance and evidence of continued
reproduction. This moderately resilient population has survived
threats, primarily because conservation efforts over the past three
decades have improved habitat within the system, thus enabling the
breeding, feeding, and sheltering needs of the relict darter to be met
and thus sustaining the population over time.
Future Conditions
In our SSA (Service 2020, entire), we defined viability as the
ability of the species to sustain populations in the wild over time. To
help address uncertainty associated with the degree and extent of
potential future stressors and their impacts on the species' needs, the
concepts of resiliency, redundancy, and representation were assessed
using three plausible future scenarios (continuation of current trend,
improving trend, and worsening trend), using the same analytical units
and components described above, in Summary of Biological Status and
Threats. We devised these scenarios by identifying data sources related
to the primary threats anticipated to affect the relict darter in the
future. For the habitat loss and degradation threat, we looked at land
cover change and urbanization, as well as conservation activity, and we
also included predicted impacts of future climate change. The three
scenarios capture the range of uncertainty in the changing landscape
and how relict darter will respond to the changing conditions (see
table 3, below). We used the best available data and models to project
out 50 years into the future (i.e., 2070), a timeframe where we were
reasonably certain the land use change, urbanization, and climate
models used could project patterns in the species' range relevant to
the relict darter and its habitat given the species' lifespan, as well
as the amount of time for the species to respond to the threats. For
each scenario, we provided a summary of resiliency for each population
at 10, 30, and 50 years in the future. For more information on the
models and their projections, please see the SSA report (Service 2020,
entire).
Table 3--Future Condition of the Relict Darter by the Years 2030, 2050, and 2070 Under Three Future Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
Predicted future condition
Scenario Population ------------------------------------------------------------------------------------------------------
10 Years 30 Years 50 Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................ Bayou de Chien/Jackson Moderate......................... Moderate........................ Moderate.
Little Bayou de Chien. Low.............................. Low............................. Low.
2........................ Bayou de Chien/Jackson Moderate......................... Moderate-High................... Moderate-High.
Little Bayou de Chien. Low.............................. Low-Moderate.................... Moderate.
3........................ Bayou de Chien/Jackson Moderate......................... Low-Moderate.................... Low.
Little Bayou de Chien. Low.............................. Potential Extirpation........... Potential Extirpation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Under Scenario 1 (continuation of current trend), small increases
in urbanization were predicted by 2050 and 2070 within the watersheds
of both extant populations (Service 2020, pp. 41-43), but associated
negative effects on habitat and population elements were expected to be
minimal. We also predicted continued implementation of conservation
actions under KDFWR's conservation strategy and through the Service's
PFW program. Using a moderate level of climate change (RCP 4.5), within
the next 10 years, portions of the Bayou de Chien system were impacted
by either drought or floods, with slightly warmer temperatures. Over
the long term (30-50 years), drought affected all populations but at
intervals and severity levels similar to what has occurred over the
last 10 years.
Considering all of these factors, we expect no change in resiliency
for the two known populations; however, the low resiliency of the
Little Bayou de Chien population makes it much more vulnerable to
extirpation from the effects of stochastic disturbance. Under Scenario
1, both representation and redundancy of the relict darter are expected
to remain at low levels. The species is limited to one low resiliency
population and one moderate resiliency population, both of which occupy
streams within a single ecoregion, Mississippi Valley Loess Plains.
Within this ecoregion, relict darters occupy second- to fourth-order
reaches, but habitat diversity within these reaches tends to be low.
The species also has low genetic diversity, which cannot be increased
through augmentations, reintroductions, or other genetics-based
conservation actions because genetic diversity cannot be created for a
species that has a limited gene pool. The species' low genetic
diversity could potentially limit its ability to adapt to changing
environmental conditions over time. Furthermore, both populations will
remain vulnerable to catastrophic events, such as an extreme drought or
chemical spill, because the species' distribution is generally limited
to a
[[Page 66290]]
single, continuous stream reach within each population.
Under Scenario 2 (improving trend), we projected a number of
improved conditions and positive outcomes that led to overall improved
resiliency and redundancy for the relict darter. We projected both land
use change and urbanization to be lower than current rates. The current
trend in climate improved, with lower annual increases in temperature
and less severe droughts or floods in the short term (RCP 4.5). Over
the long term (30-50 years), drought affected both populations but at
intervals and severity levels lower than what occurred over the last 10
years. Conservation efforts, including new efforts along occupied
reaches of Little Bayou de Chien, increased through State wildlife
action plans, and other Service partnerships with Federal, State, and
nongovernmental partners. These actions contributed to improved water
quality conditions, increases in forest and riparian cover, and
reductions in point source and nonpoint-source pollutants in all
historical tributary systems.
Based on these habitat and water quality improvements, we expect
both extant populations to increase in size, with continued
reproduction and recruitment. We also expect these populations to
expand into unoccupied historical tributaries, eventually resulting in
improved occurrence complexity in both watersheds. All of these actions
and conditions will result in increased resiliency for the Bayou de
Chien/Jackson and Little Bayou de Chien populations over the next 30-50
years. Under Scenario 2, representation of the relict darter is
expected to remain at a low level. The species' expansion within the
Bayou de Chien and Little Bayou de Chien watersheds will bolster the
species' resiliency and redundancy, but the species' low genetic
diversity cannot be increased. Under Scenario 2, redundancy of the
relict darter will increase due to the species' expansion and improved
resiliency within the Bayou de Chien and Little Bayou de Chien
watersheds and due to the species' recolonization of historical
tributaries such as South Fork Bayou de Chien. This increased
redundancy will decrease the likelihood that a catastrophic event, such
as an extreme drought or pollution event, would lead to the species'
extinction. Under Scenario 2, we expect the relict darter to exhibit
low-moderate redundancy.
Under Scenario 3 (worsening trend), we projected rates of land use
change and urbanization to be higher than current rates. Under this
scenario, the current trend in climate worsened (high RCP of 8.5), and
within the next 10 years, populations were impacted by either drought
or floods, with warmer stream temperatures and lower rainfall. Over the
long term (30-50 years), drought affected both populations at intervals
and severity levels higher than what has occurred over the last 10
years. Some conservation actions continued in the Bayou de Chien
system, but there was a net decrease in these activities due to reduced
agency funding. All of these actions and conditions resulted in
declining habitat and water quality conditions that will negatively
affect resiliency estimates for both extant populations.
For this scenario, we project low resiliency for the Bayou de
Chien/Jackson population and potential extirpation of the Little Bayou
de Chien population by 2070. Under Scenario 3, representation of the
relict darter is expected to remain at a low level. Reduced resiliency
of the Bayou de Chien/Jackson Creek population and extirpation of the
Little Bayou de Chien population will increase the species'
vulnerability to stochastic disturbance and will likely reduce the
species' ability to adapt to changing environmental conditions. Under
Scenario 3, redundancy of the relict darter is expected to remain at a
low level; however, extirpation of the Little Bayou de Chien population
reduces the species' range, leaving it with a single population (Bayou
de Chien/Jackson Creek) that is more vulnerable to a catastrophic event
such as an extreme drought or chemical spill. The species' redundancy
is also weakened by lower resiliency of the Bayou de Chien/Jackson
Creek population, which will be faced with declining physical habitat
and water quality conditions.
Determination of Relict Darter's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an endangered species as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a threatened species as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of endangered
species or threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we conclude that the risk factors acting on the relict darter
and its habitat, either singly or in combination, are not of sufficient
imminence, intensity, or magnitude to indicate that the species is in
danger of extinction (an endangered species) throughout all of its
range. As described above in Current Condition of the Relict Darter,
the relict darter is naturally a narrow endemic species. Its low
species redundancy and representation are tempered by the moderate
resiliency of the Bayou de Chien/Jackson Creek population, which has
high relict darter abundance and evidence of continued reproduction.
Population size has increased and recruitment trends have improved
based on surveys completed during the past decade. Further, this
moderate resiliency population has survived threats, primarily because
conservation efforts over the past three decades have improved and
protected habitat within the system, enabling the breeding, feeding,
and sheltering needs of the relict darter to be met and thus sustaining
the population over time. The Service continues to work with partners
on these projects. Additionally, a second population in the Little
Bayou de Chien was discovered in 2017. While this newly discovered
population has low resiliency, the addition of a second population adds
to the species' redundancy.
Our analysis of the relict darter's current condition shows that
while the species has maintained resiliency since it was listed (see 58
FR 68480; December 27, 1993), it is now represented by only two
populations in one watershed, and thus redundancy is still inherently
low. The species also has low representation based on its reduced
genetic diversity and low effective population size (Factor E), likely
a result of a population bottleneck caused by extensive channelization
and habitat disturbance throughout the Bayou de Chien system in the
early 20th century. Habitat loss and degradation through stream channel
disturbance, removal of riparian vegetation, and pollution continue to
affect the species (Factor A), even though conservation actions over
the past three decades have led to improved habitat conditions in
[[Page 66291]]
portions of the Bayou de Chien mainstem and Jackson Creek, contributing
to moderate resiliency for the larger population. The current
resiliency of the Jackson Creek/Bayou de Chien population, with a
population size that has doubled in the past decade to nearly 25,000
relict darters showing evidence of reproduction and successful
recruitment, along with the added redundancy of the newly discovered
Little Bayou de Chien population and the reduced habitat threats,
indicate that the species is not currently in danger of extinction.
Therefore, after assessing the best available information, we conclude
that the relict darter no longer meets the Act's definition of an
endangered species.
The relict darter has benefited from protection as an endangered
species under the Act, and from improvements in water quality and
habitat conditions stemming from both national and Kentucky statutes
and regulations; however, these regulations have not prevented the
degradation of some habitats used by the species (Factor D). The
primary threats that are currently acting on the species are expected
to continue into the future, climate change (Factor E) is expected to
exacerbate existing threats, and the species' low redundancy and low
representation put the species at risk of extinction within the
foreseeable future throughout all of its range. Fifty years was
considered ``foreseeable'' in this case because we can reasonably
determine within this 50-year timeframe that both the threats as
presented in the models of predicted urbanization, land use, and
climate change and the species' responses to those threats are likely.
The range of plausible future scenarios of relict darter habitat
conditions and water quality factors suggest slightly variable
resilience into the future. Under the continuation of current trend
scenario (Scenario 1), resiliency remains low or moderate in the two
populations, with redundancy and representation remaining low. Under
the improving trend scenario (Scenario 2), resiliency improves for both
populations, with habitat conditions predicted to improve because of an
increased percentage of forested land with reduced percentages of both
agricultural land and urbanization, along with reduced climate change
rates. Representation remains low under this scenario, but redundancy
improves because of reintroduction of the species into historical
habitats or natural expansion within the system. There is greater
uncertainty regarding the species' future status, primarily due to
conservation action implementation with this scenario than in the other
two future scenarios. Under the worsening trend scenario (Scenario 3),
resiliency is low in the one remaining population, and one population
is likely extirpated resulting in reduced redundancy and low
representation. This expected reduction in both the number and
distribution of resilient populations is likely to increase the
species' vulnerability to both stochastic and catastrophic
disturbances. Compared to the other two scenarios, the conditions from
Scenario 3 were considered more likely to contribute to the future
condition of the species, primarily because of expected continued
sedimentation and water quality degradation combined with the expected
synergistic effects of climate change in the future.
In summary, while the relict darter's viability has improved over
time (see Conservation Efforts, above), three major factors that are
influencing the viability of the species are expected to affect it into
the future: habitat loss and degradation, restricted range/isolation,
and climate change. Habitat loss and degradation resulting from
siltation, channelization/riparian vegetation removal, drainage of
riparian wetlands, and water quality degradation (pollution) pose the
largest risk to the current and future viability of the relict darter.
With the plausibility of future land use changes that could impact
instream habitat and water quality, the projected worsening climate
conditions, and given the inherently low redundancy that increases
vulnerability to catastrophic events, the relict darter is at risk of
extinction within the next 50 years. Thus, after assessing the best
available information, we conclude that the relict darter is not
currently in danger of extinction, but it is likely to become in danger
of extinction within the foreseeable future throughout all of its
range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for relict darter, we choose
to address the significance question first. First, we assessed the two
portions of the range (Bayou de Chien/Jackson Creek and Little Bayou de
Chien). In the absence of a legal definition of significance in the
Act, we determined significance on a case-by-case basis for the relict
darter using a reasonable interpretation of significance and providing
a rational basis for our determination. In doing so, we considered what
is currently observed about the contributions made by each geographic
portion in terms of biological factors, focusing on the importance of
each in supporting the continued viability of the species. We evaluated
whether these areas occupy relatively large or particularly high-
quality or unique habitat. As a narrow ranging endemic, both relict
darter populations occur within one 554-km\2\ (214-mi\2\) watershed in
three counties in southwestern Kentucky (Service 2020, p. 17), and
Little Bayou de Chien is a tributary to Bayou de Chien. We determined
that the Bayou de Chien/Jackson Creek portion is significant, as it is
large geographically relative to the entire range of the species, it
contains high-quality/high-value habitat for the species, and it
contains habitat essential to the relict darter's life history;
therefore, it is important for the overall conservation of the species.
We determined that the Little Bayou de Chien portion is not
significant, as it constitutes a very small portion (i.e., less than 5
percent) of the range and
[[Page 66292]]
does not represent unique or high-quality habitat for the relict
darter.
Since we determined that Bayou de Chien/Jackson Creek is a
significant portion, we next evaluate whether the relict darter is in
danger of extinction (i.e., endangered) in that portion. The Bayou de
Chien/Jackson Creek population has high relict darter abundance and
evidence of continued reproduction. Population size has increased and
recruitment trends have improved based on surveys completed during the
past decade. Further, this moderate resiliency population has survived
threats, primarily because conservation efforts over the past three
decades have improved and protected habitat within the system, enabling
the breeding, feeding, and sheltering needs of the relict darter to be
met and thus sustaining the population over time. Thus, the Bayou de
Chien/Jackson Creek portion is not in danger of extinction and does not
have a different status than the entire range. Based on this, there are
no portions of the species' range that provide a basis for determining
that the species is in danger of extinction in a significant portion of
its range, and we determine that the species is likely to become in
danger of extinction within the foreseeable future throughout all of
its range. This is consistent with the courts' holdings in Desert
Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL
4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity
v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Determination of Status
Our review of the best scientific and commercial data available
indicates that the relict darter meets the Act's definition of a
threatened species. Therefore, we reclassify the relict darter as a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. The Act encourages cooperation with the States and requires
that recovery actions be implemented for all listed species. The
protections required by Federal agencies and the prohibitions against
certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystem.
Revisions of the plan may be done to address continuing or new
threats to the species, as new substantive information becomes
available. The recovery plan identifies site-specific management
actions that set a trigger for review of the five factors that control
whether a species may be downlisted or delisted, and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. All planning documents can
be found on our website (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Kentucky Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research,
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands (such as TNC preserves and county-owned nature
preserves). To achieve recovery of these species requires cooperative
conservation efforts on private, State, and Tribal lands where
appropriate. Funding for recovery actions could become available from a
variety of sources, including Federal budgets, State programs, and cost
share grants from non-Federal landowners, the academic community, and
nongovernmental organizations. We invite you to submit any new
information on this species whenever it becomes available (see FOR
FURTHER INFORMATION CONTACT).
Section 7(a) requires Federal agencies to evaluate their actions
with respect to any species that is listed as an endangered or
threatened species. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(2) of the Act requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species. If a Federal action
may affect a listed species, the responsible Federal agency must enter
into consultation with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include management
and any other landscape-altering activities on Federal lands
administered by the U.S. Forest Service; issuance of section 404 Clean
Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; and construction and maintenance of roads or highways by the
Federal Highway Administration.
II. Final Rule Issued Under Section 4(d) of the Act
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the listed species.
The Act allows the Secretary to promulgate protective regulations for
threatened species pursuant to section 4(d) of the Act. Because we are
reclassifying this species as a threatened species, the prohibitions in
section 9 do not apply directly. We are, therefore, adopting a set of
regulations to provide for the conservation of the species in
accordance with section 4(d), which also authorizes us to apply any of
the prohibitions in section 9 to a threatened species. The discussion
below regarding protective regulations under section 4(d) of the Act
complies with our policy.
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v.
[[Page 66293]]
Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in the Act to
mean the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a rule that is designed to address the relict darter's
specific threats and conservation needs. Although the statute does not
require us to make a ``necessary and advisable'' finding with respect
to the adoption of specific prohibitions under section 9, we find that
this rule as a whole satisfies the requirement in section 4(d) of the
Act to issue regulations deemed necessary and advisable to provide for
the conservation of the relict darter. As discussed above under Summary
of Biological Status and Threats, we have concluded that the relict
darter is likely to become in danger of extinction within the
foreseeable future primarily due to habitat degradation and loss
stemming from siltation, channelization and riparian vegetation
removal, riparian wetland drainage, and water quality degradation.
These threats contribute to the negative effects associated with the
species' restricted range and effects of climate change. The provisions
of this 4(d) rule will promote conservation of the relict darter by
providing continued protection from take and encouraging management of
the landscape in ways that meet both watershed and riparian management
considerations and the conservation needs of the relict darter. The
provisions of this rule are one of many tools that we will use to
promote the conservation of the relict darter.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the 4(d) Rule
The provisions of this 4(d) rule will promote conservation of the
relict darter by adopting the same prohibitions that apply to an
endangered species under section 9 of the Act and 50 CFR 17.21. Except
as otherwise authorized or permitted, this 4(d) rule continues to
prohibit importing or exporting; take; possession and other acts with
unlawfully taken specimens; delivering, receiving, carrying,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; and selling or offering for sale in
interstate or foreign commerce. The prohibitions apply throughout the
species' range.
Identical to the regulations that apply under endangered status,
the prohibitions in this 4(d) rule prohibit all forms of take within
the United States. Under the Act, ``take'' means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct. Some of these provisions have
been further defined in regulations at 50 CFR 17.3. Take can result
knowingly or otherwise, by direct and indirect impacts, intentionally
or incidentally. Regulating intentional and incidental take will help
preserve the species' remaining populations, enable beneficial
management actions to occur, and decrease synergistic, negative effects
from other stressors.
This 4(d) rule prohibits intentional take, including capturing and
handling, because these activities require training and experience.
Such activities include, but are not limited to, monitoring and
research involving capturing and handling relict darters. While these
activities are important to relict darter recovery, there are proper
techniques for capturing and handling fish that require training and
experience. Improper capture or handling can cause injury or even
result in death of relict darters. Therefore, to ensure that these
activities continue to be conducted correctly by properly trained
personnel, the 4(d) rule prohibits intentional take; however, these
activities could be covered under a permit issued under section
10(a)(1)(A) of the Act.
Threats to the species are noted above and described in detail
under Summary of Biological Status and Threats. The most significant
threat expected to affect the species in the foreseeable future is
habitat loss and degradation from siltation, channelization and
riparian vegetation removal, drainage of riparian wetlands, and water
quality degradation. Some activities have the potential to affect the
relict darter,
[[Page 66294]]
including agriculture and land development. These activities may result
in incidental take through increases in siltation, diminishing water
quality, altering stream flow, and reducing fish passage. Therefore,
this 4(d) rule prohibits take to help preserve the relict darter's
remaining populations, slow the rate of population decline, preserve
and potentially provide for expansion of the population, and decrease
synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
Exceptions
The 4(d) rule also provides for the conservation of the species by
incorporating several exceptions to allow for routine enforcement
activities, allow for assisting sick or injured fish, and encourage the
active habitat management this species uniquely requires. The statute
also contains certain statutory exceptions from the prohibitions, which
are found in sections 9 and 10 of the Act, and other regulatory
exceptions from the prohibitions, which are found in our regulations at
50 CFR part 17, subparts C and D. Below, we describe these exceptions
to the prohibitions for the relict darter.
To start, this rule outlines several regulatory exceptions to the
prohibitions for the relict darter. First, the rule excepts take
associated with activities that are authorized by permits under Sec.
17.32. This means that if a manager has received or receives a permit
for a particular activity (e.g., a section 10(a)(1)(A) permit for
monitoring relict darters), any take that occurs as a result of
activities covered by this permit remains excepted from the
prohibitions on take under the issued permit; in other words, the
manager would not be liable for any take for which the manager already
has a permit.
Second, the final rule incorporates certain regulatory exceptions
that allow take by any person in defense of his own life or the lives
of others; take by representatives of the Service or of a State
conservation agency to aid a sick specimen or to dispose of, salvage,
or remove a dead specimen that is reported to the Office of Law
Enforcement; and take by Federal and State law enforcement officers
performing their official duties to possess, deliver, carry, transport,
or ship any relict darters taken in violation of the Act, as necessary.
Next, the final 4(d) rule allows employees of State conservation
agencies operating under a cooperative agreement with the Service in
accordance with section 6(c) of the Act to take relict darters in order
to carry out conservation programs for the species. We recognize the
special and unique relationship with our State natural resource agency
partners in contributing to conservation of listed species. State
agencies often possess scientific data and valuable expertise on the
status and distribution of endangered, threatened, and candidate
species of wildlife and plants. State agencies, because of their
authorities and their close working relationships with local
governments and landowners, are in a unique position to assist us in
implementing all aspects of the Act. In this regard, section 6 of the
Act provides that we shall cooperate to the maximum extent practicable
with the States in carrying out programs authorized by the Act.
Therefore, any qualified employee or agent of a State conservation
agency that is a party to a cooperative agreement with us in accordance
with section 6(c) of the Act, who is designated by his or her agency
for such purposes, will be able to conduct activities designed to
conserve the relict darter that may result in otherwise prohibited take
without additional authorization.
Finally, the 4(d) rule provides species-specific exceptions to the
standard take prohibitions; these species-specific exceptions
facilitate continued and increased implementation of beneficial
management practices that provide for conservation of the species.
Within each occupied stream, restoration actions will promote expansion
of the relict darter's range and reduce the fragmentation and isolation
of populations. These actions can reduce stressors that impact the
relict darter, including runoff of siltation and pollution, and may
(through riparian reforestation) mediate local water temperatures
expected to increase with climate change. Incidental take associated
with habitat restoration actions excepted by the 4(d) rule may result
in some minimal level of harm or temporary disturbance to the relict
darter. For example, a culvert replacement project would likely elevate
suspended sediments for several hours, and the darters would need to
move out of the sediment plume to resume normal feeding behavior.
Because 4(d) rule exceptions do not apply during the relict darter's 4-
month spawning period, a critical phase of the species' life history,
the potential for incidental take is further minimized.
Overall, these activities benefit the species by expanding suitable
habitat and reducing within-population fragmentation, contributing to
conservation and recovery. Consistent with all of the exceptions and
based on the best available information, our 4(d) rule excepts
incidental take associated with the following activities, if carried
out in accordance with existing regulations and permit requirements,
and conducted outside the March through June spawning season:
<bullet> Channel restoration or improvement projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers and, if the projects involve known relict darter spawning
habitat, take place between June 30 and March 1. These projects can be
accomplished using a variety of methods, but the desired outcome is a
natural channel with low shear stress (force of water moving against
the channel); bank heights that enable reconnection to the floodplain;
a reconnection of surface and groundwater systems, resulting in
perennial flows in the channel; riffles and pools composed of existing
soil, rock, and wood instead of large imported materials; low
compaction of soils within adjacent riparian areas; and inclusion of
riparian wetlands.
<bullet> Streambank stabilization projects that use bioengineering
methods to replace preexisting, bare, eroding stream banks with
vegetated, stable stream banks, thereby reducing bank erosion and
instream sedimentation and improving habitat conditions for the species
and, if the projects involve known relict darter spawning habitat, that
take place between June 30 and March 1. Stream banks may be stabilized
using native live stakes (live, vegetative cuttings inserted or tamped
into the ground in a manner that allows the stake to take root and
grow), native live fascines (live branch cuttings, usually willows,
bound together into long, cigar-shaped bundles), or brush layering
(cuttings or branches of easily rooted tree species layered between
[[Page 66295]]
successive lifts of soil fill). Stream banks must not be stabilized
through the use of quarried rock (rip-rap) or the use of rock baskets
or gabion structures.
Bridge and culvert replacement/removal projects or low head dam
removal projects that remove migration barriers or generally allow for
improved upstream and downstream movements of relict darters while
maintaining normal stream flows, preventing bed and bank erosion, and
improving habitat conditions for the species and improving habitat
conditions for the species, if completed between June 30 and March 1.
Transportation projects that follow best management practices that
eliminate sedimentation, do not block stream flow, do not channelize
streams, and provide for fish passage under a wide range of hydrologic
conditions at stream crossings and that are done between June 30 and
March 1.
Projects carried out in the species' range by the U.S. Department
of Agriculture's Natural Resources Conservation Service that do not
alter habitats known to be used by the relict darter beyond the fish's
tolerances and are performed between June 30 and March 1 to avoid the
time period when the relict darter will be found within its spawning
habitat, if such habitat is affected by the activity.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of the relict darter.
However, interagency cooperation may be further streamlined through
planned programmatic consultations for the species between Federal
agencies and the Service, where appropriate.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). We also determine that 4(d) rules that accompany regulations
adopted pursuant to section 4(a) of the Act are not subject to NEPA.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. There are no known Tribes or Tribal
lands within the range of the relict darter.
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>.
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Kentucky
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
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, relict'' under
Fishes to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Darter, relict.................. Etheostoma Wherever found.... T 58 FR 68480, 12/27/
chienense. 1993; 88 FR [Insert
Federal Register page
where the document
begins], 9/27/2023; 50
CFR 17.44(hh).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraphs (gg) and (hh) to read as
follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(gg) [Reserved]
(hh) Relict darter (Etheostoma chienense).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to relict darter. Except as provided
under paragraph (hh)(2) of this section and Sec. Sec. 17.4 and 17.5,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to
[[Page 66296]]
be committed, any of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take as set forth at Sec. 17.31(b).
(iv) Take incidental to an otherwise lawful activity caused by:
(A) Channel restoration or improvement projects that create
natural, physically stable, ecologically functioning streams (or stream
and wetland systems) that are reconnected with their groundwater
aquifers and, if the projects involve known relict darter spawning
habitat, that take place between June 30 and March 1. These projects
can be accomplished using a variety of methods, but the desired outcome
is a natural channel with low shear stress (force of water moving
against the channel); bank heights that enable reconnection to the
floodplain; a reconnection of surface and groundwater systems,
resulting in perennial flows in the channel; riffles and pools composed
of existing soil, rock, and wood instead of large imported materials;
low compaction of soils within adjacent riparian areas; and inclusion
of riparian wetlands.
(B) Streambank stabilization projects that use bioengineering
methods to replace preexisting, bare, eroding stream banks with
vegetated, stable stream banks, thereby reducing bank erosion and
instream sedimentation and improving habitat conditions for the species
and, if the projects involve known relict darter spawning habitat, that
take place between June 30 and March 1. Stream banks may be stabilized
using native live stakes (live, vegetative cuttings inserted or tamped
into the ground in a manner that allows the stake to take root and
grow), native live fascines (live branch cuttings, usually willows,
bound together into long, cigar-shaped bundles), or brush layering
(cuttings or branches of easily rooted tree species layered between
successive lifts of soil fill). Stream banks must not be stabilized
through the use of quarried rock (rip-rap) or the use of rock baskets
or gabion structures.
(C) Bridge and culvert replacement/removal projects or low head dam
removal projects that remove migration barriers or generally allow for
improved upstream and downstream movements of relict darters while
maintaining normal stream flows, preventing bed and bank erosion, and
improving habitat conditions for the species, if completed between June
30 and March 1.
(D) Transportation projects that follow best management practices
that eliminate sedimentation, do not block stream flow, do not
channelize streams, and provide for fish passage under a wide range of
hydrologic conditions at stream crossings and that are done between
June 30 and March 1.
(E) Projects carried out in the species' range by the Natural
Resources Conservation Service, U.S. Department of Agriculture, that:
(1) Do not alter habitats known to be used by the relict darter
beyond the fish's tolerances; and
(2) Are performed between June 30 and March 1 to avoid the time
period when the relict darter will be found within its spawning
habitat, if such habitat is affected by the activity.
(v) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-20945 Filed 9-26-23; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on September 27, 2023.
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