Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75913 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

Privacy Act 

Anyone is able to search the 

electronic form of all our comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://www.regulations.gov. 

List of Subjects in 49 CFR Part 225 

Investigations, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

The Rule 

■ In consideration of the foregoing, FRA 

amends part 225 of chapter II, subtitle 

B of title 49, Code of Federal 

Regulations, as follows: 

PART 225—[AMENDED] 

■ 1. The authority citation for part 225 

continues to read as follows: 

Authority: 49 U.S.C. 103, 322(a), 20103, 

20107, 20901–02, 21301, 21302, 21311; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

■ 2. Amend § 225.19 by revising the first 

sentence of paragraph (c) and revising 

paragraph (e) to read as follows: 

§ 225.19 Primary groups of accidents/ 

incidents. 

* * * * * 

(c) Group II—Rail equipment. Rail 

equipment accidents/incidents are 

collisions, derailments, fires, 

explosions, acts of God, and other 

events involving the operation of ontrack equipment (standing or moving) 

that result in damages higher than the 

current reporting threshold (i.e., $6,700 

for calendar years 2002 through 2005, 

$7,700 for calendar year 2006, $8,200 

for calendar year 2007, $8,500 for 

calendar year 2008, $8,900 for calendar 

year 2009, $9,200 for calendar year 2010 

and $9,400 for calendar year 2011) to 

railroad on-track equipment, signals, 

tracks, track structures, or roadbed, 

including labor costs and the costs for 

acquiring new equipment and 

material. * * * 

* * * * * 

(e) The reporting threshold is $6,700 

for calendar years 2002 through 2005, 

$7,700 for calendar year 2006, $8,200 

for calendar year 2007, $8,500 for 

calendar year 2008, $8,900 for calendar 

year 2009, $9,200 for calendar year 2010 

and $9,400 for calendar year 2011. The 

procedure for determining the reporting 

threshold for calendar years 2006 and 

beyond appears as paragraphs 1–8 of 

appendix B to part 225. 

* * * * * 

Issued in Washington, DC, on December 2, 

2010. 

Karen J. Hedlund, 

Chief Counsel. 

[FR Doc. 2010–30824 Filed 12–6–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2009–0079; MO 

92210–1117–0000–B4] 

RIN 1018–AW52 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Vermilion Darter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the vermilion darter 

(Etheostoma chermocki) under the 

Endangered Species Act of 1973, as 

amended (Act). We designate as critical 

habitat approximately 21.0 kilometers 

(km) (13.0 miles (mi)) of stream in 5 

units within the Turkey Creek 

watershed in Jefferson County, AL. 

DATES: This rule becomes effective on 

January 6, 2011. 

ADDRESSES: This final rule, the final 

economic analysis, comments and 

materials received, as well as supporting 

documentation we used in preparing 

this final rule, are available for viewing 

on the Internet at http://regulations.gov 

at Docket No. FWS–R4–ES–2009–0079 

and, by appointment, during normal 

business hours, at the U.S. Fish and 

Wildlife Service, Mississippi Fish and 

Wildlife Office, 6578 Dogwood View 

Parkway, Jackson, MS 39213; telephone 

601–321–1122; facsimile 601–965–4340. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ricks, Field Supervisor, U.S. 

Fish and Wildlife Service, Mississippi 

Fish and Wildlife Office (see ADDRESSES

above). If you use a telecommunications 

device for the deaf (TDD), call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for the 

vermilion darter under the Act (16 

U.S.C. 1531 et seq.), in this final rule. 

For more information on the biology 

and ecology of the vermilion darter, 

refer to the final listing rule published 

in the Federal Register on November 28, 

2001 (66 FR 59367) and the Vermilion 

Darter Recovery Plan, available on the 

Internet at http://ecos.fws.gov/docs/ 

recovery_plan/070802.pdf. For 

information on vermilion darter critical 

habitat, refer to the proposed rule to 

designate critical habitat for the 

vermilion darter published in the 

Federal Register on December 3, 2009 

(74 FR 63366). Information on the 

associated draft economic analysis for 

the proposed rule to designate revised 

critical habitat was published in the 

Federal Register on June 29, 2010 (75 

FR 37350). See also the discussion of 

habitat in the Physical and Biological 

Features section below. 

Description and Taxonomy 

The vermilion darter (Etheostoma 

chermocki (Teleostei: Percidae)) was 

officially described in 1992 from Turkey 

Creek, a tributary of the Locust Fork, 

which is within the Black Warrior River 

drainage of Jefferson County, Alabama. 

The vermilion darter belongs to the 

subgenus Ulocentra (snubnose darters), 

which includes fish that are slightly 

laterally compressed, have complete 

lateral lines, broadly connected gill 

membranes, a short head, and a small 

pronounced mouth. The vermilion 

darter is a medium-sized darter, 

reaching about 7.1 centimeters (2.8 

inches) total length (length from tip of 

snout to longest portion of tail fin). 

Distribution and Habitat 

The vermilion darter is a narrowly 

endemic fish species, occurring in 

sparse, fragmented, and isolated 

populations. The species is only known 

in parts of the upper mainstem reach of 

Turkey Creek and four tributaries in 

Pinson, Jefferson County, Alabama 

(Boschung and Mayden 2004, p. 520). 

Suitable streams have pools of moderate 

current alternating with riffles of 

moderately swift current, and low water 

turbidity. 

The vermilion darter was listed as 

endangered (66 FR 59367, November 28, 

2001) because of ongoing threats to the 

species and its habitat from 

urbanization within the Turkey Creek 

watershed. The primary threats to the 

species and its habitat are degradation 

of water quality and substrate 


srobinson on DSKHWCL6B1PROD with RULES
75914 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

components due to sedimentation and 

other pollutants, and altered flow 

regimes from activities such as 

construction and maintenance activities; 

impoundments (five within the Turkey 

Creek and Dry Creek system); instream 

gravel extractions; off-road vehicle 

usage; road, culvert, pipe, bridge, gas, 

sewer and water easement construction; 

and inadequate stormwater management 

(Drennen pers. obs. 2007–2009; Blanco 

and Mayden 1999, pp. 18–20). These 

activities lead to water quality 

degradation; the production of 

pollutants (sediments, nutrients from 

sewage, pesticides, fertilizers, and 

industrial and stormwater effluents); 

stream channel instability; 

fragmentation; reduced connectivity of 

the habitat from alteration of stream 

banks and bottoms; degradation of 

riffles, runs, and pools; and changes in 

water quantity and flow necessary for 

spawning, feeding, resting, and other 

life-history processes of the species. 

Previous Federal Actions 

The vermilion darter (Etheostoma 

chermocki) was listed as endangered 

under the Act on November 28, 2001 (66 

FR 59367). At the time of listing, we 

found that designation of critical habitat 

was prudent. However, due to budgetary 

constraints, we did not designate critical 

habitat at that time. We approved a final 

recovery plan for the vermilion darter 

on June 20, 2007 (Service 2007), and 

announced its availability to the public 

through a notice published in the 

Federal Register on August 2, 2007 (72 

FR 42426). 

On November 27, 2007, the Center for 

Biological Diversity filed a lawsuit 

against the Secretary of the Interior for 

our failure to timely designate critical 

habitat for the vermilion darter (Center 

for Biological Diversity v. Kempthorne 

(07–CV–2928)). In a court-approved 

settlement agreement, the Service 

agreed to submit to the Federal Register 

a new prudency determination, and if 

the designation was found to be 

prudent, a proposed designation of 

critical habitat, by November 30, 2009, 

and a final designation by November 30, 

2010. We published a proposed critical 

habitat designation for the vermilion 

darter on December 3, 2009 (74 FR 

63366), and accepted public comments 

for 60 days. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the vermilion 

darter (74 FR 63366) during the 

December 3, 2009, to February 1, 2010, 

comment period. We contacted 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties, and invited 

them to comment on the proposed rule. 

We issued a press release and published 

a legal notice in the Birmingham News. 

On June 29, 2010, we published a notice 

reopening the comment period until 

July 29, 2010, as well as announcing the 

availability of a draft economic analysis 

and amended required determinations 

(75 FR 37350). We directly notified, and 

requested comments from the State of 

Alabama. During the open comment 

periods we received a total seven 

comments letters: five from 

organizations and individuals and two 

from peer reviewers, one of whom also 

represented the State of Alabama. All 

comments supported designation of 

critical habitat for the vermilion darter. 

We reviewed all comments for 

substantive issues and new data 

regarding vermilion darter critical 

habitat and the economic analysis. 

Written comments are addressed in the 

following summary. For readers’ 

convenience, we have combined similar 

comments into single comments and 

responses. 

Peer Review 

In accordance with our policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we solicited 

expert opinions from three 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. The purpose of such review 

is to ensure that the designation is based 

on scientifically sound data, 

assumptions, and analysis, including 

input of appropriate experts and 

specialists. We received written 

responses from two of the three peer 

reviewers whom we contacted. The peer 

reviewers generally agreed that the rule 

incorporated the best scientific 

information available, accurately 

described the species and its habitat 

requirements (primary constituent 

elements), accurately characterized the 

reasons for the species’ decline and the 

threats to its habitat. Both peer 

reviewers concurred with our critical 

habitat selection criteria and use of the 

Vermilion Darter Recovery Plan 

(USFWS 2007) as a foundation for the 

proposed designation. Both peer 

reviewers provided additional 

information, clarifications, and 

suggestions to improve the final critical 

habitat rule. These editorial revisions 

and clarifications have been 

incorporated into the final rule, as 

appropriate. One peer reviewer 

recommended an additional area for 

critical habitat designation. 

Peer Reviewer Comments 

Comment 1: The six-lane Northern 

Beltline Corridor and the right-of-way 

segment for the Northern Beltline 

Corridor between Alabama Highway 79 

and Alabama Highway 75 north of 

Pinson will have direct and indirect 

impacts on the critical habitat of the 

vermilion darter and the general water 

quality of the Turkey Creek watershed. 

Our Response: The Northern Beltline 

crosses the northern portions of Dry 

Creek. Only 0.6 km (0.4 mi) of Dry Creek 

below Innsbrook Lake is designated as 

critical habitat and this is not within the 

immediate area of the Northern Beltline. 

We reviewed and evaluated the 

Northern Beltline Corridor in 

accordance with the Fish and Wildlife 

Coordination Act (48 Stat. 401, as 

amended; 16 U.S.C. 661 et seq.) and the 

Endangered Species Act. We found that 

the project would not adversely affect 

the vermilion darter or any federally 

listed species. We will reinitiate 

consultation if new information 

indicates that the Northern Beltline is a 

threat to the species or its designated 

critical habitat, or if the project is 

modified in a manner or extent not 

previously considered. 

Comment 2: Stormwater management 

is a much larger issue to critical habitat 

than what is presented in the rule. 

There is no maximum instream flow 

limit in reference to the impacts of 

stormwater on critical habitat. 

Our Response: Stormwater 

management and its implications to 

water quality are addressed within the 

threats section of this rule. In regard to 

water quantity and stormwater 

management, an instream flow regime 

with a minimum average daily 

discharge over 50 cubic feet per second 

(compiled from U.S. Geological Survey 

flow data) is critical to the vitality of the 

critical habitat and is discussed in this 

rule. However, at this time, we do not 

have sufficient scientific information to 

determine a maximum stormwater 

management flow for the designated 

critical habitat. Average discharges of 

greater than 100 cubic feet per second, 

inclusive of both surface runoff and 

groundwater sources (springs and 

seepages), occur sporadically 

throughout the hydrologic cycle of the 

critical habitat and may be important 

maximum flow benchmarks in the 

future for determining the maximum 

flow. However, it is not known at this 

time at what point, or velocity in cubic 

feet per second, a flow within the 

hydrological year changes from a 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75915 

flushing flow to a flow that causes 

geomorphologic or biological damage. 

Comment 3: The commenter states 

that protection of aquifers and 

groundwater recharge areas is especially 

important because of the impacts of 

climate change on the habitat of the 

vermilion darter; specifically those 

impacts ‘‘resulting in higher stream 

water temperatures and lower flows, 

and stormwater management needs and 

higher flows.’’ The Service should be 

consulted for disturbances within the 

critical habitat area as well as beyond 

the immediate critical habitat area 

within the recharge areas particularly in 

regard to springs and seeps. 

Our Response: Critical habitat only 

affects Federal agencies and those 

projects which have a Federal nexus. 

All Federal agencies must comply with 

section 7 of the Act. Section 7 requires 

consultation on Federal actions that 

may adversely affect critical habitat. 

Under section 7 of the Act, the Federal 

action agency must provide an analysis 

of cumulative effects along with other 

information, when requesting formal 

consultation. The Service will be 

consulted for disturbances to areas both 

within the critical habitat units as well 

as those within the recharge area, 

including springs and seeps that 

contribute to the instream flow in the 

tributaries, especially during times 

when stream flows are abnormally low. 

See the Effects of Critical Habitat 

Designation section of this rule for 

additional information on section 7 

consultation. 

Comment 4: The Service should 

include the spring run on the east side 

of north bound Alabama Highway 79 as 

part of the critical habitat designation. 

Vermilion darters have been collected 

there during the spawning season. 

Our Response: We acknowledge that 

there have been some sporadic 

collections of the vermilion darter at 

this spring run. We did not designate 

this site as critical habitat because the 

available information demonstrated that 

it did not contain the physical and 

biological features essential to the 

conservation of the species. See the 

Primary Constituent Elements section of 

this rule for areas essential to the 

conservation of the species. The spring 

run is located in a road-side ditch about 

30 feet long. The run is bordered on all 

sides by pipes, roads, and a parking lot. 

It is disjunct and drains into Unit 5 but 

first must traverse about 100 feet within 

a pipe under Highway 79. However, 

although the spring run is not 

designated as critical habitat, the site 

will continue to be subject to 

conservation actions we implement 

under section 7 of the Act. See the 

Effects of Critical Habitat Designation 

section of this rule for additional 

information on section 7 consultation. 

Public Comments 

Comment 5: The size of the critical 

habitat for the vermilion darter is 

inadequate. The entire watersheds of the 

proposed stream units should be 

designated as critical habitat. At a 

minimum, the Service should designate 

a 300- to 500-foot buffer zone along each 

bank of all 5 stream units as critical 

habitat. 

Our Response: The Act requires us to 

designate specific areas within the 

geographical area occupied by a species 

at the time it is listed which contain 

physical or biological features that are 

essential to the conservation of the 

species, and that may require special 

management considerations or 

protection. Specific areas outside the 

geographical area occupied by a species 

at the time of listing may also be 

designated critical habitat if it is 

determined that such areas are essential 

for the conservation of the species. We 

believe the five stream units that were 

proposed as critical habitat are occupied 

by the vermilion darter, are essential to 

its conservation, and require special 

management considerations or 

protection. As described in the 

proposed rule (74 FR 63366), we 

considered additional areas; however, 

they did not meet the criteria for 

designation as critical habitat. 

When evaluating the effects of any 

Federal action subject to section 7 

consultation, all activities which have 

the potential to destroy or adversely 

modify designated critical habitat must 

be considered. Adverse impacts to 

vermilion darter critical habitat might 

result from stormwater runoff, 

eutrophication, or potential changes in 

hydrology, geomorphology, etc. (see 

Effects of Critical Habitat Designation 

section below), that would include areas 

upstream of or adjacent to areas of 

stream channels that were designated 

critical habitat. Therefore, specific 

designation of these areas is 

unnecessary. Identification of the stream 

channel as critical habitat provides 

notice to Federal agencies to review 

activities conducted anywhere within 

the drainage for their potential effects to 

the designated portion of the channel. 

Critical habitat designation will alert 

third parties of the importance of the 

area to the survival of the vermilion 

darter. 

Comment 6: The six-lane Northern 

Beltline Corridor will cross Dry Creek 

and follow the hilly terrain within the 

Turkey Creek watershed. Dry Creek will 

be placed in culverts at two locations 

and the general water quality of the 

Turkey Creek watershed, along with the 

habitat of the vermilion darter, will be 

impacted negatively. 

Our Response: We evaluated the 

potential effects of the Northern Beltline 

on the vermilion darter and other trust 

resources in accordance with the Fish 

and Wildlife Coordination Act (48 Stat. 

401, as amended; 16 U.S.C. et seq.) and 

the Endangered Species Act and found 

that the project would not adversely 

affect any federally listed species. We 

will reinitiate consultation if new 

information indicates that the Northern 

Beltline is a threat to the species or its 

designated critical habitat, or if the 

project is modified in a manner or 

extent not previously considered (See 

Comment 1 in the Peer Reviewer 

Comments section). 

Comment 7: Strip mines are occurring 

along the Locust Fork of the Black 

Warrior River near Turkey Creek, 

outside of the vermilion darter’s range 

and the critical habitat, but within the 

lower portion of the Turkey Creek 

watershed. The Majestic Mine is 

permitted to discharge within Turkey 

Creek via the creek’s tributaries. The 

Service may want to consider extending 

the critical habitat of Turkey Creek 

downstream (from the lower section) to 

the confluence with the Locust Fork of 

the Black Warrior River, thus allowing 

the future downstream migration or 

reintroduction of the species. 

Our Response: The areas below the 

most downstream point of Turkey Creek 

do not contain, at this time, the physical 

and biological features essential to the 

conservation of the vermilion darter. 

Current and proposed coal mining 

activities, along with current 

geomorphic conditions, limit the 

expansion of the vermilion darter 

beyond this point within Turkey Creek. 

Comment 8: We are skeptical that the 

rule provides conservation standards 

adequate for the vermilion darter 

because critical habitat designation is 

based on data collected over a decade 

ago when the species was listed. An 

updated assessment may have expanded 

critical habitat to other areas. 

Our Response: We utilized the most 

current information available when 

preparing this designation, including 

information from studies conducted 

since the vermilion darter listing in 

2001 (i.e., Khudamrongsawat 2007, 

Khudamrongsawat et al. 2005, Rakes 

and Shute 2005, USFWS 2007). We have 

determined that sufficient information 

is available to identify basic features 

essential to the conservation of the 

species as well as specific areas that 

meet the definition of critical habitat 

(see Critical Habitat section below). 


srobinson on DSKHWCL6B1PROD with RULES
75916 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

Comment 9: Ensure the continuity in 

water flow in the Units to promote 

genetic flow within Turkey Creek, to 

prevent the extinction of the vermilion 

darter. 

Our Response: We will implement the 

requirements of the Act and continue to 

monitor all activities that might affect 

stream flow and continuity within the 

designated area in light of their effects 

on water quality or quantity (see 

Physical and Biological Features and 

Effects of Critical Habitat Designation 

sections below). 

Comments From States 

We received two editorial comments 

to the critical habitat rule from the 

Alabama Department of Conservation 

and Natural Resources, which have been 

incorporated into this final rule. No 

official position was expressed by the 

State on the critical habitat designation. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Such methods and procedures include, 

but are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

insure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

seeks or requests Federal agency 

funding or authorization for an action 

that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the obligation of the Federal 

action agency and the landowner is not 

to restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical or biological 

features which are essential to the 

conservation of the species, and which 

may require special management 

considerations or protection. Critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical and biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat), focusing on the 

principal biological or physical 

constituent elements (primary 

constituent elements) within an area 

that are essential to the conservation of 

the species (such as roost sites, nesting 

grounds, seasonal wetlands, water 

quality, tide, soil type). Primary 

constituent elements are the elements of 

physical and biological features that, 

when laid out in the appropriate 

quantity and spatial arrangement to 

provide for a species’ life-history 

processes, are essential to the 

conservation of the species. 

Under the Act, we can designate 

critical habitat in areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. We designate critical habitat in 

areas outside the geographical area 

occupied by a species only when a 

designation limited to its range would 

be inadequate to ensure the 

conservation of the species. When the 

best available scientific data do not 

demonstrate that the conservation needs 

of the species require such additional 

areas, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the species. An area 

currently occupied by the species but 

that was not occupied at the time of 

listing may, however, be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

we should designate as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. In particular, we recognize that 

climate change may cause changes in 

the arrangement of occupied habitat 

stream reaches. Climate change may 

lead to increased frequency and 

duration of severe storms and droughts 

(Golladay et al. 2004, p. 504; 

McLaughlin et al. 2002, p. 6074; Cook 

et al. 2004, p. 1015). From 2006 to 2007, 

drought conditions greatly reduced the 

habitat of the vermilion darter in 

Jefferson County (Drennen, pers. obs. 

2007). Fluker et al. (2007, p. 10) and 

Drennen (pers. obs. 2007) reported that 

ongoing drought conditions, coupled 

with rapid urbanization within 

watersheds containing imperiled 

darters, render the populations 

vulnerable to anthropomorphic 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75917 

disturbances such as water extraction, 

vehicles within Turkey Creek and its 

tributaries, and increased clearing or 

draining of vulnerable wetlands and 

spring seeps; especially during the 

breeding season when the darters 

concentrate in specific habitat areas of 

Turkey Creek and its tributaries. 

The information currently available 

on the effects of global climate change 

and increasing temperatures does not 

make sufficiently precise estimates of 

the location and magnitude of the 

effects. Nor are we currently aware of 

any climate change information specific 

to the habitat of the vermilion darter 

that would indicate what areas may 

become important to the species in the 

future. Therefore, as explained in the 

proposed rule (74 FR 63366), we are 

unable to determine what additional 

areas, if any, may be appropriate to 

include in the final critical habitat for 

this species to address the effects of 

climate change. 

We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be required for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: 

(1) Conservation actions implemented 

under section 7(a)(1) of the Act, 

(2) regulatory protections afforded by 

the requirement in section 7(a)(2) of the 

Act for Federal agencies to insure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) the 

prohibitions of section 9 of the Act if 

actions occurring in these areas may 

affect the species. Federally funded or 

permitted projects affecting listed 

species outside their designated critical 

habitat areas may still result in jeopardy 

findings in some cases. These 

protections and conservation tools will 

continue to contribute to recovery of 

this species. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Physical and Biological Features 

In accordance with sections 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12(b), in determining 

which areas within the geographical 

area occupied at the time of listing to 

designate as critical habitat, we 

considered the physical and biological 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. These 

include, but are not limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derive the specific physical and 

biological features required for the 

vermilion darter from the biological 

needs of the species as described in the 

Critical Habitat section of the proposed 

rule to designate critical habitat for the 

vermilion darter published in the 

Federal Register on December 3, 2009 

(74 FR 63366), and in the information 

presented below. Additional 

information can be found in the final 

listing rule published in the Federal 

Register on November 28, 2001 (66 FR 

59367), and the Vermilion Darter 

Recovery Plan, available on the Internet 

at http://ecos.fws.gov/docs/ 

recovery_plan/070802.pdf. We have 

determined that the vermilion darter 

requires the following physical and 

biological features: 

Space for Individual and Population 

Growth and for Normal Behavior 

While little is known about the 

specific space requirements of the 

vermilion darter within the Turkey 

Creek system, darters, in general, 

depend on space from geomorphically 

stable streams with varying water 

quantities and flow. Studies show that 

vermilion darters are found in the 

transition zone between a riffle 

(shallow, fast water) or run (deeper, fast 

water) and a pool (deep, slow water) 

(Blanco and Mayden 1999, pp. 18–20), 

usually at the head and foot of the riffles 

and downstream of the run habitat. 

Construction of impoundments and 

inadequate storm water management in 

the Turkey Creek watershed have 

altered stream banks and bottoms; 

degraded the riffles, runs, and pools; 

and altered the natural water quantity 

and flow of the stream. A stable stream 

maintains its horizontal dimension and 

vertical profile (stream banks and 

bottoms), thereby conserving the 

physical characteristics, including 

bottom features such as riffles, runs, and 

pools and the transition zones between 

these features. The riffles, runs, and 

pools not only provide space for the 

vermilion darter, but also provide cover 

and shelter for breeding, reproduction, 

and growth of offspring. 

In addition, the current range of the 

vermilion darter is reduced to localized 

sites due to fragmentation, separation, 

and destruction of vermilion darter 

populations. There are both natural 

(waterfall) and manmade 

(impoundments) dispersal barriers that 

not only contribute to the separation 

and isolation of vermilion darter 

populations, but also affect water 

quality. Fragmentation of the species’ 

habitat has isolated the populations 

within the Turkey Creek system, 

reduced space for rearing and 

reproduction and population 

maintenance, reduced adaptive 

capabilities, and increased likelihood of 

local extinctions (Hallerman 2003, pp. 

363–364; Burkhead et al. 1997, pp. 397– 

399). Genetic variation and diversity 

within a species are essential for 

recovery, adaptation to environmental 

changes, and long-term viability 

(capability to live, reproduce, and 

develop) (Noss and Cooperrider 1994, 

pp. 282–297; Harris 1984, pp. 93–107). 

Long-term viability is founded on 

numerous interbreeding, local 

populations throughout the range 

(Harris 1984, pp. 93–107). Continuity of 

water flow between suitable habitats is 

essential in preventing further 

fragmentation of the species’ habitat and 

populations; conserving the essential 

riffles, runs, and pools needed by 

vermilion darters; and promoting 

genetic flow throughout the 

populations. Continuity of habitat will 

maintain spawning, foraging, and 

resting sites, as well as provide gene 

flow throughout the population. 

Connectivity of habitats, as a whole, 

also permits improvement in water 

quality and water quantity by allowing 

an unobstructed water flow throughout 

the connected habitats. 

Based on the biological information 

and needs discussed above, it is 

essential to protect riffles, runs, and 

pools, and the continuity of these 

structures, to accommodate feeding, 

spawning, growth, and other normal 

behaviors of the vermilion darter and to 

promote genetic flow within the species. 


srobinson on DSKHWCL6B1PROD with RULES
75918 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Water Quantity and Flow 

Much of the cool, clean water 

provided to the Turkey Creek main stem 

comes from consistent and steady 

groundwater sources (springs) that 

contribute to the flow and water 

quantity in the tributaries (Beaver Creek, 

Dry Creek, Dry Branch, and the 

unnamed tributary to Beaver Creek). 

Flowing water provides a means for 

transporting nutrients and food items, 

moderating water temperatures and 

dissolved oxygen levels, and diluting 

nonpoint- and point-source pollution. 

Impoundments within Turkey and Dry 

Creeks not only serve as dispersal 

barriers but also have altered stream 

flows from natural conditions. Without 

clean water sources, water quality and 

water quantity would be considerably 

lower and would significantly impair 

the normal life stages and behavior of 

the vermilion darter. 

Favorable water quantity is an average 

daily discharge of over 50 cubic feet per 

second within the Turkey Creek main 

stem (U.S. Geological Survey 2009, 

compiled from average annual 

statistics), inclusive of both surface 

runoff and groundwater sources (springs 

and seepages) and exclusive of flushing 

flows. However, the favorable upper 

limit for the average daily discharge is 

not known. Along with this average 

daily discharge, both minimum and 

flushing flows are necessary within the 

tributaries to maintain all life stages and 

to remove fine sediments and dilute 

other pollutants (Drennen pers. obs., 

February 2009a; Instream Flow Council 

2004, pp. 103–104, 375; Gilbert et al. 

eds. 1994, pp. 505–522; Moffett and 

Moser 1978, pp. 20–21). These flows are 

supplemented by groundwater and 

contribute to the overall streamcleansing effect by adding to the total 

flow of high-quality water. This, in turn, 

helps in maintenance of stream banks 

and bottoms, essential for normal life 

stages and behavior of the vermilion 

darter. However, excessive stormwater 

flow can alter the geomorphology of the 

existing stream by disturbing bottom 

substrate and banksides along with 

dislodging vegetation. 

Water Quality 

Factors that can potentially alter 

water quality are decreases in water 

quantity through droughts and periods 

of low seasonal flow, precipitation 

events, nonpoint-source runoff, human 

activities within the watershed, random 

spills, and unregulated stormwater 

discharge events (Instream Flow 

Council 2004, pp. 29–50). These factors 

are particularly harmful during drought 

conditions when flows are depressed 

and pollutants are concentrated. 

Impoundments also affect water quality 

by reducing water flow, altering 

temperatures, and concentrating 

pollutants (Blanco and Mayden 1999, 

pp. 5–6, 36). Nonpoint-source pollution 

and alteration of flow regimes are 

primary threats to the vermilion darter 

in the Turkey Creek watershed. 

Aquatic life, including fish, requires 

acceptable levels of dissolved oxygen. 

The type of organism and its life stage 

determine the level of oxygen required. 

Generally, among fish, the young life 

forms are the most sensitive. The 

amount of dissolved oxygen that is 

present in the water (the saturation 

level) depends upon water temperature. 

As the water temperature increases, the 

saturated dissolved oxygen level 

decreases. The more oxygen there is in 

the water, the greater the assimilative 

capacity (ability to consume organic 

wastes with minimal impact) of that 

water; lower water flows have a reduced 

assimilative capacity (Pitt 2000, pp. 

6–7). Low-flow conditions affect the 

chemical environment occupied by the 

fish, and extended low-flow conditions 

coupled with higher pollutant levels 

would likely result in behavior changes 

within all life stages, but could be 

particularly detrimental to early life 

stages (e.g., embryo, larvae, and 

juvenile). 

Optimal water quality lacks harmful 

levels of pollutants such as inorganic 

contaminants like copper, arsenic, 

mercury, and cadmium; organic 

contaminants such as human and 

animal waste products; endocrinedisrupting chemicals; pesticides; 

nitrogen, potassium, and phosphorous 

fertilizers; and petroleum distillates. 

Sediment is the most abundant 

pollutant produced in the Mobile River 

Basin (Alabama Department of 

Environmental Management 1996, 

pp.13–15). Siltation (excess sediments 

suspended or deposited in a stream) 

contributes to turbidity of the water and 

has been shown to reduce 

photosynthesis in aquatic plants, 

suffocate aquatic insects, smother fish 

eggs, clog fish gills, and fill in essential 

interstitial spaces (spaces between 

stream substrates) used by aquatic 

organisms for spawning and foraging; 

therefore, siltation negatively impacts 

fish growth, physiology, behavior, 

reproduction, and survival. 

Eutrophication (excessive nutrients 

present, such as nitrogen and 

phosphorous) promotes heavy algal 

growth that covers and eliminates clean 

rock or gravel habitats necessary for 

vermilion darter feeding and spawning. 

High conductivity values are an 

indicator of hardness and alkalinity and 

may denote water nitrification (Hackney 

et al. 1992, pp.199–203). Generally, 

early life stages of fishes are less tolerant 

of environmental contamination than 

adults or juveniles (Little et al. 1993, 

p. 67). 

Adequate water quality and good to 

optimal water quantity are necessary to 

dilute impacts from storm water and 

other non-natural effluents. Harmful 

levels of pollutants impair critical 

behavior functions in fish and are 

reflected in population-level responses 

(reduced population size, biomass, year 

class success, etc.). Adequate water 

quantity and flow and good to optimal 

water quality are also essential for 

normal behavior, growth, and viability 

during all life stages. However, 

excessive water quantity as stormwater 

runoff may destabilize and move bottom 

and bankside substrates as well as 

increase instream sedimentation and 

decrease water quantity in general. 

The vermilion darter requires 

relatively clean, cool, flowing water 

within the Turkey Creek main stem and 

tributaries. The Clean Water Act (33 

U.S.C. 1251 et seq.), Water Quality Act 

(Pub. L. 100–4), and Alabama Water 

Pollution Control Act (Ala. Code § 22– 

22–1) establish guidelines for water 

usage and standards of quality for the 

State’s waters necessary to preserve and 

protect aquatic life. Essential water 

quality attributes for darters and other 

fish species in fast to middle water flow 

streams include: dissolved oxygen 

levels greater than 6 parts per million 

(ppm), temperatures between 7 and 26.7 

°Celsius (C) (45 and 80 °Fahrenheit (F)) 

with spring egg incubation temperatures 

from 12.2 to 18.3 °C (54 to 65 °F), a 

specific conductance (ability of water to 

conduct an electric current, based on 

dissolved solids in the water) of less 

than approximately 225 micro Siemens 

per centimeter at 26.7 °C (80 °F), and 

low concentrations of free or suspended 

solids (organic and inorganic sediments) 

less than 10 Nephelometric Turbidity 

Units (NTU; units used to measure 

sediment discharge) and 15 mg/L Total 

Suspended Solids (TSS; measured as 

mg/L of sediment in water) (Teels et al. 

1975, pp. 8–9; Ultschet et al. 1978, pp. 

99–101; Ingersoll et al. 1984, pp. 131– 

138; Kundell and Rasmussen 1995, pp. 

211–212; Henley et al. 2000, pp. 125– 

139; Meyer and Sutherland 2005, pp. 

43–64). 

Food 

The vermilion darter is a benthic 

(bottom) insectivore consuming larval 

chironomids (midges), tipulids (crane 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75919 

flies), and hydropsychids (caddisflies), 

along with occasional microcrustaceans 

(Boschung and Mayden 2004, p. 520; 

Khudamrongsawat et al. 2005, p. 472). 

Caddisflies and crane flies are pollutionsensitive organisms found in good to 

fair water quality (Auburn University 

1993, p. 53). Variation in instream flow 

maintains the stream bottom where food 

for the vermilion darter is found, 

transports these organisms, and 

provides oxygen and other attributes to 

various invertebrate life stages. 

Sedimentation has been shown to wear 

away and suffocate periphyton 

(organisms that live attached to objects 

underwater) and disrupt aquatic insect 

communities (Waters 1995, pp. 53–86; 

Knight and Welch 2001, pp. 132–135). 

In addition, eutrophication promotes 

heavy algal growth that covers and 

eliminates the clean rock or gravel 

habitats necessary for vermilion darter 

feeding and spawning. A decrease in 

water quality and instream flow will 

correspondingly decrease the major food 

species for the vermilion darter. 

Excessive water quantity as stormwater 

runoff may destabilize and move bottom 

and bankside substrates as well as 

increase instream sedimentation and 

decrease water quantity in general. 

Thus, food availability for the vermilion 

darter is affected by instream flow and 

water quality. 

Based on the biological information 

and needs discussed above, we believe 

it is essential that vermilion darter 

habitat consist of unaltered, connected, 

stable streams to maintain flow, prevent 

sedimentation, and promote good water 

quality absent harmful pollutants. 

Cover or Shelter (Sites for Breeding, 

Reproduction or Rearing) 

Vermilion darters depend on specific 

bottom substrates for normal and robust 

life processes such as spawning, rearing, 

protection of young during life stages, 

protection of adults when threatened, 

foraging, and feeding. These bottom 

substrates are dominated by fine gravel, 

along with some sand, coarse gravel, 

cobble, and bedrock (Blanco and 

Mayden 1999, pp. 24–26; Drennen pers. 

obs., February 2009b). The vermilion 

darter prefers small-sized gravel for 

spawning substrates (Blanchard and 

Stiles 2005, pp. 1–12). Occasionally, 

there are also small sticks and limbs on 

the bottom substrate and within the 

water column (Stiles pers. comm., 

September 1999; Drennen pers. obs., 

May 2007). 

Excessive fine sediments of small 

sands, silt, and clay may embed in the 

larger substrates, filling in interstitial 

spaces between these structures. Loss of 

these interstitial areas removes 

spawning and rearing areas, foraging 

and feeding sites, and escape and 

protection localities (Sylte and 

Fischenich 2002, pp. 1–25). In addition, 

dense, filamentous algae growth on the 

substrates may restrict or eliminate the 

usefulness of the interstitial spaces by 

the vermilion darter. Excessive fine 

sediment can also impact aquatic 

vegetation by reducing sunlight due to 

turbid water or by covering the 

vegetation with fine silt. Aquatic 

vegetation is likely also used by 

vermilion darters as a spawning 

substrate (Kuhajda pers. comm., May 

2007). 

Geomorphic instability within the 

streambed and along the banks from 

high stormwater flow results in scouring 

and erosion of these areas, leading to 

sedimentation and loss of vegetation 

and substrate for shelter and cover for 

vermilion darters, their eggs, and their 

young. This fine sediment deposition 

also reduces the area available for food 

sources, such as macroinvertebrates and 

periphyton (Tullos 2005, pp. 80–81). 

Thus, based on the biological 

information and needs above, essential 

vermilion darter habitat consists of 

stable streams with a stream flow 

sufficient to remove sediment and 

eliminate the filling in of interstitial 

spaces and substrate to accommodate 

spawning, rearing, protection of young, 

protection of adults when threatened, 

foraging, and feeding. 

Primary Constituent Elements for 

Vermilion Darter 

Under the Act and its implementing 

regulations, we are required to identify 

the physical and biological features 

essential to the conservation of the 

vermilion darter in areas occupied at the 

time of listing, focusing on the features’ 

primary constituent elements. We 

consider primary constituent elements 

to be the elements of physical and 

biological features that, when laid out in 

the appropriate quantity and spatial 

arrangement to provide for a species’ 

life-history processes, are essential to 

the conservation of the species. Areas 

designated as critical habitat for 

vermilion darter contain only occupied 

areas within the species’ historical 

geographic range, and contain sufficient 

primary constituent elements to support 

at least one life-history process. 

Based on our current knowledge of 

the life history, biology, and ecology of 

vermilion darter and the requirements 

of the habitat to sustain the life-history 

processes of the species, we determined 

that the primary constituent elements 

specific to vermilion darter are: 

Primary Constituent Element 1. 

Geomorphically stable stream bottoms 

and banks (stable horizontal dimension 

and vertical profile) in order to maintain 

the bottom features (riffles, runs, and 

pools) and transition zones between 

bottom features, to promote connectivity 

between spawning, foraging, and resting 

sites, and to maintain gene flow 

throughout the species’ range. 

Primary Constituent Element 2. 

Instream flow regime with an average 

daily discharge over 50 cubic feet per 

second, inclusive of both surface runoff 

and groundwater sources (springs and 

seepages) and exclusive of flushing 

flows. 

Primary Constituent Element 3. Water 

quality with temperature not exceeding 

26.7 °C (80 °F), dissolved oxygen 6.0 

milligrams or greater per liter, turbidity 

of an average monthly reading of 10 

NTUs and 15mg/l TSS or less; and a 

specific conductance of no greater than 

225 micro Siemens per centimeter at 

26.7 °C (80 °F). 

Primary Constituent Element 4. Stable 

bottom substrates consisting of fine 

gravel with coarse gravel or cobble, or 

bedrock with sand and gravel, with low 

amounts of fine sand and sediments 

within the interstitial spaces of the 

substrates along with adequate aquatic 

vegetation. 

With this designation of critical 

habitat, we intend to identify the 

physical and biological features 

essential to the conservation of the 

species, through the identification of the 

appropriate quantity and spatial 

arrangement of the primary constituent 

elements sufficient to support the lifehistory processes of the species. Each of 

the areas identified as critical habitat in 

this rule contains sufficient primary 

constituent elements to provide for one 

or more of the life-history processes of 

the vermilion darter. 

Criteria Used To Identify Final Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we used the best scientific and 

commercial data available to designate 

critical habitat. We reviewed available 

information pertaining to the habitat 

requirements of this species. In 

accordance with the Act and its 

implementing regulation at 50 CFR 

424.12(e), we considered whether 

designating additional areas—outside 

those currently occupied as well as 

those occupied at the time of listing— 

are necessary to ensure the conservation 

of the species. We are designating all 

stream reaches in occupied habitat as 

critical habitat. We have defined 

‘‘occupied habitat’’ as those stream 

reaches occupied at the time of listing, 

all of which are still known as of the 

publication date of this rulemaking to be 


srobinson on DSKHWCL6B1PROD with RULES
75920 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

occupied by the vermilion darter; these 

stream reaches comprise the entire 

known range of the vermilion darter. We 

are not designating any areas outside the 

known range of the species because the 

historical range of the vermilion darter, 

beyond currently occupied areas, is 

unknown, and dispersal beyond the 

current range is not likely due to 

dispersal barriers. 

We used information from surveys 

and reports prepared by the Alabama 

Department of Conservation and Natural 

Resources, Alabama Geological Survey, 

Samford University, University of 

Alabama, and the Service to identify the 

specific locations occupied by the 

vermilion darter. Currently, occupied 

habitat for the species is limited and 

isolated. The species is currently 

located within the upper mainstem 

reaches of Turkey Creek and four 

tributaries: unnamed tributary to Beaver 

Creek, Beaver Creek, Dry Creek, and Dry 

Branch in Pinson, Jefferson County, 

Alabama (Blanco and Mayden 1999, 

pp.18–20; Drennen pers. obs. March 

2008). 

Following the identification of the 

specific locations occupied by the 

vermilion darter, we determined the 

appropriate length of stream segments to 

designate by identifying the upstream 

and downstream limits of these 

occupied sections necessary for the 

conservation of the vermilion darter. 

Populations of vermilion darters are 

isolated due to dispersal barriers. 

Accordingly, we set the upstream and 

downstream limits of each critical 

habitat unit by identifying landmarks 

(bridges, confluences, road crossings, 

and dams) above and below the upperand lower-most reported locations of the 

vermilion darter in each stream reach to 

ensure incorporation of all potential 

sites of occurrence. These stream 

reaches were then digitized using 7.5- 

minute topographic maps and ARCGIS 

to produce the critical habitat map. 

The five final critical habitat units 

contain physical and biological features 

with one or more of the primary 

constituent elements in the appropriate 

quantity and spatial arrangement for the 

features to support multiple life 

processes for the vermilion darter and to 

be essential to the conservation of this 

species. 

When identifying final critical habitat 

boundaries, we make every effort to 

avoid including developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

usually lack primary constituent 

elements for endangered or threatened 

species. Areas identified as critical 

habitat for the vermilion darter below 

include only stream channels within the 

ordinary high-water line and do not 

contain any developed areas or 

structures. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain the 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. 

The five units we are designating as 

critical habitat will require some level of 

management to address the current and 

future threats to the physical and 

biological features essential to the 

conservation of the species. None of the 

final critical habitat units are presently 

under special management or protection 

provided by a legally operative plan or 

agreement for the conservation of the 

vermilion darter. Various activities in or 

adjacent to the critical habitat units 

described in this final rule may affect 

one or more of the physical and 

biological features. For example, 

features in the final critical habitat 

designation may require special 

management due to threats posed by the 

following activities or disturbances: 

urbanization activities and inadequate 

stormwater management (such as stream 

channel modification for flood control 

or gravel extraction) that could cause an 

increase in bank erosion; significant 

changes in the existing flow regime 

within the streams due to water 

diversion or withdrawal; significant 

alteration of water quality; significant 

alteration in the quantity of 

groundwater and alteration of spring 

discharge sites; significant changes in 

stream bed material composition and 

quality due to construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge construction; culvert and pipe 

installation; stormwater management; 

and other watershed and floodplain 

disturbances that release sediments or 

nutrients into the water. Other activities 

that may affect physical and biological 

features in the final critical habitat units 

include those listed in the Effects of 

Critical Habitat Designation section 

below. 

Final Critical Habitat Designation 

We are designating 5 units, totaling 

approximately 21.2 stream km (13.1 

stream mi), as critical habitat for the 

vermilion darter. The critical habitat 

units described below constitute our 

best assessment of areas that currently 

meet the definition of critical habitat for 

the vermilion darter. Table 1 identifies 

the final units for the species, the 

occupancy of the units, the final extent 

of critical habitat for the vermilion 

darter, and ownership of the final 

designated areas. 

TABLE 1—OCCUPANCY AND OWNERSHIP OF THE FINAL CRITICAL HABITAT UNITS FOR THE VERMILION DARTER

Unit Location Occupied 

Private ownership stream 

kilometers 

(miles) 

State, county, 

city ownership 

stream kilometers 

(miles) 

Total 

1 .......................... Turkey Creek .............................................................. Yes ..................... 14.9 

(9.2) 

0.3 

(0.2) 

15.2 

(9.4) 

2 .......................... Dry Branch ................................................................. Yes ..................... 0.7 

(0.4) 

........................ 0.7 

(0.4) 

3 .......................... Beaver Creek ............................................................. Yes ..................... 0.9

(0.6) 

0.1 

(< 0.1) 

1.0 

(0.6) 

4 .......................... Dry Creek ................................................................... Yes ..................... 0.6 

(0.4) 

........................ 0.6 

(0.4) 

5 .......................... Unnamed Tributary to Beaver Creek ......................... Yes ..................... 3.3 

(2.0) 

0.4 

(0.2) 

3.7 

(2.2) 

Total ............. ..................................................................................... ............................ 20.4 

(12.6) 

0.8 

(0.5) 

21.2 

(13.1) 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75921 

We present brief descriptions of each 

unit and reasons why they meet the 

definition of critical habitat below. The 

final critical habitat units include the 

stream channels of the creek and 

tributaries within the ordinary highwater line. As defined in 33 CFR 329.11, 

the ordinary high-water line on nontidal 

rivers is the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as a clear, natural 

water line impressed on the bank; 

shelving; changes in the character of 

soil; destruction of terrestrial vegetation; 

the presence of litter and debris; or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. In Alabama, for nonnavigable 

waterways, the riparian landowner 

owns the stream to the middle of the 

channel. 

For each stream reach of final critical 

habitat, the upstream and downstream 

boundaries are described generally 

below; more precise descriptions are 

provided in the Regulation 

Promulgation section at the end of this 

final rule. 

Unit 1: Turkey Creek, Jefferson 

County, Alabama: 

Unit 1 includes 15.2 km (9.4 mi) in 

Turkey Creek from Shadow Lake Dam 

downstream to the Section 13/14 (T15S, 

R2W) line, as taken from the U.S. 

Geological Survey 7.5-minute 

topographical map (Pinson quadrangle). 

Approximately 14.9 km (9.2 mi), or 98 

percent of this area is privately owned. 

The remaining 0.3 km (0.2 mi), or 2 

percent is publicly owned by the City of 

Pinson or Jefferson County in the form 

of bridge crossings and road easements. 

Turkey Creek supports the most 

abundant and robust populations of the 

vermilion darter in the watershed. 

Populations of vermilion darters are 

small and isolated within specific 

habitat sites of Turkey Creek from 

Shadow Lake dam downstream to the 

old strip mine pools (13/14 S T15S R2W 

section line, as taken from the U.S. 

Geological Survey 7.5-minute 

topographical map (Pinson 

quadrangle)). We consider the entire 

reach of Turkey Creek that composes 

Unit 1 to be occupied. 

One of the three known spawning 

sites for the species (Stiles, pers. comm. 

1999) is located within the confluence 

of Turkey Creek and Tapawingo Spring 

run (Primary Constituent Element 4). In 

addition, Turkey Creek provides the 

most darter habitat for the vermilion 

darters with an abundance of pools, 

riffles, and runs (Primary Constituent 

Element 1). These geomorphic 

structures provide the species with 

spawning, foraging, and resting areas 

(Primary Constituent Elements 1 and 4), 

along with good water quality, quantity, 

and flow, which support the normal life 

stages and behavior of the vermilion 

darter and the species’ prey sources 

(Primary Constituent Elements 2 and 3). 

There are five impoundments in 

Turkey Creek (Blanco and Mayden 

1999, pp. 5–6, 36, 63) limiting the 

connectivity of the range and expansion 

of the species into other units and 

posing a risk of extinction to the species 

due to changes in flow regime, habitat, 

water quality, water quantity, and 

stochastic events such as drought. These 

impoundments accumulate nutrients 

and undesirable fish species that could 

propose threats to vermilion darters and 

the species’ habitat. Other threats to the 

vermilion darter and its habitat in 

Turkey Creek which may require special 

management and protection of primary 

constituent elements include the 

potential of: urbanization activities 

(such as channel modification for flood 

control, inadequate stormwater 

management, or gravel extraction) that 

could result in increased bank erosion; 

significant changes in the existing flow 

regime due to water diversion or water 

withdrawal; significant alteration of 

water quality; and significant changes in 

stream bed material composition and 

quality as a result of construction 

projects and maintenance activities; offroad vehicle use; sewer, gas, and water 

easements; bridge construction; culvert 

and pipe installation; and other 

watershed and floodplain disturbances 

that release sediments or nutrients into 

the water. 

Unit 2: Dry Branch, Jefferson County, 

Alabama: 

Unit 2 includes 0.7 km (0.4 mi) of Dry 

Branch from the bridge at Glenbrook 

Road downstream to the confluence 

with Beaver Creek. 

Most of the 0.7 km (0.4 mi) or close 

to 100 percent of this area is privately 

owned. Less than 1 percent of the area 

is publicly owned by the City of Pinson 

or Jefferson County in the form of bridge 

crossings and road easements. 

Dry Branch provides supplemental 

water quantity to Turkey Creek proper 

(Unit 1) and provides connectivity to 

additional bottom substrate habitat and 

possible spawning sites (Primary 

Constituent Elements 1, 3, and 4). One 

of the three known spawning sites for 

the species is located within the 

confluence of this reach (Primary 

Constituent Element 1 and 4) and 

Beaver Creek (Stiles, pers. comm. 2009). 

Threats to the vermilion darter and its 

habitat at Dry Branch which may 

require special management and 

protection of Primary Constituent 

Elements 1, 3, and 4 include the 

potential of: urbanization activities 

(such as channel modification for flood 

control, inadequate stormwater 

management, construction of 

impoundments, and gravel extraction) 

that could result in increased bank 

erosion; significant changes in the 

existing flow regime due to construction 

of impoundments, water diversion, or 

water withdrawal; significant alteration 

of water quality; and significant changes 

in stream bed material composition and 

quality as a result of construction 

projects and maintenance activities; offroad vehicle use; sewer, gas, and water 

easements; bridge construction; culvert 

and pipe installation; and other 

watershed and floodplain disturbances 

that release sediments or nutrients into 

the water. 

Unit 3: Beaver Creek, Jefferson 

County, Alabama: 

Unit 3 includes 1.0 km (0.6 mi) of 

Beaver Creek from the confluence with 

the unnamed tributary to Beaver Creek 

and Dry Branch downstream to the 

confluence with Turkey Creek. 

Almost 0.9 km (0.6 mi), or 94 percent 

of this area, is privately owned. The 

remaining 0.1 km (under 0.1 mi), or 6 

percent is publicly owned by the City of 

Pinson or Jefferson County in the form 

of bridge crossings and road easements. 

Beaver Creek supports populations of 

vermilion darters, and provides 

supplemental water quantity to Turkey 

Creek proper (Primary Constituent 

Elements 1 and 2). The reach also 

contains adequate bottom substrate for 

vermilion darters to use in spawning, 

foraging, and other life processes 

(Primary Constituent Element 4). Beaver 

Creek makes available additional habitat 

and spawning sites, and offers 

connectivity with other vermilion darter 

populations within Turkey Creek, Dry 

Branch, and the unnamed tributary to 

Beaver Creek (Primary Constituent 

Elements 1 and 4). 

Threats to the vermilion darter and its 

habitat at Beaver Creek which may 

require special management of Primary 

Constituent Elements 1, 2, and 4 include 

the potential of: urbanization activities 

(such as channel modification for flood 

control, construction of impoundments, 

gravel extraction) that could result in 

increased bank erosion; significant 

changes in the existing flow regime due 

to inadequate stormwater management, 

water diversion, or water withdrawal; 

significant alteration of water quality; 

and significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge construction; culvert and pipe 

installation; and other watershed and 


srobinson on DSKHWCL6B1PROD with RULES
75922 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

floodplain disturbances that release 

sediments or nutrients into the water. 

Unit 4: Dry Creek, Jefferson County, 

Alabama: 

Unit 4 includes 0.6 km (0.4 mi) of Dry 

Creek from Innsbrook Road downstream 

to the confluence with Turkey Creek. 

One hundred percent of this area, is 

privately owned. 

Dry Creek supports populations of 

vermilion darters and provides 

supplemental water quantity to Turkey 

Creek proper (Primary Constituent 

Elements 1 and 2). The reach also 

contains adequate bottom substrate for 

vermilion darters to use in spawning, 

foraging, and other life processes 

(Primary Constituent Element 4). Dry 

Creek makes available additional habitat 

and spawning sites, and offers 

connectivity with vermilion darter 

populations in Turkey Creek (Primary 

Constituent Element 1). 

There are two impoundments in Dry 

Creek (Blanco and Mayden 1999, pp. 56, 

62) which limit the range and expansion 

of the species within the unit and 

increases the risk of extinction due to 

changes in flow regime, habitat or water 

quality, water quantity, and stochastic 

events such as drought. These 

impoundments amass nutrients and 

undesirable fish species that could 

propose threats to vermilion darters and 

to its habitat. Threats that may require 

special management and protection of 

primary constituent elements include: 

urbanization activities (such as channel 

modification for flood control and 

gravel extraction) that could result in 

increased bank erosion; significant 

changes in the existing flow regime due 

to inadequate stormwater management 

and impoundment construction, water 

diversion, or water withdrawal; 

significant alteration of water quality; 

and significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities, off-road vehicle 

use, sewer, gas and water easements, 

bridge construction, culvert and pipe 

installation, and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Unit 5: Unnamed Tributary to Beaver 

Creek, Jefferson County, Alabama: 

Unit 5 includes 3.7 km (2.3 mi) of the 

unnamed tributary of Beaver Creek from 

the Section 1⁄2 (T16S, R2W) line, as 

taken from the U.S. Geological Survey 

7.5-minute topographical map (Pinson 

quadrangle), downstream to its 

confluence with Beaver Creek. 

Almost 3.3 km (2.1 mi), or 89 percent 

of this area, is privately owned. The 

remaining 0.4 km (0.2 mi), or 11 

percent, is publicly owned by the City 

of Pinson or Jefferson County in the 

form of bridge crossings and road 

easements. 

The unnamed tributary to Beaver 

Creek supports populations of vermilion 

darters and provides supplemental 

water quantity to Turkey Creek proper 

(Primary Constituent Elements 1 and 2). 

The unnamed tributary to Beaver Creek 

has been intensely geomorphically 

changed by man over the last 100 years. 

The majority of this reach has been 

channelized for flood control, as it runs 

parallel to Highway 79. There are 

several bridge crossings, and the reach 

has a history of industrial uses along the 

bank. However, owing to the 

groundwater effluent that constantly 

supplies this reach with clean and 

flowing water (Primary Constituent 

Elements 2 and 3), the reach has been 

able to support significant aquatic 

vegetation and a population of 

vermilion darters at several locations. 

One of the three known spawning sites 

for the species is located within this 

reach (Primary Constituent Element 4) 

(Kuhajda, pers. comm. May 2007). 

The headwaters of the unnamed 

tributary to Beaver Creek is 

characterized by natural flows that are 

attributed to an abundance of spring 

groundwater discharges contributing 

adequate water quality, water quantity, 

and substrates (Primary Constituent 

Elements 1, 2, and 3). Increasing the 

connectivity of the vermilion darter 

populations (Primary Constituent 

Element 1) into the upper reaches of this 

tributary is an essential conservation 

requirement as it would expand the 

range and decrease the vulnerability of 

these populations to stochastic threats. 

Threats to the vermilion darter and its 

habitat which may require special 

management and protection of primary 

constituent elements are: urbanization 

activities (such as channel modification 

for flood control, and gravel extraction) 

that could result in increased bank 

erosion; significant changes in the 

existing flow regime due to inadequate 

stormwater management and 

impoundment construction, water 

diversion, or water withdrawal; 

significant alteration of water quality; 

and significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge construction; culvert and pipe 

installation; and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to insure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuits Courts of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service, 245 F.3d 434, 442 (5th 

Cir. 2001)), and we do not rely on this 

regulatory definition when analyzing 

whether an action is likely to destroy or 

adversely modify critical habitat. Under 

the statutory provisions of the Act, we 

determine destruction or adverse 

modification on the basis of whether, 

with implementation of the final 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to insure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. 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. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, or are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action; 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction; 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75923 

(3) Are economically and 

technologically feasible; and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

vermilion darter or its designated 

critical habitat require section 7 

consultation under the Act. Activities 

on State, tribal, local, or private lands 

requiring 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 us under section 10 of 

the Act) or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7 consultation 

process. For instance, the Service 

should be consulted for disturbances to 

areas both within the final critical 

habitat units as well as upstream of 

those areas known to support vermilion 

darter, including springs and seeps that 

contribute to the instream flow in the 

tributaries, especially during times 

when stream flows are abnormally low 

(i.e., during droughts). 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 

permitted do not require section 7 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that alter the physical and 

biological features to an extent that 

appreciably reduces the conservation 

value of critical habitat for the vermilion 

darter. As discussed above, the role of 

critical habitat is to support life-history 

needs of the species and provide for the 

conservation of the species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the vermilion darter include, but are 

not limited to: 

(1) Actions that would alter the 

geomorphology of the stream habitats. 

Such activities could include, but are 

not limited to, inadequate stormwater 

management, instream excavation or 

dredging, impoundments, 

channelization, and discharge of fill 

materials. These activities could cause 

aggradation or degradation of the 

channel bed elevation or significant 

bank erosion and could result in 

entrainment or burial of this species, as 

well as other direct or cumulative 

adverse effects to this species and its life 

cycle. 

(2) Actions that would significantly 

alter the existing flow regime. Such 

activities could include, but are not 

limited to, inadequate stormwater 

management, impoundments, water 

diversion, water withdrawal, and 

hydropower generation. These activities 

could eliminate or reduce the habitat 

necessary for growth and reproduction 

of the vermilion darter. 

(3) Actions that would significantly 

alter water chemistry or water quality 

(for example, changes to temperature or 

pH, introduced contaminants, or excess 

nutrients). Such activities could 

include, but are not limited to, 

inadequate stormwater management, the 

release of chemicals, biological 

pollutants, or heated effluents into 

surface water or connected groundwater 

at a point source or by dispersed release 

(nonpoint source). These activities 

could alter water conditions that are 

beyond the tolerances of the species and 

result in direct or cumulative adverse 

effects on the species and its life cycle. 

(4) Actions that would significantly 

alter stream bed material composition 

and quality by increasing sediment 

deposition or filamentous algal growth. 

Such activities could include, but are 

not limited to, inadequate stormwater 

management; construction projects; road 

and bridge maintenance activities; 

livestock grazing; timber harvest; offroad vehicle use; underground gas, 

sewer, water, and electric lines; and 

other watershed and floodplain 

disturbances that release sediments or 

nutrients into the water. These activities 

could eliminate or reduce habitats 

necessary for the growth and 

reproduction of the species by causing 

excessive sedimentation and burial of 

the species or their habitats, or 

eutrophication leading to excessive 

filamentous algal growth. Excessive 

filamentous algal growth can cause 

extreme decreases in nighttime 

dissolved oxygen levels through 

vegetation respiration, and cover the 

bottom substrates and the interstitial 

spaces between cobble and gravel. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resource management 

plan (INRMP) by November 17, 2001. 

An INRMP integrates implementation of 

the military mission of the installation 

with stewardship of the natural 

resources found on the base. Each 

INRMP includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 


srobinson on DSKHWCL6B1PROD with RULES
75924 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the final critical habitat designation. 

Therefore, there are no specific lands 

that meet the criteria for being exempted 

from the designation of critical habitat 

under section 4(a)(3) of the Act. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate or make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

and commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned. In making that 

determination, the statute on its face, as 

well as the legislative history, are clear 

that the Secretary has broad discretion 

regarding which factor(s) to use and 

how much weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, national security impacts, and 

any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we make this determination; 

we can exclude the area only if such 

exclusion would not result in the 

extinction of the species. 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular areas as 

critical habitat. In order to consider 

economic impacts, we prepared a draft 

economic analysis of the proposed 

critical habitat designation and related 

factors (RTI International 2010a). The 

draft analysis (dated June 29, 2010) was 

made available for public review from 

June 29, 2010, through July 29, 2010 (75 

FR 37350). No comments were received 

on the draft economic analysis. 

Following the close of the comment 

period, a final analysis (dated July 2010) 

of the potential economic effects of the 

designation was developed, taking into 

consideration any new information (RTI 

International 2010b). 

The intent of the final economic 

analysis (FEA) is to quantify the 

economic impacts of all potential 

conservation efforts for the vermilion 

darter. Some of these costs will likely be 

incurred regardless of whether we 

designate critical habitat (baseline). The 

economic impact of the final critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering protections already in place 

for the species (e.g., under the Federal 

listing and other Federal, State, and 

local regulations). The baseline, 

therefore, represents the costs incurred 

regardless of whether critical habitat is 

designated. The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts are those 

not expected to occur absent the 

designation of critical habitat for the 

species. In other words, the incremental 

costs are those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur with the designation of critical 

habitat. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The FEA measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the 

designation might unduly burden a 

particular group or economic sector. 

Finally, the FEA looks retrospectively at 

costs that have been incurred since 

2001, when the vermilion darter was 

listed under the Act (66 FR 59367), and 

considers those costs that may occur in 

the 25 years following the designation of 

critical habitat, which was determined 

to be the appropriate period for analysis 

because limited planning information 

was available for most activities to 

forecast activity levels for projects 

beyond a 25-year timeframe. The FEA 

quantifies economic impacts of 

vermilion darter conservation efforts 

associated with the following categories 

of activity: Water management, 

activities that impact water quality, 

dredging activities and other impacts 

(e.g., bridge replacement, management 

plans, and natural gas pipelines). 

Total baseline impacts (costs 

attributable to listing alone) are 

estimated to be $550,000 annually over 

the next 25 years, assuming a 7 percent 

discount rate, and the total incremental 

costs (costs attributable to designation 

alone) associated with this rule are 

estimated to be $39.24 annually over the 

next 25 years, assuming a 7 percent 

discount rate (RTI International 2010b). 

The critical habitat designation will 

result in minimal incremental costs 

because any adverse modification 

decision would likely be coincident to 

a jeopardy determination for the same 

action due to the species’ narrow range. 

Therefore, the only incremental costs 

are those resulting from the additional 

administrative costs by the Service and 

the action agency to include an adverse 

modification finding within the 

biological opinion and biological 

assessment as part of a formal 

consultation. 

Our economic analysis did not 

identify any disproportionate costs that 

are likely to result from the designation. 

Consequently, we have determined not 

to exert our discretion to exclude any 

areas from this designation of critical 

habitat for the vermilion darter based on 

economic impacts. A copy of the FEA 

with supporting documents may be 

obtained by contacting the Mississippi 

Fish and Wildlife Field Office (see 

ADDRESSES) or by downloading from the 

Internet at http://www.regulations.gov. 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75925 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense where a national security 

impact might exist. In preparing this 

final rule, we have determined that the 

lands within the designation of critical 

habitat for the vermilion darter are not 

owned or managed by the Department of 

Defense, and, therefore, we anticipate 

no impact to national security. 

Consequently, we have determined not 

to exert our discretion to exclude any 

areas from this final designation based 

on impacts to national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether landowners have developed 

any HCPs or other management plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion of lands from, critical habitat. 

In addition, we look at any tribal issues, 

and consider the government-togovernment relationship of the United 

States with tribal entities. We also 

consider any social impacts that might 

occur because of the designation. 

In preparing this final rule, we have 

determined that there are currently no 

completed HCPs or other management 

plans for the species, and the final 

designation does not include any tribal 

lands or trust resources. We anticipate 

no impact to tribal lands, partnerships, 

or management plans from this final 

critical habitat designation. 

Consequently, we are not considering 

any areas for exclusion from this final 

designation based on other relevant 

impacts. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under Executive Order 

12866. OMB bases its determination 

upon the following four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

publish a notice of rulemaking for any 

final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. In 

this final rule, we are certifying that the 

critical habitat designation for the 

vermilion darter will not have a 

significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’ 

or ‘‘significant economic impact.’’ 

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities authorized, funded, or 

carried out by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

authorize, fund, or carry out that may 

affect the vermilion darter. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities (see Application of the 

‘‘Adverse Modification Standard’’ 

section). 

In our final economic analysis of the 

proposed critical habitat designation, 

we evaluated the potential economic 

effects on small business entities 

resulting from conservation actions 

related to the listing of the vermilion 

darter and the proposed designation of 

critical habitat (see Section 6 in RTI 

International 2010b). The analysis is 

based on the estimated impacts 

associated with the rulemaking as 

described in sections 2 through 4 of the 

analysis, and evaluated the potential 

economic impacts related to future 

development, road construction, 

wastewater treatment, stream alteration, 

and water withdrawal. 


srobinson on DSKHWCL6B1PROD with RULES
75926 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

According to the FEA, the Service and 

action agency are the only entities with 

direct compliance costs expected to be 

assessed with the critical habitat 

designation. Thus, based on the above 

reasoning and currently available 

information, we concluded that this rule 

would not result in a significant 

economic impact on a substantial 

number of small entities. Therefore, we 

are certifying that the designation of 

critical habitat for the vermilion darter 

will not have a significant economic 

impact on a substantial number of small 

entities, and a regulatory flexibility 

analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. We 

do not expect this rule to significantly 

affect energy supplies, distribution, or 

use. Although two of the final units are 

below hydropower reservoirs, current 

and proposed operating regimes have 

been deemed adequate for the species, 

and therefore their operations will not 

be affected by the final designation of 

critical habitat. All other final units are 

remote from energy supply, distribution, 

or use activities. Therefore, this action 

is not a significant energy action, and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

jeopardize the continued existence of 

the species, or destroy or adversely 

modify critical habitat under section 7 

of the Act. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

listing these species or designating 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments and, as such, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with Executive Order 

12630 (Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the vermilion darter in a 

takings implications assessment. The 

takings implications assessment 

concludes that this designation of 

critical habitat for the vermilion darter 

does not pose significant takings 

implications. 

Federalism—Executive Order 13132 

In accordance with Executive Order 

13132 (Federalism), the rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of this 

critical habitat designation with 

appropriate State resource agencies in 

Alabama. The critical habitat 

designation may have some benefit to 

this government in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the 

regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of the Order. We are designating 

critical habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

the vermilion darter within the 

designated areas to assist the public in 

understanding the habitat needs of the 

species. 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75927 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

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

This rule will not impose recordkeeping 

or reporting requirements on State or 

local governments, individuals, 

businesses, or organizations. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination With Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

tribal lands occupied by the vermilion 

darter at the time of listing that contain 

the features essential for the 

conservation of the species, and no 

tribal lands that are unoccupied by the 

vermilion darter that are essential for 

the conservation of the species. 

Therefore, we have not designated 

critical habitat for the vermilion darter 

on tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http://www.regulations.gov 

and upon request from the Field 

Supervisor, Mississippi Fish and 

Wildlife Office (see FOR FURTHER

INFORMATION CONTACT section). 

Author(s) 

The primary authors of this package 

are staff members of the Mississippi 

Fish and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

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—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Darter, vermilion’’ under FISHES in the 

List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

*******

FISHES

* * * * * * * 

Darter, vermilion ...... Etheostoma 

chermocki.

U.S.A. (AL) ............. Entire ...................... E 715 17.95(e) NA 

* * * * * * * 

■ 3. In § 17.95(e), add an entry for 

‘‘Vermilion Darter (Etheostoma 

chermocki),’’ in the same alphabetical 

order as the species appears in the table 

at § 17.11(h), to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Vermilion Darter (Etheostoma 

chermocki) 

(1) Critical habitat units are depicted 

for Jefferson County, Alabama, on the 

map below. 

(2) Within these areas, the primary 

constituent elements of the physical and 

biological features essential to the 

conservation of the vermilion darter 

consist of four components: 

(i) Geomorphically stable stream 

bottoms and banks (stable horizontal 

dimension and vertical profile) in order 

to maintain bottom features (riffles, 

runs, and pools) and transition zones 

between bottom features, to promote 

connectivity between spawning, 

foraging, and resting sites, and to 

maintain gene flow throughout the 

species range. 

(ii) Instream flow regime with an 

average daily discharge over 50 cubic 

feet per second, inclusive of both 

surface runoff and groundwater sources 

(springs and seepages) and exclusive of 

flushing flows. 

(iii) Water quality with temperature 

not exceeding 26.7 °C (80 °F), dissolved 

oxygen 6.0 milligrams or greater per 


srobinson on DSKHWCL6B1PROD with RULES
75928 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

liter, turbidity of an average monthly 

reading of 10 NTU and 15mg/l TSS 

(Nephelometric Turbidity Units; units 

used to measure sediment discharge; 

Total Suspended Solids measured as 

mg/l of sediment in water) or less; and 

a specific conductance (ability of water 

to conduct an electric current, based on 

dissolved solids in the water) of no 

greater than 225 micro Siemens per 

centimeter at 26.7 °C (80 °F). 

(iv) Stable bottom substrates 

consisting of fine gravel with coarse 

gravel or cobble, or bedrock with sand 

and gravel, with low amounts of fine 

sand and sediments within the 

interstitial spaces of the substrates along 

with adequate aquatic vegetation. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

bridges, aqueducts, airports, and roads, 

and the land on which such structures 

are located. 

(4) Critical habitat unit map. The map 

was developed from USGS 7.5′ 

quadrangles. Critical habitat unit 

upstream and downstream limits were 

then identified by longitude and 

latitude using decimal degrees. 

(5) Note: Index map of critical habitat 

units for the vermilion darter follows: 

BILLING CODE 4310–55–P 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75929 

BILLING CODE 4310–55–C 

(6) Unit 1: Turkey Creek, Jefferson 

County, Alabama. 

(i) Unit 1 includes the channel in 

Turkey Creek from Shadow Lake Dam 

(086°38′22.50′′ W long., 033°40′44.78′′ N 

lat.) downstream to the Section 13/14 

(T15S, R2W) line (086°42′31.81′′ W 

long., 033°43′23.61′′ N lat.). 

(ii) Map of Unit 1 is provided at 

paragraph (10)(ii) of this entry. 


srobinson on DSKHWCL6B1PROD with RULESER07DE10.005</GPH>
75930 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

(7) Unit 2: Dry Branch, Jefferson 

County, Alabama. 

(i) Unit 2 includes the channel in Dry 

Branch from the bridge at Glenbrook 

Road (086°41′6.05′′ W long., 

033°41′10.65′′ N lat) downstream to the 

confluence with Beaver Creek 

(86°41′17.39′′ W long., 033°41′26.94′′ N 

lat.). 

(ii) Map of Unit 2 is provided at 

paragraph (10)(ii) of this entry. 

(8) Unit 3: Beaver Creek, Jefferson 

County, Alabama. 

(i) Unit 3 includes the channel of 

Beaver Creek from the confluence with 

the unnamed tributary to Beaver Creek 

and Dry Branch (086°41′17.54′′ W long., 

033°41′26.94′′ N lat.) downstream to its 

confluence with Turkey Creek 

(086°41′9.16′′ W long., 033°41′55.86 N 

lat.). 

(ii) Map of Unit 3 is provided at 

paragraph (10)(ii) of this entry. 

(9) Unit 4: Dry Creek, Jefferson 

County, Alabama. 

(i) Unit 4 includes the channel of Dry 

Creek, from Innsbrook Road 

(086°39′53.78′′ W long., 033°42′19.11′′ N 

lat) downstream to the confluence with 

Turkey Creek (086°40′3.72′′ W long., 

033°42′1.39′′ N lat). 

(ii) Map of Unit 4 is provided at 

paragraph (10)(ii) of this entry. 

(10) Unit 5: Unnamed Tributary to 

Beaver Creek, Jefferson County, 

Alabama. 

(i) Unit 5 includes the channel of the 

Unnamed Tributary from its confluence 

with Beaver Creek (086°41′17.54′′ W 

long., 033°41′26.94′′ N lat.), upstream to 

the 1/2(T16S, R2W) section line 

(086°42′31.70′′ W long., 033°39′54.15′′ N 

lat.) 

(ii) Map of Units 1, 2, 3, 4, and 5 (Map 

2) follows: 


srobinson on DSKHWCL6B1PROD with RULESER07DE10.006</GPH>
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 75931 

* * * * * Dated: November 26, 2010. 

Jane Lyder, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2010–30420 Filed 12–6–10; 8:45 am] 

BILLING CODE 4310–55–C 


srobinson on DSKHWCL6B1PROD with RULES