[Federal Register Volume 82, Number 191 (Wednesday, October 4, 2017)]
[Proposed Rules]
[Pages 46197-46205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21351]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2017-0056; 4500030113]
RIN 1018-BC44


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Species Status for the Candy Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; 12-month finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the candy darter (Etheostoma 
osburni) as a threatened or endangered species under the Endangered 
Species Act, as amended (Act), and to designate critical habitat. After 
review of the best available scientific and commercial information, we 
find that listing the candy darter is warranted. Accordingly, we 
propose to list the candy darter (Etheostoma osburni), a freshwater 
fish species from Virginia and West Virginia, as a threatened species 
under Act. If we finalize this rule as proposed, it would extend the 
Act's protections to this species. The effect of this regulation will 
be to add this species to the List of Endangered and Threatened 
Wildlife.

DATES: We will accept comments received or postmarked on or before 
December 4, 2017. 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 November 20, 2017.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R5-ES-2017-0056, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R5-ES-2017-0056; U.S. Fish and Wildlife 
Service Headquarters, MS: BPHC, 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 Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: John Schmidt, Project Leader, West 
Virginia Ecological Services Field Office, 694 Beverly Pike, Elkins, WV 
26241-9475; by telephone 304-636-6586 or by facsimile 304-636-7824. 
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. Under the Act, if a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. Critical habitat shall be designated, to the 
maximum extent prudent and determinable, for any species determined to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designations and revisions 
of critical habitat can be completed only by issuing a rule.
    This rule proposes adding the candy darter (Etheostoma osburni) as 
a threatened species to the List of Endangered and Threatened Wildlife 
in title 50 of the Code of Federal Regulations (50 CFR 17.11(h)).
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence. We have determined that hybridization (Factor E) 
with the variegate darter (Etheostoma variatum) is the primary threat 
to the candy darter.
    Peer review. A team of Service biologists prepared a Species Status 
Assessment Report (SSA Report) for the candy darter. The SSA Report 
represents a compilation and assessment of the best scientific and 
commercial information available concerning the status of the candy 
darter, including the past, present, and future factors influencing the 
species. We solicited independent peer review of the SSA Report by six 
individuals with expertise in darters; fisheries, population, or 
landscape ecology; genetics and conservation genetics; and/or 
speciation and conservation biology; we received comments from four of 
the six peer reviewers. The SSA Report can be found in http://www.regulations.gov under the FWS-R5-ES-2017-0056 docket; on the 
Southwest Virginia Ecological Services Field Office Web site at: 
https://www.fws.gov/northeast/virginiafield/svfo/southwesternvirginia.html; and on the West Virginia Ecological Services 
Field Office Web site at: https://www.fws.gov/westvirginiafieldoffice/endangeredspecies.html.

[[Page 46198]]

Information Requested

Public Comments

    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 the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek new information not already included in the SSA 
Report concerning:
    (1) The candy darter's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) The historical and current status, range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (5) The occurrence of variegate darters within the range of candy 
darters and evidence of further hybridization between the two species.
    (6) The potential for, and timeframe associated with, additional 
introductions of the variegate darter into unaffected watersheds.
    (7) Specific prohibitions and exceptions to those prohibitions that 
may be necessary and advisable for the candy darter's conservation. We 
intend to publish, as appropriate, a more tailored proposed rule with 
provisions set forth under section 4(d) of the Act for public review 
and comment in the future. Activities we are considering for potential 
exemption under a section 4(d) rule include, but are not necessarily 
limited to, exceptions for:
    (a) Specific instream and bank habitat restoration activities that 
will benefit the candy darter, including revegetation of riparian 
corridors, natural stream channel design, and redesigning and removal 
of stream crossing structures;
    (b) water quality improvement actions such as stream liming;
    (c) genetic and population monitoring;
    (d) captive propagation in conjunction with a Service-approved 
Captive Propagation Plan;
    (e) sustainable forestry practices that primarily occur adjacent 
to, or upslope from, but do not occur within streams occupied or likely 
to be occupied by the candy darter and that are implemented according 
to well-defined and enforceable best management practices (e.g., 
Sustainable Forestry Initiative, Forest Stewardship Council); and
    (f) other activities that do not:
    (i) Facilitate the spread of candy darter/variegate darter 
hybridization;
    (ii) increase sedimentation that negatively affects feeding, 
breeding, sheltering, or dispersal; and
    (iii) cause a change in water temperature that negatively affects 
feeding, breeding, sheltering, or dispersal.
    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.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    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 Web site. 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, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, West Virginia Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we sought the expert 
opinions of six appropriate and independent specialists regarding the 
SSA Report that supports this proposed rule and received comments from 
four of the six peer reviewers. These peer reviewers have expertise in 
freshwater fisheries, aquatic ecology, and genetics. The purpose of 
peer review is to ensure that our listing determinations and critical 
habitat designations are based on scientifically sound data, 
assumptions, and analyses. See the Executive Summary--Peer Review 
section above.

Previous Federal Action

    We identified the candy darter as a Category 2 candidate species in 
the December 30, 1982, Review of Vertebrate Wildlife; Notice of Review 
(50 FR 58454). Category 2 candidates were defined as species for which 
we had information that proposed listing was possibly appropriate, but 
conclusive data on biological vulnerability and threats were not 
available to support a proposed rule at that time. The species remained 
so designated in subsequent annual Candidate Notices of Review (CNOR) 
(50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 
58804, November 21, 1991; and 59 FR 58982, November 15, 1994). In the 
February 28, 1996, CNOR (61 FR 7596), we discontinued the designation 
of Category 2 species as candidates;

[[Page 46199]]

therefore, the candy darter was no longer a candidate species.
    In 2010, the Center for Biological Diversity (CBD) petitioned the 
Service to list 404 aquatic, riparian, and wetland species from the 
Southeastern United States under the Act. The candy darter was among 
these 404 species. On September 27, 2011, the Service published a 
substantial 90-day finding for 374 of the 404 species, including the 
candy darter, soliciting information about, and initiating status 
reviews for, those species (76 FR 59836). In 2015, CBD filed a 
complaint against the Service for failure to complete a 12-month 
finding for the candy darter within the statutory timeframe. The 
Service entered into a settlement agreement with CBD to address the 
complaint; the court-approved settlement agreement specified that a 12-
month finding for the candy darter would be delivered to the Federal 
Register by September 30, 2017.
    We will also be providing a proposal to designate critical habitat 
for the candy darter under the Act in the near future.

Background

    A thorough review of the taxonomy, life history, and ecology of the 
candy darter (Etheostoma osburni) is presented in the species status 
assessment (U.S. Fish & Wildlife Service 2017, entire; available http://www.regulations.gov under the FWS-R5-ES-2017-0056 docket). The candy 
darter is recognized by the American Fisheries Society (Page et al. 
2013, p. 139) as a valid taxon and is listed as such in the Integrated 
Taxonomic Information System (ITIS) database (http://www.itis.gov, 
2016). We have no information to suggest there is scientific 
disagreement about the candy darter's taxonomy; therefore, we accept 
that the candy darter is a valid taxon based upon its recognition by 
the American Fisheries Society and its ITIS designation.
    The candy darter is a small, freshwater fish endemic to second 
order and larger streams and rivers within portions of the upper 
Kanawha River basin, which is synonymous with the Gauley and greater 
New River watersheds in Virginia and West Virginia. The species is 
described as a habitat specialist, being most often associated with 
faster flowing stream segments with coarse bottom substrate (e.g., 
gravel, cobble, rocks, and boulders), which provides shelter for 
individual darters and breeding habitat (see below). Candy darters are 
intolerant of excessive sedimentation and stream bottom embeddedness 
(the degree to which gravel, cobble, rocks, and boulders are surrounded 
by, or covered with, fine sediment particles).
    The available candy darter occurrence data, all of which were 
collected after the aquatic habitat in the region was degraded in the 
late 1800s by widespread forest clearing, indicate that the species 
prefers cool or cold water temperatures, but that warm water conditions 
may also be tolerated. The fish are opportunistic feeders, eating 
mostly benthic macroinvertebrates such as mayflies and caddisflies. In 
streams maintaining favorable habitat conditions, candy darters can be 
abundant throughout the stream continuum.
    Candy darters are sexually mature at 2 years of age and live to a 
maximum age of 3 years. They are classified as brood-hiding, benthic 
spawners. In this reproductive strategy, the female deposits her eggs 
in the pebble and gravel substrate between larger cobbles and boulders, 
and an attendant male simultaneously fertilizes the eggs as they are 
released. During spawning, males become aggressively territorial, and 
in all observed instances of spawning aggression, the larger male 
prevailed and fertilized the female's eggs. Female candy darters 
produce a relatively low number of eggs (average 170 per individual) as 
compared to other fish, with no significant deviation from 1:1 sex 
ratios.
    We are uncertain whether individual candy darters complete their 
lifecycle within single riffles or riffle complexes spanning just a few 
hundred meters or are capable of longer, seasonally mediated movements 
within suitable habitat. While data are sparse regarding the minimum 
habitat size and degree of genetic connectivity required for candy 
darter population viability, the historical distribution of the species 
and the fundamentals of conservation biology suggest these factors are 
important to the species.

Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. We completed a comprehensive 
assessment of the biological status of the candy darter and prepared a 
report of the assessment (SSA Report), which provides a thorough 
account of the species' overall viability using the conservation 
biology principles of resiliency, redundancy, and representation 
(collectively, the ``3Rs''). We have used the SSA Report's assessment 
of the candy darter's current and potential future status, based on the 
factors influencing the species, framed in the context of the 3Rs, to 
inform our determination of whether the candy darter meets the 
definition of a threatened or an endangered species (see the 
Determination section below).
    Because we have included information below about the candy darter's 
3Rs, we further define those terms here. Resiliency means having 
sufficiently large populations for the species to withstand stochastic 
events (arising from random factors). We can measure resiliency based 
on metrics of population health; for example, birth versus death rates 
and population size, if that information exists. Resilient populations 
are better able to withstand disturbances such as random fluctuations 
in birth rates (demographic stochasticity), variations in rainfall 
(environmental stochasticity), or the effects of human activities. 
Redundancy means having a sufficient number of populations for the 
species to withstand catastrophic events (such as a rare destructive 
natural event or episode involving many populations). Redundancy is 
about spreading the risk and can be measured through the duplication 
and distribution of populations across the range of the species. 
Generally, the greater the number of populations a species has 
distributed over a larger landscape, the better it can withstand 
catastrophic events. Representation means having the breadth of genetic 
makeup of the species to adapt to changing environmental conditions. 
Representation can be measured through the genetic diversity within and 
among populations and the ecological diversity (also called 
environmental variation or diversity) of populations across the 
species' range. The more representation, or diversity, a species has, 
the more it is capable of adapting to changes (natural or human caused) 
in its environment.
    In the absence of species-specific genetic and ecological diversity 
information, we evaluate representation based on the extent and 
variability of habitat characteristics within the geographical range. 
We define viability here as the ability of the species to persist in 
the wild over time and, conversely, to avoid extinction.
    In this section, we summarize the conclusions of that assessment, 
which can be accessed at Docket FWS-R5-ES-201X-0056 on http://www.regulations.gov, at https://www.fws.gov/westvirginiafieldoffice/endangeredspecies.html, and at https://www.fws.gov/northeast/virginiafield/svfo/southwesternvirginia.html. The SSA Report documents 
the results of

[[Page 46200]]

our comprehensive biological status review for the candy darter, 
including an assessment of the factors influencing its continued 
existence. The SSA report does not represent a decision by the Service 
on whether the candy darter should be proposed for listing as an 
endangered or threatened species under the Act. Rather, the SSA Report 
provides the scientific basis that informs our regulatory decision, 
which involves the further application of standards within the Act and 
its implementing regulations and policies. The Act directs us to 
determine whether any species is an endangered species or a threatened 
species because of any factors affecting its continued existence (i.e., 
whether it meets the definition of a threatened or an endangered 
species). In this section, we review the biological condition of the 
species and its resources and the factors influencing the species and 
resources to assess the species' overall viability and the risks to 
that viability.

Summary of Current Condition

    Historically, the candy darter occurred in 35 populations 
distributed across 7 metapopulations located in the Bluestone, Lower 
New River, Upper Gauley, Lower Gauley, and Middle New watersheds in the 
Appalachian Plateaus physiographic province and the Upper New River and 
Greenbrier watersheds in the Valley and Ridge physiographic province.
    Within these two physiographic provinces, the candy darter has been 
extirpated from almost half of its historical range; (17 (49 percent) 
of 35 known populations and 2 (29 percent) of 7 known metapopulations), 
with the extirpations representing a complete loss of resiliency in 
those populations (or metapopulations). We qualitatively assessed the 
remaining (extant) populations, placing them in ``low,'' ``moderate,'' 
or ``high'' categories that represent the populations' potential to 
bounce back after stochastic events. These categories were based on a 
combination of physical habitat metrics, nonnative competition metrics, 
and candy darter demographic metrics (see Service 2017, pp. 45, B1-
B16). Of the 18 extant populations, 6 (33 percent) have a current score 
of high resiliency, 6 (33 percent) have moderate resiliency, and 6 (33 
percent) have low or moderate to low resiliency. The six populations 
with high resiliency occur in two metapopulations (the Upper Gauley in 
the Appalachian Plateaus physiographic province and the Greenbrier in 
the Valley and Ridge physiographic province); the remaining three 
extant metapopulations (the Lower Gauley and Middle New in the 
Appalachian Plateaus physiographic province and the Upper New River in 
the Valley and Ridge physiographic province) maintain populations with 
moderate or low resiliency. Therefore, we conclude the candy darter's 
populations currently have moderate to low resiliency because the 
majority of metapopulations fall into those categories.
    This loss of candy darter populations and the areas they 
represented within the species' historical range, as well as the 
fragmentation of extant populations, has compromised the species' 
ability to repatriate those areas or avoid species-level effects of a 
catastrophic event. Based on the species' current distribution across 
its historical range and the species' distribution and condition within 
each of the seven historical metapopulations (one with moderate to high 
internal redundancy, one with moderate internal redundancy, one with 
low internal redundancy, two with no internal redundancy, and two that 
have been extirpated), we conclude that the candy darter's current 
redundancy is moderate to low (Service 2017, pp. 27-28, 43-49).
    While the candy darter currently maintains representation in both 
the Appalachian Plateaus and Valley and Ridge physiographic provinces, 
only a single metapopulation in each province has a moderate to high 
resiliency score. As related to the species' occupation in a diversity 
of environmental settings, candy darters have lost representation from 
lower mainstem rivers and tributaries. Researchers have noted 
differences in the genetic, physical, behavioral, or developmental 
characteristics of some stream fish species based on the species' 
longitudinal position in the watershed (e.g., stream size) (Neville et 
al. 2006, pp. 911-913), but we have no data indicating candy darters 
exhibit similar differences based on their particular environmental 
setting. Although the candy darter retains representation in both the 
Appalachian Plateaus and Valley and Ridge physiographic provinces, the 
species has a different distribution than it had historically (e.g., 
its presence or absence in headwater vs. tributary streams), and likely 
a different ability to respond to stochastic and catastrophic events, 
thereby putting the species at increased risk of extinction from any 
such events. Therefore, we conclude that the species' representation is 
currently moderate to low (Service 2017, pp. 27-28, 43-49).
    The candy darter is currently distributed in five of the historical 
seven metapopulations. The populations within those metapopulations 
generally have moderate to low resiliency and redundancy scores. While 
the candy darter is present in the two physiographic provinces from 
which it is historically known, the species is absent from some 
ecological settings in which it once existed. This fact leads us to 
conclude the candy darter's representation is also moderate to low. 
Therefore, our analysis under the 3Rs leads us to conclude that the 
condition of the candy darter is currently moderate to low.

Risk Factors for the Candy Darter

    Based on the candy darter's life history and habitat needs, and in 
consultation with species' experts from Virginia and West Virginia 
State and Federal agencies and academic institutions, we identified the 
potential stressors (negative influences), the contributing sources of 
those stressors, and conservation measures to address those stressors 
that are likely to affect the species' current condition and viability 
(Service 2017, pp. 31-43). We evaluated how these stressors may be 
currently affecting the species and whether, and to what extent, they 
would affect the species in the future (Service 2017, pp. 50-65). Water 
temperature, excessive sedimentation, habitat fragmentation, water 
chemistry, water flow, and nonnative competition likely influenced the 
species in the past and contributed to its current condition, and may 
continue to affect some individual populations in the future. 
Hybridization with the closely related variegate darter (Etheostoma 
variatum) appears to be having, and will continue to have, the greatest 
influence on candy darter populations and its overall viability within 
the next 25 years (Service 2017, pp. 50-65). While we acknowledge there 
is uncertainty regarding some of the scientific data and assumptions 
used to assess the biological condition of the candy darter, the 
species' experts generally agreed with the overall methodology and 
confirmed that the results were reflective of their observations of the 
candy darter and its habitat.
    As mentioned above, the primary stressor to the candy darter is 
hybridization with the variegate darter (Service 2017, pp. 31-36, 50), 
a species that is native to the Kanawha River basin below the Kanawha 
Falls in Fayette County, West Virginia. The Kanawha Falls serve as a 
natural barrier to fish dispersal from the lower Kanawha River basin 
(and greater Ohio River basin) upstream into the range of the candy 
darter in the upper Kanawha River basin. However, in the late 20th 
century, the variegate darter was introduced into the upper Kanawha

[[Page 46201]]

basin, likely by ``bait bucket transfer.'' Since their introduction in 
1982 and 2002, variegate darters have expanded approximately 3 to 9 
stream miles per year over the course of the last 20 or more years 
within the range of the candy darter. Genetic studies have demonstrated 
that where variegate and candy darter ranges now overlap, the two 
species will hybridize, quickly resulting in ``genetic swamping'' (the 
homogenization or replacement of native genotypes) of the endemic candy 
darter population and eventually its complete replacement by variegate 
darters or hybrids (Service 2017, pp. 31-36).

Summary of Future Conditions Analysis

    We modeled a total of five scenarios to assess the potential 
viability of the candy darter at a point up to 25 years in the future 
(Service 2017, pp. 50-65). Two scenarios were focused on habitat change 
(one positive and the other negative), and three scenarios were focused 
on variegate darter invasion. However, the habitat change scenarios, by 
themselves, are not plausible scenarios because variegate darter 
hybridization is ongoing and likely to continue (see Chapter 4 and 
Appendix B of the SSA Report for additional information). We chose to 
model all scenarios out to 25 years because we have data to reasonably 
predict potential habitat and variegate darter changes and their 
effects on the candy darter within this timeframe.
    Under the three most plausible scenarios, the predicted rate of 
variegate darter expansion and hybridization remains the same, and at 
the end of 25 years, the candy darter will likely occur in four 
isolated populations and maintain little resilience, redundancy, or 
representation. The effects of significant positive or negative habitat 
changes do not alter this outcome; although it is possible that, 
because variegate darters may be more tolerant of a wider range of 
habitat conditions, negative habitat changes could selectively benefit 
variegate darters and therefore increase the rate at which candy 
darters are extirpated.
    The candy darter SSA Report contains a more detailed discussion of 
our evaluation of the biological status of the candy darter and the 
influences that may affect its continued existence. Our conclusions are 
based upon the best available scientific and commercial data, including 
the expert opinion of the species' experts (fishery biologists, aquatic 
ecologists, and geneticists from State and Federal agencies and 
academic institutions). Please see the SSA report for a complete list 
of the species experts and peer reviewers and their affiliations).

Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the candy darter. Our analysis of this information indicates that, 
at the species level, hybridization with variegate darters (Factor E) 
is the most influential factor affecting the candy darter now and into 
the future. Excessive sedimentation and increased water temperatures 
degraded once-suitable habitat (Factor A) and likely caused historical 
declines of the candy darter; these factors continue to affect some of 
the remaining populations despite regulatory mechanisms (Factor D) to 
reduce or eliminate sedimentation. There may be additional 
infrastructure projects (e.g. roads, pipeline, etc.) that increase 
sediment loading within the range of the candy darter as a result of 
forest clearing for permanent rights of way and stream crossings. 
Additionally, the current level of habitat fragmentation (Factor A) 
isolates some populations, which reduces gene flow and limits the 
potential for the species to colonize or recolonize streams if habitat 
conditions change. Other factors such as flow alterations and water 
quality degradation that affect habitat (Factor A), and the stocking of 
nonnative species that can eat (Factor C) or outcompete (Factor E) 
candy darter are not expected to cause species-level effects. In 
addition, we have no evidence that overutilization (Factor B) or 
disease (Factor C) is affecting individuals or populations of candy 
darters.
    Hybridization with variegate darters has occurred or is currently 
occurring in multiple streams within the Lower New, Lower Gauley, and 
Greenbrier River watersheds in West Virginia (Service 2017, p. 34). 
Variegate darters have not yet been detected in the remainder of the 
candy darter's range (i.e., the Upper Gauley watershed in West Virginia 
and the Middle New and Upper New watersheds in Virginia). However, the 
risk is moderately high that the variegate darter will eventually be 
introduced into these watersheds and ultimately replace most candy 
darter populations throughout the candy darter's range.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range.'' We find that an endangered species status is not appropriate 
for the candy darter because the species still occurs throughout 
approximately half of its historical range and the risk is low that the 
species would not persist in the near term; in other words, the risk of 
the candy darter significantly declining in the near term is low given 
that it has persisted despite historical levels of habitat loss. 
Further, variegate darters are not known to be present in the Virginia 
areas of the species' range, thus the risk of significant declines in 
the near term due to hybridization is low in those areas. The 
persistence of occupied habitat within the species' range provides 
redundancy, resiliency, and representation levels that are likely 
sufficient to sustain the species beyond the near term. Therefore, we 
conclude that the current risk of extinction of the candy darter is 
sufficiently low that it does not meet the definition of an endangered 
species under the Act.
    The Act defines a threatened species as any species that is 
``likely to become endangered throughout all or a significant portion 
of its range within the foreseeable future.'' We find that the status 
of the candy darter meets the definition of a threatened species. 
Because the risk is high that hybridization between the candy darter 
and the variegate darter will continue to occur, we can reasonably 
predict that within 20 years hybridization between the two species is 
likely to increase within the range of the candy darter to an extent 
causing the species to become in danger of extinction (see table 6 and 
Chapter 4 in the SSA report). We cannot precisely predict the timing of 
introduction of the variegate darter into additional areas within the 
candy darter's range, the rate of hybridization once introduction 
occurs, and the time at which candy darters will be replaced by 
variegate darters or hybrids; however, the time period over which the 
variegate darter has spread into the candy darter's range in the past 
and the documented effects of hybridization between the two species 
give us reasonable confidence in our determination that the candy 
darter is

[[Page 46202]]

likely to experience additional effects of hybridization within 20 
years to an extent that will cause the species to become in danger of 
extinction. Therefore, on the basis of the best available scientific 
and commercial information, we propose listing the candy darter as 
threatened in accordance with sections 3(6) and 4(a)(1) of the Act.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that the 
candy darter is threatened throughout all of its range, no portion of 
its range can be ``significant'' for purposes of the definitions of 
``endangered species'' and ``threatened species.'' See the Final Policy 
on Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37577, July 1, 2014). While it is the 
Service's position under the SPR Policy that undertaking no further 
analysis of ``significant portion of its range'' in this circumstance 
is consistent with the language of the Act, we recognize that the 
Policy is currently under judicial review, so we also took the 
additional step of considering whether there could be any significant 
portions of the species' range where the species is in danger of 
extinction. We evaluated whether there is substantial information 
indicating that there are any portions of the species' range: (1) that 
may be ``significant,'' and (2) where the species may be in danger of 
extinction. In practice, a key part of identifying portions appropriate 
for further analysis is whether the threats are geographically 
concentrated. The threats affecting the species are throughout its 
entire range; therefore, there is not a meaningful geographical 
concentration of threats. As a result, even if we were to undertake a 
detailed SPR analysis, there would not be any portions of the species' 
range where the threats are harming the species to a greater degree 
such that it is in danger of extinction in that portion.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, state, tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop the recovery plan. A recovery team (composed of species 
experts, Federal and state agencies, nongovernmental organizations, and 
stakeholders) is sometimes established to develop the recovery plan. 
The recovery plan identifies recovery criteria that indicate when a 
species may be ready for downlisting or delisting, actions necessary to 
achieve recovery and their estimated costs, and methods for monitoring 
recovery progress. The recovery plan may be revised to address 
continuing or new threats to the species, as new substantive 
information becomes available. When completed, the recovery outline, 
draft recovery plan, and final recovery plan will be available on our 
Web site (http://www.fws.gov/endangered), or from our West Virginia 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, states, tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, state, and tribal lands. 
If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, state 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Virginia and West 
Virginia would be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the candy darter. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Although the candy darter is only proposed for listing under the 
Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include, but are not limited to, management and any other 
landscape-altering activities on lands administered by the U.S. Forest 
Service, National Park Service, and the U.S. Army Corps of

[[Page 46203]]

Engineers (ACOE); issuance of section 404 Clean Water Act permits by 
the ACOE; issuance or oversight of coal mining permits by the Office of 
Surface Mining; and construction and maintenance of roads, bridges, or 
highways by the Federal Highway Administration.
    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened species. The Act and its implementing 
regulations set forth a series of general prohibitions and exceptions 
that apply to threatened wildlife. The prohibitions of section 9(a)(1) 
of the Act, as applied to threatened wildlife and codified at 50 CFR 
17.31, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) threatened wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any listed species. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to employees of the 
Service, the National Marine Fisheries Service, other Federal land 
management agencies, and state conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    For the candy darter, we are considering developing a rule under 
section 4(d) of the Act that is tailored to the specific threats and 
conservation needs of this species. Please see the Information 
Requested--Public Comments section above for a list of activities we 
are considering exempting under a section 4(d) rule in the future. If 
appropriate, we will develop and then announce the availability of a 
proposed tailored section 4(d) rule for public review and comment.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. Based on the best available information, 
the following actions are unlikely to result in a violation of section 
9, if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    <bullet> Normal agricultural practices, including herbicide and 
pesticide use, which are carried out in accordance with any existing 
regulations, permit and label requirements, and best management 
practices.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act; this 
list is not comprehensive:
    (1) Introduction of variegate darters into suitable candy darter 
habitat.
    (2) Stocking of nonnatives into suitable candy darter habitat.
    (3) Unlawful destruction or alteration of the habitat of the candy 
darter (e.g., unpermitted instream dredging, impoundment, water 
diversion or withdrawal, channelization, discharge of fill material) 
that impairs essential behaviors such as breeding, feeding, or 
sheltering, or results in killing or injuring a candy darter.
    (4) Unauthorized discharges or dumping of toxic chemicals or other 
pollutants into waters supporting the candy darter that kills or 
injures individuals, or otherwise impairs essential life-sustaining 
behaviors such as breeding, feeding, or finding shelter.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the appropriate 
office:
    <bullet> Southwestern Virginia Ecological Services Field Office, 
330 Cummings Street, Abingdon, VA 24210; telephone (276) 623-1233; 
facsimile (276) 623-1185.
    <bullet> West Virginia Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Critical Habitat for the Candy Darter

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
all methods and procedures that are necessary to bring an endangered or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    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

[[Page 46204]]

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.

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 designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is currently no imminent threat of take attributed to 
collection or vandalism under Factor B for the candy darter, and 
identification and mapping of critical habitat is not likely to 
increase any such threat. In the absence of finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to a critical habitat designation, then a 
prudent finding is warranted. The potential benefits of designation 
include: (1) Triggering consultation under section 7 of the Act in new 
areas for actions in which there may be a Federal nexus where it would 
not otherwise occur because, for example, it is or has become 
unoccupied or the occupancy is in question; (2) focusing conservation 
activities on the most essential features and areas; (3) providing 
educational benefits to State or county governments or private 
entities; and (4) preventing people from causing inadvertent harm to 
the species. Therefore, because we have determined that the designation 
of critical habitat will not likely increase the degree of threat to 
these species and may provide some measure of benefit, we find that 
designation of critical habitat is prudent for the candy 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 
species 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) Information sufficient to perform 
required analyses of the impacts of the designation is lacking, or (ii) 
The biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat.
    As discussed above, we have reviewed the available information 
pertaining to the biological needs of the candy darter and habitat 
characteristics where the species is located. Because we are seeking, 
through this document, additional information regarding updated candy 
darter occurrence records, updated documentation of variegate darter 
presence and risk for additional variegate darter introductions, and 
other analyses, we conclude that the designation of critical habitat is 
not determinable for the candy darter at this time. We will make a 
determination on critical habitat no later than 1 year following any 
final listing determination.

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.

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

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 
West Virginia Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Northeast Regional Office.

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

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

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

0
2. In Sec.  17.11(h), add an entry for ``Darter, candy'' in 
alphabetical order under FISHES to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 46205]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Fishes
 
                                                  * * * * * * *
Darter, candy...................  Etheostoma osburni  Wherever found....  T              [Federal Register
                                                                                          citation when
                                                                                          published as a final
                                                                                          rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


    Dated: September 7, 2017.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2017-21351 Filed 10-3-17; 8:45 am]
 BILLING CODE 4333-15-P