36678 Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Proposed Rules 

93.101, 93.118, and 93.124). An MVEB 

is defined as ‘‘that portion of the total 

allowable emissions defined in the 

submitted or approved control strategy 

implementation plan revision or 

maintenance plan for a certain date for 

the purpose of meeting reasonable 

further progress milestones or 

demonstrating attainment or 

maintenance of the NAAQS, for any 

criteria pollutant or its precursors, 

allocated to highway and transit vehicle 

use and emissions (40 CFR 93.101).’’ 

Under the conformity rule, LMP areas 

may demonstrate conformity without a 

regional emission analysis (40 CFR 

93.109(e)). However, because LMP areas 

are still maintenance areas, certain 

aspects of transportation conformity 

determinations still will be required for 

transportation plans, programs, and 

projects. Specifically, for such 

determination, RTPs, TIPs, and 

transportation projects still will have to 

demonstrate that they are fiscally 

constrained (40 CFR 93.108), meet the 

criteria for consultation (40 CFR 93.105 

and 93.112) and transportation control 

measure implementation in the 

conformity rule provisions (40 CFR 

93.113). Additionally, conformity 

determinations for RTPs and TIPs must 

be determined no less frequently than 

every four years, and conformity of plan 

and TIP amendments and transportation 

projects is demonstrated in accordance 

with the timing requirements specified 

in 40 CFR 93.104. In addition, for 

projects to be approved, they must come 

from a currently conforming RTP and 

TIP (40 CFR 93.114 and 93.115). The 

Greene County Area remains under the 

obligation to meet the applicable 

conformity requirements for the 1997 

ozone NAAQS. 

III. Proposed Action 

EPA’s review of PADEP’s February 25, 

2020 submittal indicates that it meets all 

applicable CAA requirements, 

specifically the requirements of section 

175A. EPA is proposing to approve the 

second maintenance plan for the Greene 

County Area as a revision to the 

Pennsylvania SIP. EPA is soliciting 

public comments on the issues 

discussed in this document. These 

comments will be considered before 

taking final action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions 

EPA’s role is to approve state choices if 

they meet the criteria of the CAA. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 

rulemaking, proposing approval of 

Pennsylvania’s second maintenance 

plan for the Greene County Area, does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

Dated: July 7, 2021. 

Diana Esher, 

Acting Regional Administrator, Region III. 

[FR Doc. 2021–14853 Filed 7–12–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2020–0062; 

FF09E21000 FXES11110900000 212] 

RIN 1018–BE55 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Pearl Darter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the pearl 

darter (Percina aurora) under the 

Endangered Species Act of 1973 (Act), 

as amended. In total, approximately 517 

river miles (832 river kilometers) in 

Clarke, Covington, Forrest, George, 

Greene, Lauderdale, Jackson, Jones, 

Newton, Perry, Simpson, Stone, and 

Wayne Counties, Mississippi, fall 

within the boundaries of the proposed 

critical habitat designation. If we 

finalize this rule as proposed, it would 

extend the Act’s protections to this 

species’ critical habitat. We also 

announce the availability of a draft 

economic analysis of the proposed 

designation. 

DATES: We will accept comments on the 

proposed rule or draft economic 

analysis that are received or postmarked 

on or before September 13, 2021. 

Comments submitted electronically 

using the Federal eRulemaking Portal 

(see ADDRESSES, below) must be 

received by 11:59 p.m. Eastern Time on 

the closing date. We must receive 

requests for public hearings, in writing, 

at the address shown in FOR FURTHER

INFORMATION CONTACT by August 27, 

2021. 

ADDRESSES: You may submit comments 

on the proposed rule or draft economic 

analysis by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2020–0062, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 


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the left side of the screen, under the 

Document Type heading, check the 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R4–ES–2020–0062, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Document availability: The draft 

economic analysis is available at http:// 

www.fws.gov/mississippiES/, at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2020–0062. 

The coordinates or plot points or both 

from which the maps are generated are 

included in the administrative record 

for this critical habitat designation and 

are available at http://www.fws.gov/ 

mississippiES/, at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2020–0062. Any 

additional tools or supporting 

information that we may develop for 

this critical habitat designation will also 

be available at the Service website and 

Field Office set out above, and may also 

be included in the preamble and/or at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ricks, Field Supervisor, U.S. 

Fish and Wildlife Service, Mississippi 

Ecological Services Field Office, 6578 

Dogwood View Parkway, Jackson, MS 

39213; telephone 601–321–1122. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. To the 

maximum extent prudent and 

determinable, we must designate critical 

habitat for any species that we 

determine to be an endangered or 

threatened species under the Act. 

Designations of critical habitat can only 

be completed by issuing a rule. 

What this document does. This 

document proposes to designate critical 

habitat for the pearl darter in the 

Pascagoula River and Pearl River basins 

in Mississippi. We listed the pearl 

darter as a threatened species under the 

Act on September 20, 2017 (82 FR 

43885). 

The basis for our action. Section 

4(a)(3) of the Act requires the Secretary 

of the Interior (Secretary) to designate 

critical habitat to the maximum extent 

prudent and determinable for species 

listed as endangered or threatened 

species. Section 3(5)(A) of the Act 

defines critical habitat as (i) the specific 

areas within the geographical area 

occupied by the species, at the time it 

is listed, on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species. Section 

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

Secretary must make the designation on 

the basis of the best available scientific 

data after taking into consideration the 

economic impact, the impact on 

national security, and any other relevant 

impacts of specifying any particular area 

as critical habitat. 

Economic impacts. In accordance 

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

prepared an analysis of the economic 

impacts of the proposed critical habitat 

designation. In this document, we 

announce the availability of the draft 

economic analysis for public review and 

comment. 

Peer review. In accordance with our 

joint policy on peer review published in 

the Federal Register on July 1, 1994 (59 

FR 34270), and our August 22, 2016, 

memorandum updating and clarifying 

the role of peer review of listing actions 

under the Act, we will seek peer review 

of this proposed rule. We are seeking 

comments from independent specialists 

to ensure that our critical habitat 

proposal is based on scientifically 

sound data and analyses. We have 

invited these peer reviewers to comment 

on our specific assumptions and 

conclusions in this critical habitat 

proposal during the public comment 

period for this proposed rule (see DATES, 

above). 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

government agencies, Native American 

tribes, the scientific community, 

industry, or any other interested party 

concerning this proposed rule. We 

particularly seek comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including 

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may not be prudent: 

(a) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(b) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(c) Areas within the jurisdiction of the 

United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; or 

(d) No areas meet the definition of 

critical habitat. 

(2) Specific information on: 

(a) The amount and distribution of the 

pearl darter’s habitat; 

(b) What areas that were occupied at 

the time of listing and that contain the 

physical or biological features essential 

to the conservation of the species 

should be included in the designation 

and why; 

(c) Any additional areas occurring 

within the range of the species, i.e., 

rivers and streams within the Pearl 

River and Pascagoula River drainages in 

Mississippi and Louisiana, that should 

be included in the designation because 

they (1) are occupied at the time of 

listing and contain the physical or 

biological features that are essential to 

the conservation of the species and that 

may require special management 

considerations, or (2) are unoccupied at 

the time of listing and are essential for 

the conservation of the species; 

(d) Special management 

considerations or protection that may be 

needed in occupied critical habitat areas 

we are proposing, including managing 

for the potential effects of climate 

change; and 

(e) What areas not occupied at the 

time of listing are essential for the 

conservation of the species. We 

particularly seek comments: 

(i) Regarding whether occupied areas 

are inadequate for the conservation of 

the species; 

(ii) Providing specific information 

regarding whether or not unoccupied 

areas would, with reasonable certainty, 

contribute to the conservation of the 

species and contain at least one physical 


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or biological feature essential to the 

conservation of the species; 

(iii) Explaining whether or not 

unoccupied areas fall within the 

definition of ‘‘habitat’’ at 50 CFR 424.02 

and why. 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(4) Information on the projected and 

reasonably likely impacts of climate 

change on the pearl darter and proposed 

critical habitat. 

(5) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the benefits of including or excluding 

areas that may be impacted. 

(6) Information on the extent to which 

the description of probable economic 

impacts in the draft economic analysis 

is a reasonable estimate of those 

impacts. 

(7) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act. For 

any additional areas that you may 

request be excluded from the 

designation, we will undertake an 

exclusion analysis if you provide 

credible information regarding the 

existence of a meaningful economic or 

other relevant impact supporting a 

benefit of inclusion or if we otherwise 

decide to exercise the discretion to 

evaluate the areas for possible 

exclusion. 

(8) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

critical habitat designation may differ 

from this proposal. Based on the new 

information we receive (and any 

comments on that new information), we 

may conclude that some additional 

areas meet the definition of critical 

habitat, and some areas proposed as 

critical habitat may not meet the 

definition of critical habitat. In addition, 

we may find that the benefit of 

excluding some areas outweigh the 

benefits of including those areas 

pursuant to section 4(b)(2) of the Act, 

and we may exclude them from the final 

designation unless we determine that 

exclusion would result in extinction of 

the pearl darter. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

Please refer to the final listing rule for 

the pearl darter, which published in the 

Federal Register on September 20, 2017 

(82 FR 43885), for a detailed description 

of previous Federal actions concerning 

this species. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat’’ as 

follows: ‘‘For the purposes of 

designating critical habitat only, habitat 

is the abiotic and biotic setting that 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of a 

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 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Designation also does 

not allow the government or public to 

access private lands. Designation does 

not require implementation of 


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restoration, recovery, or enhancement 

measures by non-Federal landowners. 

Where a landowner requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the Federal agency 

would be required to consult with the 

Service under section 7(a)(2) of the Act. 

However, even if the Service were to 

conclude that the proposed activity 

would result in destruction or adverse 

modification of the critical habitat, the 

Federal action agency and the 

landowner are not required to abandon 

the proposed activity, or to restore or 

recover the species; instead, they must 

implement ‘‘reasonable and prudent 

alternatives’’ to avoid destruction or 

adverse modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, those physical or 

biological features that are essential to 

the conservation of the species (such as 

space, food, cover, and protected 

habitat). In identifying those physical or 

biological features that occur in specific 

occupied areas, we focus on the specific 

features that are essential to support the 

life-history needs of the species, 

including, but not limited to, water 

characteristics, soil type, geological 

features, sites, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. When designating critical 

habitat, the Secretary will first evaluate 

areas occupied by the species. The 

Secretary will only consider unoccupied 

areas to be essential where a critical 

habitat designation limited to 

geographical areas occupied by the 

species would be inadequate to ensure 

the conservation of the species. In 

addition, for an unoccupied area to be 

considered essential, the Secretary must 

determine that there is a reasonable 

certainty both that the area will 

contribute to the conservation of the 

species and that the area contains one 

or more of those physical or biological 

features essential to the conservation of 

the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

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

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act, (2) 

regulatory protections afforded by the 

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

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species, and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of 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. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

regulations (50 CFR 424.12(a)(1)) state 

that the Secretary may, but is not 

required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) The Secretary otherwise 

determines that designation of critical 

habitat would not be prudent based on 

the best scientific data available. 

No imminent threat of take attributed 

to collection or vandalism under Factor 

B was identified in the final listing rule 

for the pearl darter, and identification 

and mapping of critical habitat is not 


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expected to initiate any such threat. In 

our final listing determination for the 

pearl darter, we determined that the 

present or threatened destruction, 

modification, or curtailment of habitat 

or range is a threat to this species and 

that those threats in some way can be 

addressed by section 7(a)(2) 

consultation measures. The species 

occurs wholly in the jurisdiction of the 

United States, and we are able to 

identify areas that meet the definition of 

critical habitat. Therefore, because none 

of the circumstances set forth in our 

regulations at 50 CFR 424.12(a)(1) has 

been met and because there are no other 

circumstances the Secretary has 

identified for which this designation of 

critical habitat would be not prudent, 

we have determined that the 

designation of critical habitat is prudent 

for the pearl darter. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the pearl darter is determinable. Our 

regulations at 50 CFR 424.12(a)(2) state 

that critical habitat is not determinable 

when one or both of the following 

situations exist: 

(i) Data sufficient to perform required 

analyses are lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

When we published the proposed 

listing rule (81 FR 64857; September 21, 

2016) and then the final listing rule (82 

FR 43885; September 20, 2017) for the 

pearl darter, a careful assessment of the 

economic impacts of an associated 

critical habitat designation was 

incomplete, leading us to find that 

critical habitat was not determinable. 

We continued to review the available 

information related to the draft 

economic analysis, as well as newly 

acquired biological information 

necessary to perform this assessment. 

This and other information represent 

the best scientific data available, and we 

now find the data are sufficient for us 

to analyze the impacts of critical habitat 

designation. Accordingly, we conclude 

that the designation of critical habitat is 

determinable for the pearl darter. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 define 

‘‘physical or biological features essential 

to the conservation of the species’’ as 

the features that occur in specific areas 

and that are essential to support the lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkaline soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or a particular level of 

nonnative species consistent with 

conservation needs of the listed species. 

The features may also be combinations 

of habitat characteristics and may 

encompass the relationship between 

characteristics or the necessary amount 

of a characteristic essential to support 

the life history of the species. 

In considering whether features are 

essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. These 

characteristics include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

Habitats Representative of the 

Historical, Geographical, and Ecological 

Distributions of the Species 

The pearl darter is historically known 

from rivers and streams within the Pearl 

River and Pascagoula River drainages in 

Mississippi and Louisiana, and the 

species was described from the lower 

Strong River within the Pearl River 

drainage of Mississippi (Suttkus et al. 

1994, pp. 15–20). The darter has been 

extirpated from the Pearl River drainage 

for several decades, apparently due to 

system-wide channel and water quality 

degradation occurring in the late 1960s 

to early 1970s (Wagner et al. 2017, 

entire). With this extirpation, at least 

half of the historical, geographical, and 

ecological habitats of the pearl darter are 

no longer occupied. Channel integrity 

and water quality within the Pearl River 

drainage has since improved due to the 

enactment of State and Federal laws and 

regulations addressing water pollution 

and in-channel sand and gravel mining. 

In the lower Strong River, channel 

integrity is controlled and protected by 

natural bedrock outcrops, and water 

quality has improved, as indicated by 

the resurgence of other benthic fish 

species that historically co-occurred 

with the pearl darter (Piller et al. 2004, 

pp. 1007–1011; Tipton et al. 2004, pp. 

57–60; Wagner et al. 2018, entire). 

Within the Pascagoula River drainage, 

the pearl darter occurs within the 

Pascagoula, Chickasawhay, Leaf, 

Chunky, and Bouie Rivers and the 

Okatoma and Black Creeks (Wagner et 

al. 2017, pp. 3–10, 12; Clark et al. 2018, 

pp. 100–103; Schaefer et al. 2020, pp. 

26–27, 43–44). 

The lower Strong River within the 

Pearl River drainage and the rivers and 

streams identified above within the 

Pascagoula River drainage are 

representative of the historical, 

geographical, and ecological 

distribution of the species. 

Space for Individual and Population 

Growth and for Normal Behavior 

The pearl darter is found in freeflowing, low-gradient streams and rivers 

with pools and scour holes associated 

with channel bends and runs (Slack et 

al. 2002, p. 10; Bart et al. 2001, p. 13). 

Presence of the darter is associated with 

coarse sand and gravel substrates and 

woody debris, which also supplies 

habitats for its prey. Other bottom 

substrates associated with the species 

include sand, silt, loose clay, and gravel, 

with organic matter in the form of 

coarse and fine particulates and snag 

material (Slack et al. 2005, pp. 9, 11). 

Pearl darter occurrence within these 

habitats may be seasonal, with 

spawning occurring in upstream 

reaches, and growth and recruitment in 

downstream reaches (Bart et al. 2001, 

pp. 13, 15). Therefore, a continuum of 

perennial, uninterrupted, and 

interconnected natural small stream-toriver channel habitat is required for the 


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downstream drift of larvae or movement 

of juveniles, and the upstream migration 

of spawning adults. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

The pearl darter requires unimpeded 

and interconnected stretches of 

perennial and flowing streams and 

rivers with adequate water quality. 

Water temperatures at pearl darter 

collection sites has ranged from 8 to 30 

degrees Celsius (°C) (46.4 to 86.0 

degrees Fahrenheit (°F)) (Suttkus et al. 

1994, pp. 17–19; Bart et al. 2001, p. 13, 

Slack et al. 2002, p. 10), with dissolved 

oxygen of 5.8 to 9.3 milligrams per liter 

(mg/1) (Suttkus et al. 1994, pp. 17–19; 

Bart et al. 2001, pp. 7, 13–14; Slack et 

al. 2002, p. 10). The species is 

apparently sensitive to warmer water 

temperatures and may seasonally 

require tributaries with canopy shading 

and/or cool spring flows as seasonal 

refugia from warmer, unshaded river 

channels (Bart et al. 2001, p. 14). 

The natural diet of the pearl darter is 

poorly known; however, other species 

within the genus feed on chironomids 

(midges), small crustaceans, mayflies, 

and caddisflies (Kuehne and Barbour 

1983, p. 49). Food availability is likely 

affected by adequate flow, channel 

stability, and water quality. Pearl darters 

have been maintained in captivity for at 

least 2 years on a diet of bloodworms 

(Campbell 2019, p. 1). 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

Pearl darters have been collected at 

sites with cool to warm water 

temperatures (8 to 30 °C (46.4 to 

86.0 °F)), high dissolved oxygen (5.8 to 

9.3 mg/l), slightly acidic to basic pH 

values (6.3 to 7.6), and apparently low 

levels of pollution (Suttkus et al. 1994, 

pp. 17–19; Bart et al. 2001, pp. 7, 13– 

14; Slack et al. 2002, p. 10). Spawning 

in the Strong River was associated with 

bedrock and broken rubble (Suttkus et 

al. 1994, p. 19), and three probable 

spawning sites in the Pascagoula River 

system were characterized by extensive 

outcrops of limestone or sandstone (Bart 

and Pillar 1997, p. 8). Pearl darters in 

spawning condition in the Pascagoula 

River drainage have also been collected 

over firm gravel in relatively shallow, 

flowing water from April to early May 

(Bart et al. 2001, p. 13). Ideal conditions 

for spawning have been described as 

channel reaches with good canopy 

shading, an extensive buffer of mature 

forest, and good water quality (Bart et al. 

2001, p. 15). 

Spawning in the Pearl and Strong 

Rivers (Mississippi) was documented 

during March through May (Suttkus et 

al. 1994, pp. 19–20), and young of year 

were collected in June (Suttkus et al. 

1994, p. 19). Based on collection 

occurrence patterns, some researchers 

have postulated that adult pearl darters 

migrate upstream during the fall and 

winter to spawn in suitable upstream 

gravel reaches, with elevated river 

discharge during the spring dispersing 

the larvae and juveniles into 

downstream reaches (Bart et al. 2001, p. 

14; Ross et al. 2000, p. 11). Other studies 

have hypothesized that the species 

disperses locally from shallow 

spawning habitats into nearby deeper 

habitats where their presence is more 

difficult to detect (Slack et al. 2002, p. 

18). The pattern of the disappearance of 

the pearl darter from all stream orders 

in the Pearl River drainage over a 

relatively short period of time suggests 

that some degree of seasonal 

interchange between tributary and river 

channel subpopulations may have been 

a factor in the species’ extirpation from 

that drainage. Therefore, until more is 

known relative to seasonal dispersal, 

connectivity between instream habitats 

should be considered essential for 

successful breeding and rearing of the 

pearl darter. 

Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential to the 

conservation of the pearl darter from 

studies of this species’ habitat, ecology, 

and life history. Additional information 

can be found in the September 21, 2016, 

proposed listing rule (81 FR 64857) and 

the September 20, 2017, final listing 

rule (82 FR 43885). We have determined 

that the following physical or biological 

features are essential to the conservation 

of the pearl darter: 

(1) Unobstructed and stable stream 

and river channels with: 

(a) Connected sequences of channel 

runs and bends associated with pools 

and scour holes; and 

(b) Bottom substrates consisting of 

fine and coarse sand, gravel, bedrock, 

silt, clay, organic matter, or woody 

debris. 

(2) A natural flow regime necessary to 

maintain instream habitats and their 

connectivity. 

(3) Water quality conditions, 

including cool to warm water 

temperatures (8 to 30 °C (46.4 to 

86.0 °F)), high dissolved oxygen (5.8 to 

9.3 mg/l), slightly acidic to basic pH (6.3 

to 7.6), and low levels of pollutants and 

nutrients meeting the current State of 

Mississippi criteria, as necessary to 

maintain natural physiological 

processes for normal behavior, growth, 

and viability of all life stages of the 

species. 

(4) Presence of a prey base of small 

aquatic macroinvertebrates, including 

midges, crustaceans, mayflies, 

caddisflies, and zooplankton. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The pearl 

darter is threatened by water quality 

degradation from point and nonpoint 

source pollution, discharges from 

municipalities, and geomorphological 

changes to its channel habitats (82 FR 

43885, September 20, 2017, pp. 43888– 

43893). The features essential to the 

conservation of this species may require 

special management considerations or 

protection to reduce the following 

threats: (1) Actions that alter the 

minimum or existing flow regime, 

including impoundment, 

channelization, or water diversion; (2) 

actions that significantly alter water 

chemistry or temperature by the release 

of chemicals, biological pollutants, or 

heated effluents into the surface water 

or connected groundwater at a point or 

non-point source; and (3) actions that 

significantly alter channel morphology 

or geometry, including channelization, 

impoundment, road and bridge 

construction, or instream mining. 

Examples of special management 

actions that would minimize or 

ameliorate these threats include: (a) 

Restoration and protection of riparian 

corridors; (b) implementation of best 

management practices to minimize 

erosion (such as State and industry 

practices for road construction, forest 

management, or mining activities); (c) 

stream bank restoration projects; (d) 

private landowner programs to promote 

watershed and soil conservation (such 

as the U.S. Department of Agriculture’s 

Farm Bill and the Service’s Private 

Lands programs); (e) implementation of 

best management practices for storm 

water; and (f) upgrades to industrial and 

municipal treatment facilities to 

improve water quality in effluents. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 


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information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species at the time of listing to be 

considered for designation as critical 

habitat. 

The current distribution of the pearl 

darter is reduced from its historical 

distribution, and we anticipate that 

recovery will require continued 

protection of the existing population 

and habitat, as well as establishing a 

population within its historical range, to 

ensure there are adequate numbers of 

pearl darters occurring in stable 

populations for the species’ continued 

conservation. Furthermore, rangewide 

recovery considerations, such as 

maintaining existing genetic diversity 

and striving for representation of all 

major portions of the species’ historical 

range, were considered in formulating 

this proposed critical habitat 

designation. 

We are proposing to designate critical 

habitat in areas within the geographical 

area occupied by the species at the time 

of listing. We identified areas with 

current occurrence records that we 

deemed suitable habitat (see delineation 

steps, below) and that had one or more 

of the physical or biological features 

identified for the pearl darter which 

may require special management 

considerations or protection. We also 

are proposing to designate specific areas 

outside of the geographical area 

occupied by the species at the time of 

listing because we have determined that 

a designation limited to occupied areas 

would be inadequate to ensure the 

conservation of the species. For those 

unoccupied areas, we have determined 

that it is reasonably certain that the 

unoccupied areas will contribute to the 

conservation of the species and contain 

one or more of the physical or biological 

features that are essential to the 

conservation of the species. We have 

also determined that the unoccupied 

areas fall within the regulatory 

definition of ‘‘habitat’’ at 50 CFR 424.02. 

Threats to pearl darters occurring in 

the Pascagoula River drainage are 

compounded by the species’ naturally 

low numbers and short life span, but the 

species’ conservation potential is 

primarily limited by its extirpation from 

the Pearl River drainage and, therefore, 

its lack of redundancy. The documented 

Pearl River drainage extirpation was 

rapid and system-wide, including all 

mainstem and tributary collection sites 

seemingly simultaneously. As such, we 

consider pearl darters occurring within 

the Pascagoula River and its tributaries 

as a single population. The loss of the 

species’ redundancy, with its 

extirpation from the Pearl River 

drainage, has also diminished its genetic 

and ecological representation, and, 

therefore, increased the species’ 

vulnerability to catastrophic events and 

population changes. A successful 

reintroduction into the Pearl River 

drainage would restore the species’ 

redundancy within the historical range. 

In addition, the pearl darter’s 

representation would increase from 

current levels by allowing for local 

environmental adaptation and 

increasing genetic representation. Thus, 

reintroducing the species into the Pearl 

River drainage would contribute to the 

resilience and conservation of the pearl 

darter. 

Factors implicated in the Pearl River 

extirpation include geomorphic 

instability (i.e., channel erosion and 

degradation), sedimentation, and point 

source pollution from municipalities 

and industries (e.g., Bart and Suttkus 

1995, p. 14; Tipton et al. 2004, pp. 59– 

60). One or all of these factors may have 

been responsible for the diminishment 

or loss of some or all of the physical or 

biological features essential to the 

conservation of the pearl darter within 

the drainage (e.g., channel stability, 

substrate, water quality, prey base). We 

now find that these factors have been 

reduced to a degree that the pearl darter 

may be successfully reintroduced into 

the Pearl River. 

For example, active channel erosion 

and degradation that may have been 

precipitated by the 1956 construction of 

the Pearl River navigation system in the 

lower basin, and aggravated by the 1963 

construction of the Ross Barnett 

Reservoir in the upper basin, have 

diminished, and instream mining is 

now prohibited by the States of 

Mississippi and Louisiana, resulting in 

more stable channel habitats within the 

basin. In addition, point-source 

pollution from untreated municipal and 

industrial discharge into the Pearl River 

has been significantly reduced by 

enactment and enforcement of the Clean 

Water Act of 1972 (33 U.S.C. 1251 et 

seq.). The improvement of the physical 

or biological features within the Pearl 

River drainage is also demonstrated by 

recent observed increases in other 

benthic fish species (e.g., crystal darter 

(Crystallaria asprella) and frecklebelly 

madtom (Noturus munitus)), which 

experienced declines concurrent with 

the extirpation of the pearl darter (Piller 

et al. 2004, pp. 1007–1011; Tipton et al. 

2004, pp. 57–60; Wagner et al. 2018, p. 

13). These improvements leave us 

reasonably certain that all of the 

physical or biological features essential 

to the conservation of the pearl darter 

are now present within the Pearl River 

drainage. Because the Pearl River 

drainage habitat contains the physical or 

biological features for the pearl darter 

and supports other benthic fish species 

with similar life processes, we conclude 

that the drainage contains the resources 

and conditions necessary to support the 

life processes for the pearl darter. 

For this proposed rule, we completed 

the following steps to delineate critical 

habitat: 

(1) We compiled all available current 

and historical occurrence data records 

for the pearl darter in both the 

Pascagoula and Pearl River drainages; 

(2) We used confirmed presence from 

1994–2019 as the foundation for 

identifying areas currently occupied in 

the Pascagoula River drainage; 

(3) We evaluated habitat suitability of 

stream segments that contain the 

identified physical or biological features 

and that are currently occupied by the 

species, and we retained all occupied 

stream segments; 

(4) We evaluated unoccupied 

segments of the Pearl River drainage for 

suitability of spawning and recruitment, 

darter reintroduction, and monitoring 

and management of a reintroduced 

population; and 

(5) We evaluated unoccupied 

segments of the Pearl River drainage for 

connectivity with reaches historically 

occupied and identified areas 

containing the physical or biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. 

Sources of data for this proposed 

critical habitat designation include the 

proposed and final listing rules (81 FR 

64857, September 21, 2016; 82 FR 

43885, September 20, 2017), fish 

collection databases provided by the 

MDWFP, survey reports and 

observations, and peer-reviewed 

publications. 

Areas Occupied at the Time of Listing 

We used reports and collection data to 

map species site collections and 

occurrences between 1994 and 2019 to 

determine areas occupied at the time of 

listing. Based on the best available 

scientific data, we determined that all 

currently known occupied habitat for 

the pearl darter was also occupied by 

the species at the time of listing, and 

that these areas contain the physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection. 

As stated above, we delineated units 

based on documented occurrences and 


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the existing physical or biological 

features essential to the conservation of 

the species. Collection occurrence 

patterns suggest that adult pearl darters 

migrate upstream to spawn in suitable 

gravel or bedrock reaches, with elevated 

spring river discharge dispersing larvae 

and juveniles into downstream reaches; 

an alternative hypothesis considers that 

the pearl darter moves from shallow, 

easily collected spawning habitats into 

deeper habitats where it is more 

difficult to detect the fish (see Sites for 

Breeding, Reproduction, or Rearing (or 

Development) of Offspring, above). 

While both hypotheses are partially 

supported by data, we note that the 

disappearance of the species from the 

Pearl River drainage occurred fairly 

rapidly and simultaneously in all stream 

orders, suggesting some element of 

migration may be involved in the 

darter’s life history. To allow for 

potential seasonal movement between 

stream reaches, we propose to designate 

one continuous unit of occupied critical 

habitat within the Pascagoula River 

drainage. This unit includes portions of 

the Chunky, Bouie, Leaf, Chickasawhay, 

and Pascagoula Rivers, as well as 

reaches of Okatoma and Big Black 

Creeks, as described below under 

Proposed Critical Habitat Designation. 

Since the 2017 listing of the species, 

there have been 71 site collections of 

pearl darter in the Pascagoula River 

drainage (Wagner et al. 2019, pp. 8–18; 

Schaefer et al. 2020, pp. 26–27, 43–44). 

One of these collections in 2018 

extended the known range 

approximately 60 mi (97 km) in Black 

Creek, above its confluence with the 

occupied reach of Big Black Creek 

(Schaefer et al. 2020, pp. 26–27). We 

consider this additional mileage of 

stream reach to be occupied at the time 

of listing. This is because the reach 

between the previously identified 

population in Big Black Creek and the 

newly discovered population upstream 

has the physical or biological features 

essential to the conservation of the 

species, and the species potentially 

seasonally migrates. The potential for 

seasonal migration, the species’ small 

size and rarity, and the fact that surveys 

for the pearl darter are difficult and not 

always definitive of the species’ absence 

within a particular reach of an occupied 

stream also support considering this 

area occupied at the time of listing. 

In making these determinations, we 

recognize that collection sites for the 

pearl darter occur at areas generally 

accessible to fish biologists and that 

occupied habitats within a river reach 

may vary depending upon life stage, 

stream size, and season. Additionally, 

stream habitats are highly dependent 

upon upstream and downstream 

channel habitat conditions for their 

maintenance. Therefore, we considered 

the areas occupied at the time of listing 

to extend from an identifiable landmark 

(e.g., bridge crossing, tributary 

confluence, etc.) nearest the uppermost 

records within second or third order 

streams, through their confluence with 

third and fourth order streams, 

downstream to an identifiable landmark 

near the lowermost areas of collection in 

the Pascagoula River (i.e., forks of the 

East and West Pascagoula River). Within 

the current range of the pearl darter 

within the Pascagoula River drainage, 

some habitats may or may not be 

actively used at all times by individuals; 

however, these areas are necessary for 

maintaining population connectivity, as 

well as other physical or biological 

features essential to the conservation of 

the species, and, therefore, are 

considered the geographic area 

occupied at the time of listing for the 

pearl darter. This area (referred to below 

as proposed Unit 1) contains all of the 

physical or biological features essential 

to the conservation of the pearl darter 

and which may require special 

management conditions or protections. 

Areas Unoccupied at the Time of Listing 

To consider for designation areas not 

occupied by the species at the time of 

listing, we must demonstrate that these 

areas are essential for the conservation 

of the pearl darter. The proposed 

occupied critical habitat does not 

include geographic areas within the 

Pearl River drainage—the only other 

area in which the pearl darter 

historically occurred—as it has been 

extirpated from that drainage. In 

addition, because the Pascagoula River 

drainage population is the only extant 

population, that population provides no 

redundancy for the species. Based upon 

the species’ rapid and system-wide 

extirpation from the Pearl River 

drainage, a series of back-to-back 

stochastic events or a single catastrophic 

event could similarly significantly 

reduce resiliency or extirpate the 

Pascagoula River population. For these 

reasons, we determined we cannot 

conserve the species by designating only 

occupied habitat as it includes only a 

single population in a single drainage. 

Thus, we determined that habitat in 

another historical drainage is needed for 

the long-term survival and recovery of 

the species. Therefore, because we 

determined that the one occupied area 

alone is not adequate for the 

conservation of the species, we have 

identified and are proposing for 

designation as critical habitat specific 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential for the 

conservation of the species. We used 

historical occurrence data and the 

physical or biological features described 

earlier to identify unoccupied habitat 

essential for the conservation of the 

pearl darter. 

Based on our review, we determined 

that the lower Strong River, a major 

tributary of the Pearl River, has the 

potential for future reintroduction and 

reoccupation by the pearl darter, 

provided that stressors are managed and 

mitigated. Reestablishing a viable 

population in the Strong River will 

restore the species’ redundancy within 

the historical range and increase the 

species’ ecological representation. The 

specific area encompasses the minimum 

area of the species’ historical range 

within the Pearl River drainage, while 

still providing ecological diversity so 

that the species can evolve and adapt 

over time. This river reach also provides 

the potential for the pearl darter to 

expand its range into other historically 

occupied areas, which currently may be 

or may later become suitable, to ensure 

that the species has an adequate level of 

redundancy within the Pearl River 

drainage and guard against future 

catastrophic events. The lower Strong 

River also represents the stream reach 

within the historical range with the best 

potential for recovery of the species due 

to current conditions, suitability for 

reintroductions, and access for 

monitoring. 

Accordingly, we propose to designate 

one unoccupied unit in the lower Strong 

River within the Pearl River drainage. 

As described below in the individual 

unit descriptions, this unit contains all 

of the physical or biological features 

essential to the conservation of the 

species and is reasonably certain to 

contribute to the conservation of the 

species. 

General Information on the Maps of the 

Proposed Critical Habitat Designation 

The areas proposed as critical habitat 

include only stream channels within the 

ordinary high-water line. There are no 

developed areas within the critical 

habitat boundaries except for 

transportation and pipeline crossings, 

which do not remove the suitability of 

these areas for the pearl darter. When 

determining proposed critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

lack physical or biological features 

necessary for the pearl darter. The scale 

of the maps we prepared under the 

parameters for publication within the 


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Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the maps of this proposed rule have 

been excluded by text in the proposed 

rule and are not proposed for 

designation as critical habitat. 

Therefore, if the critical habitat is 

finalized as proposed, a Federal action 

involving these lands would not trigger 

section 7 consultation with respect to 

critical habitat and the requirement of 

no adverse modification unless the 

specific action would affect the physical 

or biological features in the adjacent 

critical habitat. 

The proposed critical habitat 

designation is defined by the map or 

maps, as modified by any accompanying 

regulatory text, presented at the end of 

this document under Proposed 

Regulation Promulgation. We include 

more detailed information on the 

boundaries of the critical habitat 

designation in our discussion of the 

individual units below. We will make 

the coordinates or plot points or both on 

which each map is based available to 

the public on http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2020–0062 and on our 

internet site http://www.fws.gov/ 

mississippiES/. 

Proposed Critical Habitat Designation 

We are proposing to designate 

approximately 517 mi (832 km) of river 

and stream channels in two units as 

critical habitat for the pearl darter. The 

critical habitat areas we describe below 

constitute our current best assessment of 

areas that meet the definition of critical 

habitat for the pearl darter. The two 

areas we propose as critical habitat are: 

(1) Pascagoula River Unit; and (2) Strong 

River Unit. Ownership of stream 

channel bottoms included in this 

proposed rule are determined by 

riparian land ownership. The table 

below shows the occupancy of the units, 

the riparian land ownership, and 

approximate lengths of the proposed 

critical habitat for the pearl darter. 

TABLE OF PROPOSED CRITICAL HABITAT UNITS FOR PEARL DARTER

[Unit length estimates include only stream channels within the ordinary high-water line] 

Unit Occupancy 

Riparian land ownership 

Total mi 

Federal mi (km) 

(km) 

State mi 

(km) 

County mi 

(km) 

Private mi 

(km) 

1. Pascagoula River ............ Occupied ............................ ** 45 (72) ** 76 (122) ........................ 373 (600) ** 487 (783) 

2. Strong River .................... Unoccupied ........................ ........................ ........................ 0.4 (0.6) 30 (48.4) 30 (49) 

Total km (mi) ................ ............................................. ** 45 (72) ** 76 (122) 0.4 (0.6) 403 (648.4) ** 517 (832) 

** 7 mi (11 km) of pearl darter critical habitat stream miles shared between State and Federal lands. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for pearl 

darter, below. 

Unit 1: Pascagoula River Unit 

Unit 1 consists of 487 mi (783 km) of 

occupied connected river and stream 

channels within the Pascagoula River 

drainage in Mississippi, including: 

• 63 mi (102 km) of the Pascagoula 

River channel from its confluence with 

the West Pascagoula River in Jackson 

County, upstream to the confluence of 

the Leaf and Chickasawhay Rivers in 

George County; 

• 80 mi (129 km) of Big Black Creek/ 

Black Creek channel from its confluence 

with the Pascagoula River in Jackson 

County, upstream to U.S. Highway 49 

Bridge in Forrest County; 

• 160 mi (257 km) of Chickasawhay 

River channel from its confluence with 

the Leaf River just north of Enterprise, 

Clarke County, upstream to the 

confluence of Okatibbee Creek and 

Chunky River in Clarke County; 

• 21 mi (34 km) of Chunky River 

channel from its confluence with 

Okatibbee Creek in Clarke County, 

upstream to second Highway 80 

Crossing in Newton County; 

• 119 mi (192 km) of Leaf River 

channel from its confluence with the 

Chickasawhay River in George County, 

upstream to the bridge crossing at U.S. 

Highway 84 in Covington County; 

• 15 mi (24 km) of Bouie River 

channel from its confluence with the 

Leaf River, upstream to the confluence 

of Okatoma Creek in Forrest County; 

and 

• 28 mi (45 km) of Okatoma Creek 

from its confluence with the Bouie River 

in Forrest County, upstream to the 

bridge crossing at U.S. Highway 84 in 

Covington County. 

The riparian lands (channel borders) 

in this unit are generally privately 

owned agricultural or silvicultural 

lands, with short reaches owned and 

managed by the U.S. Forest Service or 

the State (see table above). All channel 

segments in Unit 1 are occupied by the 

pearl darter, and the unit contains all 

the physical or biological features 

essential to the conservation of the 

species, including deep pools, runs, and 

bends and scour holes; mixtures of 

bottom substrates of sand, silt, loose 

clay and gravel, fine and coarse particles 

of organic matter, and snag material; a 

natural hydrograph with flows and 

water quality that currently support the 

normal life stages of the pearl darter; 

and the species’ prey sources. 

Special management considerations 

and protections that may be required to 

address threats within the unit include 

minimizing surface water withdrawals 

or other actions that alter stream flow; 

reducing excessive use of manures, 

fertilizers, and pesticides near stream 

channels; improving treatment of 

wastewater discharged from permitted 

facilities; and implementing practices 

that protect or restore riparian buffer 

areas along stream corridors. 

Unit 2: Strong River Unit 

Unit 2 consists of 30 mi (49 km) of 

unoccupied habitat in the Strong River 

channel from its confluence with the 

Pearl River, upstream to U.S. Highway 

49, in Simpson County, Mississippi. 

The riparian lands in this unit are 

generally privately owned agricultural 

or silvicultural lands, with a short 

channel reach (0.39 mi (0.63 km)) 

owned and operated by the Simpson 

County Park Commission (see table 

above). Unit 2 is not within the 

geographic range occupied by the pearl 

darter at the time of listing, but this area 

was historically known to provide 

spawning and recruitment habitat prior 

to the species’ extirpation from the Pearl 

River drainage. This unit currently 

provides all physical or biological 

features essential to the conservation of 

the pearl darter, including a stable 

channel with bottom substrates of sand, 

silt, loose clay and gravel, bedrock, fine 

and coarse particles of organic matter, 

and woody debris; a natural hydrograph 


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with flows and water quality to support 

the normal life stages of the pearl darter 

and the species’ prey sources. Further 

evidence of the presence of physical or 

biological features within this reach of 

the Strong River is demonstrated by 

recent increases in other benthic fish 

species (e.g., frecklebelly madtom) that 

declined concurrent with the 

extirpation of the pearl darter (Piller et 

al. 2004, pp. 1007–1011; Wagner et al. 

2018, pp. 4–5). 

As described above, the best available 

information demonstrates that the pearl 

darter disappeared from the entire Pearl 

River and all known tributary segments 

virtually simultaneously. Therefore, it is 

possible that a series of back-to-back 

stochastic events or a single catastrophic 

event could significantly reduce or 

extirpate the surviving pearl darter 

population within the Pascagoula River 

drainage. Due to the species’ lack of 

redundancy, its naturally small numbers 

within the Pascagoula River drainage, 

and its short life span, the pearl darter 

is more vulnerable to existing and future 

threats, including habitat degradation 

and loss, catastrophic weather events, 

and introduced species. This unit would 

serve to protect habitat needed to 

reestablish a wild population within the 

historical range in the Pearl River 

drainage and recover the species. Reestablishing a population of the pearl 

darter within Unit 2 would also increase 

the species’ redundancy and restore 

ecological representation, better 

ensuring its survival if a stochastic 

event were to impact the Pascagoula 

River population. This unit is essential 

for the conservation of the species 

because it will provide habitat for range 

expansion in known historical habitat 

that is necessary to increase viability of 

the pearl darter by increasing its 

resiliency, redundancy, and 

representation. 

The need for reintroduction of the 

pearl darter into the Pearl River 

drainage has been recognized and is 

being discussed by our conservation 

partners. The landowner of the type 

locality (location where the species was 

described) within the Strong River unit 

has been working with the Service and 

MDWFP to regularly monitor for the 

presence of the pearl darter and other 

benthic fish, and expressed interest in 

reestablishing the species on the 

property. Methods and facilities for 

propagating the species have been 

developed, tested, and proven at a 

Service fish hatchery. Accordingly, we 

are reasonably certain this unit will 

contribute to the conservation of the 

pearl darter. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

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

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final rule revising the 

definition of destruction or adverse 

modification on August 27, 2019 (84 FR 

44976). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

Compliance with the requirements of 

section 7(a)(2), is documented through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species and/or avoid the 

likelihood of destroying or adversely 

modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 set forth 

requirements for Federal agencies to 

reinitiate formal consultation on 

previously reviewed actions. These 

requirements apply when the Federal 

agency has retained discretionary 

involvement or control over the action 

(or the agency’s discretionary 

involvement or control is authorized by 

law) and, subsequent to the previous 

consultation, we have listed a new 

species or designated critical habitat 

that may be affected by the Federal 

action, or the action has been modified 

in a manner that affects the species or 

critical habitat in a way not considered 

in the previous consultation. In such 

situations, Federal agencies sometimes 

may need to request reinitiation of 

consultation with us, but the regulations 

also specify some exceptions to the 

requirement to reinitiate consultation on 

specific land management plans after 

subsequently listing a new species or 

designating new critical habitat. See the 

regulations for a description of those 

exceptions. 

Application of the ‘‘Destruction or 

Adverse Modification’’ Standard 

The key factor related to the 

destruction or adverse modification 

determination is whether 

implementation of the proposed Federal 

action directly or indirectly alters the 

designated critical habitat in a way that 

appreciably diminishes the value of the 

critical habitat as a whole for the 

conservation of the listed species. As 


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discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

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

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

violate section 7(a)(2) of the Act by 

destroying or adversely modifying such 

habitat, or that may be affected by such 

designation. 

Activities that the Services may, 

during a consultation under section 

7(a)(2) of the Act, find are likely to 

destroy or adversely modify critical 

habitat include, but are not limited to: 

(1) Actions that would block or 

disconnect stream and river channels. 

Such activities could include, but are 

not limited to, the construction of dams 

or weirs, channelization, and mining. 

These activities could result in 

destruction of habitat, block movements 

between seasonal habitats, fragment and 

isolate subpopulations within critical 

habitat units, and/or affect flows within 

or into critical habitat. 

(2) Actions that would affect channel 

substrates and stability. Such activities 

include channelization, impoundment, 

mining, road and bridge construction, 

removal of riparian vegetation, and land 

clearing. These activities may lead to 

changes in channel substrates, erosion 

of the streambed and banks, and 

excessive sedimentation that could 

degrade pearl darter habitat. 

(3) Actions that would reduce flow 

levels or alter flow regimes. These could 

include, but are not limited to, activities 

that block or lower surface flow or 

groundwater levels, including 

channelization, impoundment, 

groundwater pumping, and surface 

water withdrawal or diversion. Such 

activities can result in long-term 

changes in stream flows that affect 

habitat quality and quantity for the 

darter and its prey. 

(4) Actions that would affect water 

chemistry or temperature or introduce 

pollutants and nutrients at levels above 

State of Mississippi criteria. Such 

activities include, but are not limited to, 

the release of chemical pollutants, 

biological pollutants, or heated effluents 

into the surface water or connected 

groundwater at a point source or by 

dispersed release (nonpoint source). 

These activities could alter water 

quality conditions to levels that are 

beyond the tolerances of the pearl darter 

or its prey species. 

(5) Actions that would result in the 

introduction, spread, or augmentation of 

nonnative aquatic species in occupied 

stream segments, or in stream segments 

that are hydrologically connected to 

occupied stream segments, even if those 

segments are occasionally intermittent, 

or the introduction of other species that 

compete with or prey on the pearl 

darter. Possible actions could include, 

but are not limited to, stocking of 

nonnative fishes or other related 

actions. These activities can also 

introduce parasites or disease, or affect 

the growth, reproduction, and survival 

of the pearl darter. 

Exemptions 

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

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that the 

Secretary shall not designate as critical 

habitat any lands or other geographic 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act (16 

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

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation. 

There are no DoD lands with a 

completed INRMP within the proposed 

critical habitat designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

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

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if they determine that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless they 

determine, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

We describe below the process that 

we undertook for taking into 

consideration each category of impacts 

and our analyses of the relevant 

impacts. 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. To assess the probable 

economic impacts of a designation, we 

must first evaluate specific land uses or 

activities and projects that may occur in 

the area of the critical habitat. We then 

must evaluate the impacts that a specific 

critical habitat designation may have on 

restricting or modifying specific land 

uses or activities for the benefit of the 

species and its habitat within the areas 

proposed. We then identify which 

conservation efforts may be the result of 

the species being listed under the Act 

versus those attributed solely to the 

designation of critical habitat for this 

particular species. The probable 

economic impact of a proposed 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, which includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat 

(e.g., under the Federal listing as well as 

other Federal, State, and local 

regulations). The baseline, therefore, 

represents the costs of all efforts 

attributable to the listing of the species 

under the Act (i.e., conservation of the 

species and its habitat 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 would 

not be expected without 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 use when evaluating the 

benefits of inclusion and exclusion of 

particular areas from the final 

designation of critical habitat should we 

choose to conduct a discretionary 

4(b)(2) exclusion analysis. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM) considering the 

probable incremental economic impacts 

that may result from this proposed 

designation of critical habitat. The 

information contained in our IEM was 

then used to develop a screening 

analysis of the probable effects of the 

designation of critical habitat for the 


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pearl darter (IEc 2020, entire). We began 

by conducting a screening analysis of 

the proposed designation of critical 

habitat in order to focus our analysis on 

the key factors that are likely to result 

in incremental economic impacts. The 

purpose of the screening analysis is to 

filter out particular geographic areas of 

critical habitat that are already subject 

to such protections and are, therefore, 

unlikely to incur incremental economic 

impacts. In particular, the screening 

analysis considers baseline costs (i.e., 

absent critical habitat designation) and 

includes probable economic impacts 

where land and water use may be 

subject to conservation plans, land 

management plans, best management 

practices, or regulations that protect the 

habitat area as a result of the Federal 

listing status of the species. Ultimately, 

the screening analysis allows us to focus 

our analysis on evaluating the specific 

areas or sectors that may incur probable 

incremental economic impacts as a 

result of the designation. If there are any 

unoccupied units in the proposed 

critical habitat designation, the 

screening analysis assesses whether any 

additional management or conservation 

efforts may incur incremental economic 

impacts. This screening analysis 

combined with the information 

contained in our IEM are what we 

consider our draft economic analysis 

(DEA) of the proposed critical habitat 

designation for the pearl darter; our 

DEA is summarized in the narrative 

below. 

Executive Orders (E.O.s) 12866 and 

13563 direct Federal agencies to assess 

the costs and benefits of available 

regulatory alternatives in quantitative 

(to the extent feasible) and qualitative 

terms. Consistent with the E.O. 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely 

affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 

that may result from the proposed 

designation of critical habitat for the 

pearl darter, first we identified, in the 

IEM dated April 21, 2020, probable 

incremental economic impacts 

associated with the following categories 

of activities: (1) Roadway and bridge 

construction and repair; (2) commercial 

or residential development; (3) 

dredging; (4) groundwater pumping; (5) 

instream dams and diversions; (6) 

storage, distribution, or discharge of 

chemical pollutants; (7) oil and gas; (8) 

utilities; (9) water quantity and supply; 

and (10) water quality. We considered 

each industry or category individually. 

Additionally, we considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation generally will not affect 

activities that do not have any Federal 

involvement; under the Act, designation 

of critical habitat only affects activities 

conducted, funded, permitted, or 

authorized by Federal agencies. In areas 

where the pearl darter is present, 

Federal agencies already are required to 

consult with the Service under section 

7 of the Act on activities they fund, 

permit, or implement that may affect the 

species. If we finalize this proposed 

critical habitat designation, 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

will result from the species being listed 

and those attributable to the critical 

habitat designation (i.e., difference 

between the jeopardy and adverse 

modification standards) for the pearl 

darter’s critical habitat. The following 

specific circumstances in this case help 

to inform our evaluation: (1) The 

essential physical or biological features 

identified for critical habitat are the 

same features essential for the life 

requisites of the species, and (2) any 

actions that would result in sufficient 

harm or harassment to constitute 

jeopardy to the pearl darter would also 

likely adversely affect the essential 

physical or biological features of critical 

habitat. The IEM outlines our rationale 

concerning this limited distinction 

between baseline conservation efforts 

and incremental impacts of the 

designation of critical habitat for this 

species. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

The proposed critical habitat 

designation for the pearl darter totals 

approximately 517 mi (832 km) of river 

and stream channels in two units. 

Riparian lands bordering the proposed 

critical habitat are under private (78 

percent), county (0.1 percent), State (15 

percent), and Federal (9 percent) 

ownership. A small portion (1.3 

percent) has shared State and Federal 

ownership. Unit 1 is occupied by the 

pearl darter and represents 94 percent of 

the proposed critical habitat. Within 

this occupied unit, any actions that may 

affect the species or its habitat would 

also affect designated critical habitat, 

and it is unlikely that any additional 

conservation efforts would be 

recommended to address the adverse 

modification standard over and above 

those recommended as necessary to 

avoid jeopardizing the continued 

existence of the pearl darter. Therefore, 

only administrative costs are expected 

in actions affecting this unit. While this 

additional analysis will require time 

and resources by both the Federal action 

agency and the Service, it is believed 

that, in most circumstances, these costs, 

because they are predominantly 

administrative in nature, would not be 

significant. 

Unit 2 is currently unoccupied by the 

species but is essential for the 

conservation of the species. This unit 

totals 30 mi (49 km) and comprises 6 

percent of the total proposed critical 

habitat designation. In this unoccupied 

area, any conservation efforts or 

associated probable impacts would be 

considered incremental effects 

attributed to the critical habitat 

designation. However, two threatened 

species, Gulf sturgeon (listed as Atlantic 

sturgeon (Gulf subspecies), Acipenser 

oxyrinchus desotoi) and ringed map 

turtle (Graptemys oculifera), currently 

occupy this unit, and conservation 

efforts to protect these species would 

also protect pearl darter critical habitat. 

The DEA finds that the total annual 

incremental costs of critical habitat 

designation for the pearl darter are not 

anticipated to reach $100 million in any 

given year based on the anticipated 

annual number of consultations and 

associated administrative costs, which 

are not expected to exceed $710,000 in 

any year. 

In Unit 1, which constitutes 94 

percent of the proposed critical habitat 

area, the activities that may affect the 

critical habitat are already subject to 

section 7 consultation due to the 

presence of pearl darter. We determined 

that the project modification 

recommendations made to avoid 

jeopardy to the pearl darter would also 

result in the avoidance of adverse 

modification. Thus, for projects and 

activities occurring in Unit 1, no 

additional project modification 

recommendations are likely to result 

from the proposed critical habitat rule 

and costs are limited to additional 

administrative effort. 

A relatively small fraction (6 percent) 

of the proposed critical habitat 

designation is in Unit 2, which is not 

currently occupied by the species. In 

these areas, activities that may affect the 


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critical habitat for the pearl darter are 

also already subject to section 7 

consultation due to the presence of 

other listed species with similar habitat 

requirements and designated critical 

habitat. Additionally, activities that may 

affect pearl darter critical habitat in Unit 

2 generally implement project 

modification recommendations from a 

standardized set provided in the 

Mississippi Standard Local Operations 

Procedures for Endangered Species 

(SLOPES) agreement. Through this 

agreement, enacted in June 2017, the 

U.S. Army Corps of Engineers (COE) 

and the Service have established routine 

procedures for jointly implementing 

section 7 requirements for all projects 

that require COE permits. The 

agreement requires the COE to consult 

species-specific SLOPES documents to 

determine if a project is expected to 

adversely affect the species or its 

habitat. As part of the agreement, 

species-specific avoidance and 

minimization measures have been 

established for COE projects. The 

measures described for the pearl darter 

are similar to the measures described for 

overlapping species and because the 

COE addresses permitting for projects 

with water impacts, all projects with a 

Federal nexus in the proposed pearl 

darter critical habitat are likely to follow 

the Mississippi SLOPES procedures and 

recommendations. Therefore, even 

absent critical habitat designation, these 

activities are likely to avoid adverse 

effects on the habitat. 

We are soliciting data and comments 

from the public on the DEA discussed 

above, as well as all aspects of this 

proposed rule and our required 

determinations. During the development 

of a final designation, we will consider 

the information presented in the DEA 

and any additional information on 

economic impacts we receive during the 

public comment period to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. If we 

receive credible information regarding 

the existence of a meaningful economic 

impact or other relevant impact 

supporting a benefit of exclusion, we 

will conduct an exclusion analysis for 

the relevant area or areas. We may also 

otherwise decide to exercise the 

discretion to evaluate any particular 

areas for possible exclusion. In addition, 

if we do conduct an exclusion analysis 

and we have received any information 

from experts in, or sources with 

firsthand knowledge about, impacts of 

the designation that are outside the 

scope of the Service’s expertise, for 

purposes of the exclusion analysis we 

will assign weights to those impacts 

consistent with the information from 

experts in, or sources with firsthand 

knowledge about, those impacts, unless 

we have rebutting information. We may 

exclude an area from critical habitat if 

we determine that the benefits of 

excluding the area outweigh the benefits 

of including the area, provided the 

exclusion will not result in the 

extinction of this species. 

Consideration of National Security 

Impacts 

Section 4(a)(3)(B)(i) of the Act may 

not cover all DoD lands or areas that 

pose potential national-security 

concerns (e.g., a DoD installation that is 

in the process of revising its INRMP for 

a newly listed species or a species 

previously not covered). If a particular 

area is not covered under section 

4(a)(3)(B)(i), national-security or 

homeland-security concerns are not a 

factor in the process of determining 

what areas meet the definition of 

‘‘critical habitat.’’ Nevertheless, when 

designating critical habitat under 

section 4(b)(2), the Service must 

consider impacts on national security, 

including homeland security, on lands 

or areas not covered by section 

4(a)(3)(B)(i). Accordingly, we will 

always consider for exclusion from the 

designation areas for which DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns. 

We cannot, however, automatically 

exclude requested areas. When DoD, 

DHS, or another Federal agency requests 

exclusion from critical habitat on the 

basis of national-security or homelandsecurity impacts, it must provide 

credible information, including a 

reasonably specific justification of an 

incremental impact on national security 

that would result from the designation 

of that specific area as critical habitat. 

That justification could include 

demonstration of probable impacts, 

such as impacts to ongoing bordersecurity patrols and surveillance 

activities, or a delay in training or 

facility construction, as a result of 

compliance with section 7(a)(2) of the 

Act. If the agency requesting the 

exclusion does not provide us with a 

reasonably specific justification, we will 

contact the agency to recommend that it 

provide a specific justification or 

clarification of its concerns relative to 

the probable incremental impact that 

could result from the designation. If the 

agency provides a reasonably specific 

justification, we will defer to the expert 

judgment of DoD, DHS, or another 

Federal agency as to: (1) Whether 

activities on its lands or waters, or its 

activities on other lands or waters, have 

national-security or homeland-security 

implications; (2) the importance of those 

implications; and (3) the degree to 

which the cited implications would be 

adversely affected in the absence of an 

exclusion. In that circumstance, in 

conducting a discretionary section 

4(b)(2) exclusion analysis, we will give 

great weight to national-security and 

homeland-security concerns in 

analyzing the benefits of exclusion. 

In preparing this proposal, we 

determined that the lands within the 

proposed designation of critical habitat 

for the pearl darter are not owned, 

managed, or used by the DoD or DHS, 

and, therefore, we anticipate no impact 

on national security or homeland 

security. However, during the 

development of a final designation we 

will consider any additional 

information received through the public 

comment period on the impacts of the 

proposed designation on national 

security or homeland security to 

determine whether to undertake the 

discretionary analysis to determine 

whether to exclude any specific areas 

from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. 

Consideration of 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 discussed 

above. We consider a number of factors 

including whether there are permitted 

conservation plans covering the species 

in the area such as HCPs, safe harbor 

agreements (SHAs), or candidate 

conservation agreements with 

assurances (CCAAs), or whether there 

are non-permitted conservation 

agreements and partnerships that would 

be encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at the existence of 

Tribal conservation plans and 

partnerships and consider the 

government-to-government relationship 

of the United States with Tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this proposal, we 

determined that there are currently no 

HCPs or other management plans for 

pearl darter, and the proposed 

designation does not include any Tribal 

lands or trust resources. We anticipate 

no impact on Tribal lands, partnerships, 


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or HCPs from this proposed critical 

habitat designation. Additionally, as 

described above, we are not considering 

excluding any particular areas on the 

basis of impacts to national security or 

economic impacts. 

During the development of a final 

designation, we will consider all 

information currently available or 

received during the public comment 

period. If we receive credible 

information regarding the existence of a 

meaningful impact supporting a benefit 

of excluding any area, we will 

undertake an exclusion analysis and 

determine whether those areas should 

be excluded from the final critical 

habitat designation under authority of 

section 4(b)(2) and our implementing 

regulations at 50 CFR 17.90. We may 

also exercise the discretion to undertake 

exclusion analyses for other areas as 

well. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this proposed rule in a manner 

consistent with these requirements. 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, and as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate the potential incremental 

impacts of rulemaking on those entities 

directly regulated by the rulemaking 

itself; in other words, the RFA does not 

require agencies to evaluate the 

potential impacts to indirectly regulated 

entities. The regulatory mechanism 

through which critical habitat 

protections are realized is section 7 of 

the Act, which requires Federal 

agencies, in consultation with the 

Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies would be directly regulated if 

we adopt the proposed critical habitat 

designation. There is no requirement 

under the RFA to evaluate the potential 

impacts to entities not directly 

regulated. Moreover, Federal agencies 

are not small entities. Therefore, 

because no small entities would be 

directly regulated by this rulemaking, 

the Service certifies that, if made final 

as proposed, the proposed critical 

habitat designation will not have a 

significant economic impact on a 

substantial number of small entities. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if made 

final, the proposed critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small business entities. 

Therefore, an initial regulatory 

flexibility analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. In 

our economic analysis, we did not find 

that this proposed critical habitat 

designation would significantly affect 

energy supplies, distribution, or use. 


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Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act 

(2 U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

seq.), we make the following finding: 

(1) This proposed 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, or Tribal governments, or 

the private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

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

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

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 E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the pearl 

darter in a takings implications 

assessment. The Act does not authorize 

the Service to regulate private actions 

on private lands or confiscate private 

property as a result of critical habitat 

designation. Designation of critical 

habitat does not affect land ownership, 

or establish any closures, or restrictions 

on use of or access to the designated 

areas. Furthermore, the designation of 

critical habitat does not affect 

landowner actions that do not require 

Federal funding or permits, nor does it 

preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed for the 

proposed designation of critical habitat 

for the pearl darter, and it concludes 

that, if adopted, this designation of 

critical habitat does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant Federalism effects. 

A federalism summary impact statement 

is not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this 

proposed critical habitat designation 

with, appropriate State resource 

agencies. From a federalism perspective, 

the designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the national government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The proposed 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

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

of the Solicitor has determined that the 

rule would not unduly burden the 

judicial system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, this proposed rule identifies the 

elements of physical or biological 

features essential to the conservation of 

the species. The proposed areas of 


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critical habitat are presented on maps, 

and the proposed rule provides several 

options for the interested public to 

obtain more detailed location 

information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

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 no Tribal 

lands fall within the boundaries of the 

proposed critical habitat for the pearl 

darter, so no Tribal lands would be 

affected by the proposed designation. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at http://www.regulations.gov 

and upon request from the Mississippi 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the 

Mississippi Ecological Services Field 

Office. 

Signing Authority 

The Director, U.S. Fish and Wildlife 

Service, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the U.S. Fish and Wildlife Service. 

Martha Williams, Principal Deputy 

Director Exercising the Delegated 

Authority of the Director, U.S. Fish and 

Wildlife Service, approved this 

document on June 29, 2021, for 

publication. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.11(h) by revising the 

entry for ‘‘Darter, pearl’’ under FISHES in 

the List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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

*******

FISHES

* * * * * * * 

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

*******

■ 3. Amend § 17.95(e) by adding an 

entry for ‘‘Pearl Darter (Percina aurora)’’ 

following the entry for ‘‘Niangua Darter 

(Etheostoma nianguae)’’ to read as set 

forth below: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes. 

* * * * * 

Pearl Darter (Percina aurora) 

(1) Critical habitat units are depicted 

for Clarke, Covington, Forrest, George, 

Greene, Jackson, Jones, Lauderdale, 

Newton, Perry, Simpson, Stone, and 

Wayne Counties, Mississippi, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of the pearl darter consist 

of the following components: 

(i) Unobstructed and stable stream 

and river channels with: 

(A) Connected sequences of channel 

runs and bends associated with pools 

and scour holes, and 

(B) Bottom substrates consisting of 

fine and coarse sand, gravel, bedrock, 

silt, clay, organic matter, or woody 

debris. 

(ii) A natural flow regime necessary to 

maintain instream habitats and their 

connectivity. 


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(iii) Water quality conditions, 

including cool to warm water 

temperatures (8 to 30 °C (46.4 to 

86.0 °F)), high dissolved oxygen (5.8 to 

9.3 mg/l), slightly acidic to basic pH (6.3 

to 7.6), and low levels of pollutants and 

nutrients meeting the current State of 

Mississippi criteria, as necessary to 

maintain natural physiological 

processes for normal behavior, growth, 

and viability of all life stages of the 

species. 

(iv) Presence of a prey base of small 

aquatic macroinvertebrates, including 

midges, crustaceans, mayflies, 

caddisflies, and zooplankton. 

(3) Critical habitat includes only the 

stream channels within the ordinary 

high water line, and does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of the 

final rule. 

(4) Data layers defining map units 

were created using U.S. Geological 

Survey’s National Hydrography Dataset 

flowline data, on a base map of State 

and County boundaries from the U.S. 

Department of Agriculture’s Natural 

Resources Conservation Service. Critical 

habitat units were mapped using the 

Geographic Coordinate System North 

American 1983 coordinates. The maps 

in this entry, as modified by any 

accompanying regulatory text, establish 

the boundaries of the critical habitat 

designation. The coordinates or plot 

points or both on which each map is 

based are available to the public at the 

Service’s internet site at http://

www.fws.gov/mississippiES/, at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2020–0062, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) Note: Index map follows: 

BILLING CODE 4333–15–P 


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(6) Unit 1: Pascagoula River drainage, 

Clarke, Covington, Forrest, George, 

Greene, Lauderdale, Jackson, Jones, 

Newton, Perry, Stone, and Wayne 

Counties, Mississippi. 

(i) Unit 1 consists of 487 miles (mi) 

(783 kilometers (km)) of connected river 

and stream channels within the 

Pascagoula River drainage, including: 

(A) The Pascagoula River from its 

confluence with the West Pascagoula 

River in Jackson County, upstream 63 

mi (102 km) to the confluence of the 

Leaf and Chickasawhay Rivers in George 

County; 

(B) The Big Black/Black Creek from its 

confluence with the Pascagoula River in 

Jackson County, upstream 80 mi (129 

km) to U.S. Highway 49 Bridge in 

Forrest County; 

(C) The Chickasawhay River from its 

confluence with the Leaf River just 

north of Enterprise, Clarke County, 

upstream 160 mi (257 km) to the 

confluence of Okatibbee Creek and 

Chunky River in Clarke County; 

(D) The Chunky River from its 

confluence with Okatibbee Creek in 

Clarke County, upstream 21 mi (34 km) 

to second Highway 80 Crossing in 

Newton County; 

(E) The Leaf River from its confluence 

with the Chickasawhay River in George 

County, upstream 119 mi (192 km) to 

the bridge crossing at U.S. Highway 84 

in Covington County; 


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Index Map of Critical Habitat 

for Pearl Darter ( Percina aurora) 

\ 

Unit 2 

Strong River 

NI sissippi 

Louisiana 

Louisiana 

- Critical Habitat 

c:J State Boundary 

D County Boundary 

Newton Lauderdale 

Wayne 

Unit 1 

Pascagoula River 

I 

0 12:5 
36696 Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Proposed Rules 

(F) The Bouie River from its 

confluence with the Leaf River, 

upstream 15 mi (24 km) to the 

confluence of Okatoma Creek, in Forrest 

County; and 

(G) The Okatoma Creek from its 

confluence with the Bouie River in 

Forrest County, upstream 28 mi (45 km) 

to the bridge crossing at U.S. Highway 

84 in Covington County. 

(ii) The channel borders (and 

therefore the stream channel bottoms) in 

Unit 1 are generally privately owned 

agricultural or silvicultural lands, with 

the exception of 76 mi (122 km) of the 

Pascagoula River channel border owned 

and managed by the Mississippi 

Department of Wildlife, Fisheries, and 

Parks, and 45 mi (72 km) owned by the 

U.S. Forest Service. 

(iii) Map of Unit 1 follows: 

(7) Unit 2: Strong River, Simpson 

County, Mississippi. 

(i) Unit 2 consists of approximately 30 

mi (49 km) of the Strong River channel 

from its confluence with the Pearl River, 

upstream to U.S. Highway 49 in 


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Unit 1: Pascagoula River Critical Habitat 

Pearl Darter (Percina aurora), Mississippi 

•---------+-------

',,~~, 

,, 6 ~ 

,_ 

"'\. 

' I 

r -~ ---~ --•-..--_.__ - -

r---.L--..1 I 

I 

' 

--'--- --

Tennessee 

1 Foi~st 

l:1,,i · I 

,@~, C 

I \.'t,,~ ~ - - - ":, -L -3⁄4 - I : ~-"' 

"'c--1-

0, I $"" __ _ St,;:ine 

-'------~ 

, I 

I 

Ha~~i,son '. Jackson 

\ i • ·, l 

labama 

-18 ····•-·:ce. 1 

Louisiana 

N 

50 Kilometers + 

,--....,..--,--,.--,--r---.-'-..-....,40 Miles - __ I ·-----

- Critical Habitat 

,,·.-.-·c::·::.::, Road 0 12.5 25 

: : : County Boundary 

D State Boundary 0 10 20 
Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Proposed Rules 36697 

Simpson County. The channel borders 

(and therefore the stream channel 

bottoms) in this unit are generally 

privately owned agricultural or 

silvicultural lands, with the exception 

of a short channel reach (0.39 mi (0.63 

km)) owned and managed by the 

Simpson County Park Commission. 

(ii) Map of Unit 2 follows: 

* * * * * 

Madonna Baucum, 

Regulations and Policy Chief, Division of 

Policy, Economics, Risk Management, and 

Analytics, Joint Administrative Operations, 

U.S. Fish and Wildlife Service. 

[FR Doc. 2021–14272 Filed 7–12–21; 8:45 am] 

BILLING CODE 4333–15–C 


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Unit 2: Strong River Critical Habitat 

Pearl Darter ( Percina aurora), Simpson County, Mississippi 

., 

+

N o 5 10 20Kilometers 

'o~~ 3.75 7.5 15 MIies 

- Critical Habttat 

== Road 

C';'.i County Boundary