Federal Register, Volume 59 Issue 243 (Tuesday, December 20, 1994)

[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31195]

[[Page Unknown]]

[Federal Register: December 20, 1994]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC01

Endangered and Threatened Wildlife and Plants; Determination of
Threatened Status for the Cherokee Darter and Endangered Status for the
Etowah Darter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines threatened
status for the Cherokee darter (Etheostoma (Ulocentra) sp.) and
endangered status for the Etowah darter (Etheostoma etowahae) under the
Endangered Species Act of 1973 (Act), as amended. The Cherokee darter
and Etowah darter are recently discovered species of fish that are
endemic to the Etowah River system in north Georgia.
The Cherokee darter is now known from approximately 20 small
tributary systems of the Etowah River, but healthy populations are
known from only a few sites. The Etowah darter is known from the upper
Etowah River mainstem and two tributary systems. Impoundments and
deteriorating water and benthic habitat quality resulting from
siltation, agricultural runoff, other pollutants, poor land use
practices, increased urbanization, and waste discharges have resulted
in the restriction and fragmentation of these species' current ranges.
These factors continue to impact the species and their habitat.

EFFECTIVE DATE: January 19, 1995.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310,
Jacksonville, Florida 32216.

FOR FURTHER INFORMATION CONTACT: Mr. Robert S. Butler at the above
address (904/232-2580).

SUPPLEMENTARY INFORMATION:

Background

The Etowah River is one of three major upper Coosa River system
tributaries, the others being the Conasauga and Oostanaula Rivers. The
Etowah joins the Oostanaula River in Rome, Georgia, to form the Coosa
River. The Coosa River itself is the major eastern tributary of the
Mobile Basin and empties into the Gulf of Mexico in southwest Alabama.
The Etowah River system drains portions of the Blue Ridge, Piedmont,
and Valley and Ridge physiographic provinces. All streams in the
drainage are upland in nature and characterized by high gradients and
rocky substrates. Land use patterns of the Etowah system are largely of
a rural agrarian economy, with scattered municipalities, including the
encroaching Atlanta metropolitan area.
The diversity of the aquatic fauna is commensurate with the
diversity of physiographic provinces comprising the basin. Many of the
aquatic organisms reported from the Etowah system are rare. Records of
federally protected species are known for an endangered fish (amber
darter, Percina antesella), four endangered mussels (upland combshell,
Epioblasma metastriata; southern clubshell, Pleurobema decisum; ovate
clubshell, P. perovatum; and triangular kidneyshell, Ptychobranchus
greeni), and a threatened mussel (Alabama moccasinshell, Medionidus
acutissimus). In addition, several Category 2 candidate species from
the Service's animal notice of review published in the Federal Register
of November 21, 1991 (56 FR 58804) are also known from the Etowah River
system. These include a mussel (Tennessee heelsplitter, Lasmigona
holstonia), five fishes (rock darter, Etheostoma rupestre; freckled
darter, Percina lenticula; bronze darter, P. palmaris; lined chub,
Hybopsis lineapunctata; and frecklebelly madtom, Noturus munitus), and
at least three aquatic snails (spindle elimia, Elimia capillaris;
coldwater elimia, E. gerhardti; and rough hornsnail, Pleurocera
foremani). It is estimated that 35 of the potentially 50 freshwater
mussel species that once inhabited the Etowah River system have been
extirpated (Burkhead et al. 1992); several of these species are now
considered extinct. The Etowah River system at one time contained a
significant portion of the aquatic biodiversity of the upper Mobile
Basin.

Cherokee Darter

A small percid fish, the Cherokee darter is subcylindrical in
shape, and has a relatively blunt snout with a subterminal mouth. The
body shade is white to pale yellow. The side of adults is pigmented
with usually eight small dark olive black blotches that develop into
vertically elongate, slightly oblique bars in breeding adults,
especially in males. The back usually has eight small dark saddles and
intervening pale areas. The Cherokee darter has proven to be distinct
from the Coosa darter, E. coosae, a species with which it was
previously confused, by peak nuptial males never having five discrete
color bands in the spinous dorsal fin.
Cherokee darters inhabit small to medium size warm-water creeks of
moderate gradient, with predominately rocky bottoms. It is usually
found in shallow water in sections of reduced current, typically in
runs above and below riffles and at the ecotones of riffles and
backwaters. The Cherokee darter is associated with large gravel,
cobble, and small boulder substrates, and is uncommonly or rarely found
over bedrock, fine gravel, or sand. It is most abundant in stream
sections with relatively clear water and clean substrates (little silt
deposition). The Cherokee darter is intolerant of heavy to moderate
silt deposition. The Cherokee darter, like other members of the
subgenus Ulocentra, is intolerant of impoundment.
The Cherokee darter is endemic to the Etowah River system in north
Georgia, where it is primarily restricted to streams draining the
Piedmont physiographic province, and to a lesser extent, the Blue Ridge
physiographic province. The Cherokee darter occurs in about 20 small to
moderately large tributary systems of the middle and upper Etowah River
system. However, only a few sites contain healthy populations of this
species. The largest populations occur in northern tributaries upstream
of Allatoona Reservoir. Populations are smaller in tributaries draining
the southern portion of the system. The southern tributary systems tend
to drain areas exhibiting less relief and are on the average much more
degraded. Cherokee darter populations are found primarily above
Allatoona Reservoir. Downstream of Allatoona Dam, populations are
restricted to two tributary systems.
The Cherokee darter exhibits a disjunct and discontinuous
distribution pattern indicating fragmentation and isolation of
populations. The placement of Allatoona Reservoir in the middle Etowah
River system has caused much of the fragmentation of this species'
populations. One major tributary system in the upper Etowah system,
Amicalola Creek, apparently naturally lacks populations of Cherokee
darters, but contains a relatively close relative and also a narrow
endemic, the holiday darter, E. brevirostrum. The Cherokee darter is
allopatric (i.e., the ranges of the species do not overlap) with the
other two Ulocentra species in the watershed, the holiday darter and
Coosa darter. A formal description of the Cherokee darter is awaiting
publication (Bauer et al. in press).

Etowah Darter

The Etowah darter is a small-sized percid fish that is moderately
compressed laterally, and has a moderately pointed snout with a
terminal, obliquely angled mouth. The body ground shade is brown or
grayish-olive. The side is usually pigmented with 13 or 14 small dark
blotches just below the lateral line. The breast in nuptial males is
dark greenish-blue. The Etowah darter has proven distinct from the
greenbreast darter, E. jordani, a species with which it has previously
been confused, by the absence of red marks on the sides and anal fins
of male specimens.
The Etowah darter inhabits warm and cool, medium and large creeks
or small rivers that are moderate or high gradient with rocky bottoms.
It is found in relatively shallow riffles, with large gravel, cobble,
and small boulder substrates. The Etowah darter is typically associated
with the swiftest portions of shallow riffles, but occasionally adults
are taken at the tails of riffles. The sites having the greatest
abundance of Etowah darters had clear water and relatively little silt
in the riffles. The Etowah darter, like other members of the subgenus
Nothonotus, shuns pool habitats and is intolerant of impoundment.
The Etowah darter is endemic to the upper Etowah River system in
north Georgia, where it is restricted to the upper Etowah River
mainstem and two tributaries, Long Swamp and Amicalola Creeks. These
streams drain both the Blue Ridge and Piedmont physiographic provinces.
This distribution suggests habitat specialization; all streams
inhabited by this species are geographically adjacent in the most
upland portion of the river system. For a fish of moderate to large
creeks or small rivers, the Etowah darter has one of the most
restricted distributions in the southeast (Lee et al. 1980). The Etowah
darter has been formally described by Wood and Mayden (1993).
The Cherokee darter appeared as a category 2 species in the
Service's notice of review for animal candidates published in the
Federal Register of January 6, 1989 (54 FR 554) and November 21, 1991
(56 FR 58804). Category 2 species are taxa under review for listing,
but for which conclusive data on biological vulnerability and threat(s)
are not currently available to support proposed rules.
The Service commenced funding a status survey in 1989 to better
determine the status of the recently discovered Cherokee darter. After
field work had commenced, another undescribed fish was discovered in
the Etowah River system, the Etowah darter. The survey was modified to
address the population status of both these undescribed darters. A
final report was received on March 30, 1993 (Burkhead 1993), providing
sufficient information on biological vulnerability and threats to
support a proposed rule to classify the Cherokee darter as threatened
and the Etowah darter as endangered.
On April 6, 1993, the Service notified potentially affected Federal
and State agencies by mail that a status review was being conducted for
the Cherokee darter and Etowah darter. Two comments were received
concerning this notification. The U.S. Forest Service stated that it
was unlikely Forest Service lands harbored suitable habitat for the two
darter species. They also noted that future Forest Service activities
in the Etowah River watershed were expected to decrease, and that it
was unlikely these activities would produce any noticeable siltation
effects on downstream populations of the Cherokee darter and Etowah
darter. The Environmental Protection Agency commented on locating
specific watersheds having high cumulative non-point source stream
impacts for potential restoration work. This information would be
useful in the recovery of the Cherokee darter and Etowah darter.
Neither agency had objections to the potential listing of these
species.

Summary of Comments and Recommendations

In the October 18, 1993, proposed rule (58 FR 53696), and through
associated notifications, all interested parties were requested to
submit factual reports and information that might contribute to the
development of a final rule for the Cherokee darter and Etowah darter.
Appropriate Federal and State agencies, county governments, scientific
organizations, and interested parties were contacted by letter dated
November 1, 1993, and were requested to comment. Legal notices were
published in The Atlanta Journal/The Atlanta Constitution, Atlanta,
Georgia, on October 31, 1993, and in The Marietta Daily Journal,
Marietta, Georgia, on November 5, 1993.
In response to a formal request by the Cherokee County Board of
Commissioners, a public hearing on the Service's proposal to list the
Cherokee darter and the Etowah darter as threatened and endangered,
respectively, was held on January 12, 1994, at the Cherokee County
Administrative Building, Canton, Georgia. The comment period was
extended until January 24, 1994. A notice of the hearing and comment
period extension was published in the Federal Register on December 16,
1993 (58 FR 65696) and in the Cherokee Citizen, Canton, Georgia, on
December 29, 1993.
Seven written and 17 oral comments (fourteen at the public hearing)
were received regarding the proposed listing. Federal agencies
providing written comments included two agencies in the U.S. Department
of Agriculture, Animal Damage Control and Soil Conservation Service,
and the U.S. Army Corps of Engineers (Corps). The Animal Damage
Control, Coosa River Basin Initiative, and Georgia Environmental
Organization supported the listing; most of the other commenters did
not. Following is a summary of the comments, concerns, and questions
(referred to as ``Issues'' for the purpose of this summary) expressed
in writing and orally. Issues of similar content have been grouped
together. These issues and the Service's response to each are presented
below.
Issue 1: Several commenters questioned the validity of both the
Cherokee darter and Etowah darter as taxonomically distinct species.
Response: These two fishes were recently recognized as species new
to science by prominent ichthyologists highly knowledgeable of fish in
southeastern United States streams. A few years prior to the status
survey for these species in the Etowah River system (see response to
Issue 5 below), the Cherokee darter had been considered the Coosa
darter (Etheostoma coosae) and the Etowah darter had been considered
the greenbreast darter (E. jordani). Status survey collections in the
Etowah River system provided material sufficient for ichthyologists to
determine that the Cherokee darter and Etowah darter were indeed valid
biological entities distinct from the species they had heretofore been
confused with. Specifically, unique color differences in nuptial
(breeding) males of both species were discovered. Publication of a
species description in scientific journal and peer review by the
scientific community is the primary safeguard to ensure that species
descriptions are based on sound scientific information. Therefore, the
Service accepts the biological basis of species validity provided in
the forthcoming scientific description and distinction of the Cherokee
darter from the Coosa darter (Bauer et al. in press), and the published
scientific description and distinction of the Etowah darter from the
greenbreast darter (Wood and Mayden, 1993).
Issue 2: One commenter wanted clarification as to the timing of the
determination of the Cherokee darter as a valid species in relation to
the impoundment of Allatoona Reservoir, and insinuated that since the
Cherokee darter was not formally recognized as a species at the time of
reservoir construction, the preimpoundment records for populations of
the Cherokee darter alluded to in the proposed rule referred actually
to the Coosa darter.
Response: As stated in the response to Issue 1 above, these two
species were recognized as new species within the past few years, and
decades after Allatoona Reservoir was completed in the 1950's. However,
the Service is not indicating that these two fishes evolved into
separate species since construction of this reservoir. The evolution of
new species is a slow process that takes thousands or millions of
years. There is no scientific basis to suggest the Cherokee darter or
the Etowah darter evolved since the construction of Allatoona
Reservoir, or that this reservoir played any part in the evolution of
these species. Therefore, the preimpoundment records of Cherokee
darters stated in the proposed rule pertain to that species, and do not
refer to populations of the Coosa darter.
Issue 3: Some commenters thought that since the Cherokee County
Water and Sewerage Authority (County) had taken the habitat
requirements of the federally threatened amber darter (Percina
antesella) into consideration in the design of the proposed dam
impounding the Yellow Creek Reservoir, that the habitat requirements of
the Cherokee darter or Etowah darter could also be considered having
been addressed.
Response: There are over 150 recognized species of darters in 4
genera and approximately two dozen subgenera. Darters occupy a wide
variety of habitats in rivers, lakes, and swamps from the Appalachian
Mountains to near sea level throughout much of eastern North America.
The Etowah River system alone harbors at least 11 species of darters.
Each species inhabits discreet portions of the drainage and specific
habitats within its streams. The habitat requirements of the Cherokee
darter differ significantly from those of the amber darter. However,
the habitat requirements of the amber darter are similar, but not
identical, to that of the Etowah darter. The habitat requirements of
the Cherokee darter have therefore not been taken into consideration
during the design of the proposed dam.
Issue 4: Numerous commenters questioned the timing of the proposed
rule to provide protection for the Cherokee darter and Etowah darter in
relation to the proposed Yellow Creek Reservoir project, and one
commenter made the same assertion concerning a proposed regional
connector highway (Atlanta beltway).
Response: The Service is required by the Act to protect any species
that is in danger of extinction. This determination is based upon the
best available biological information. When the Service first learned
of the occurrence of the undescribed Cherokee darter, a narrowly
distributed and potentially imperilled fish in the Etowah River system,
a survey was funded to determine its status. That survey was initiated
during the fall of 1989. The following summer, the Etowah darter was
determined to be a distinct and highly localized species, and the
survey continued for both darters until 1992. When information was
obtained on the population status and distribution of the Cherokee
darter and Etowah darter sufficient to support federal listing of these
species, a rule was proposed to afford them protection under the Act.
The timing of the proposed rule to list these two fishes was therefore
coincidental with any proposed construction projects.
Issue 5: Several commenters questioned the extent of the status
survey for the Cherokee darter and Etowah darter and the possibility
that other area streams may harbor populations of these species.
Response: From the fall of 1989 to summer 1992, a survey of the
Etowah River system was funded by the Service to determine the
population status and total distribution of the Cherokee darter and
Etowah darter (see response to Issue 4 above). A total of 146
collections at 141 sites throughout the Etowah River system were made
for these two fish. Although sites outside the Etowah River system were
not surveyed for the Cherokee darter and Etowah darter, the Service
believes that the fish faunas in surrounding drainages are adequately
known to assure that these two darters are not present. The discovery
of additional populations of one or both species within the Etowah
River system is possible. However, based on the extensive status survey
conducted for the Cherokee darter and Etowah darter, the Service
believes no further surveys are warranted before listing these species.
Issue 6: Numerous commenters were concerned with the potential
economic impact that this listing proposal might have on completion of
the proposed Yellow Creek Reservoir project, and one commenter had the
same concerns regarding the proposed Atlanta beltway.
Response: The Service is required by the Act to use the best
available biological information in the assessment of determining
whether Federal protection under the Act is warranted for a species.
The economic impacts resulting from endangered species protection are
not to be considered when proposing to list a species under the Act.
Section 7 of the Act requires Federal agencies to ensure that their
actions are not likely to jeopardize the continued existence of any
listed species (see the ``Available Conservation Measures'' section of
this rule and the response to Issue 7 below). The Corps has consulted
with the Service regarding the potential effects this federally
permitted reservoir project might have on the amber darter, which
occurs in the Etowah River mainstem both upstream and downstream of the
Yellow Creek confluence. The County conducted a study addressing issues
pertaining to the amber darter and its habitat and has made
modifications to the dam that should minimize any impacts upon this
federally endangered fish. The Service is currently in conference with
the Corps regarding the dam's potential impacts upon the Cherokee
darter and Etowah darter. As mentioned elsewhere (see response to Issue
3 above), the habitat requirements of the Etowah darter are similar to
that of the amber darter. The design changes of the proposed dam that
addressed the amber darter may possibly also protect the Etowah darter
and its habitat. However, the Cherokee darter, which has a population
in Yellow Creek very near the dam site, has different environmental
requirements. The County has proven that it was willing to work with
the Corps and the Service in addressing issues related to the amber
darter. The Service commends these efforts by the County, and is
confident that a similar agreement can be reached for Cherokee darter
issues. The Service's Brunswick, Georgia, Field Office is currently
working with the Corps and County to resolve specific issues relating
to the Cherokee darter. Additionally, for the proposed Atlanta beltway
project, the Federal Highway Administration must consult with the
Service's Brunswick Field Office regarding potential impacts to the
Cherokee darter and Etowah darter during the planning and construction
phases.
Issue 7: One commenter requested the Service prepare a ``takings
analysis'' under Executive Order 12630 that assesses the impacts of the
listing of the Cherokee darter and the Etowah darter on private
property rights.
Response: The Attorney General has issued guidelines to the
Department of the Interior (Department) on the implementation of
Executive Order 12630: Governmental Actions and Interference with
Constitutionally Protected Property Rights. Under these guidelines, a
special rule applies when an agency within the Department is required
by law to act solely upon specified criteria that leave the agency no
discretion. In enacting the Act, Congress required the Department to
list species based solely upon scientific and commercial data
indicating whether they are in danger of extinction. The Service is
prohibited by law from withholding a listing based on concerns
regarding economic impact and is required to act, with appropriate
public notice, under strict time tables. Any failure to comply may
subject the agency to legal action. Accordingly, the provisions of the
Attorney General's guidelines relating to nondiscretionary actions
clearly are applicable to the determination of threatened status for
the Cherokee darter and endangered status for the Etowah darter, and
Taking Implication Assessments under Executive Order 12630 cannot be
considered in making this administrative decision. Since the Act
precludes consideration of economic factors during the listing process,
the Service's policy is to not consider taking implications at this
time.
Issue 8: Several commenters were concerned with potential impacts
the listing of the Cherokee darter and the Etowah darter might have on
normal agricultural activities and those of other private property
owners in the watershed.
Response: Based on the results of listing other aquatic organisms
in north Georgia streams, the Service does not believe there will be
any major impact to these activities as a result of listing these two
fishes. Concerning the use of agricultural chemicals, the Service
consults with the Environmental Protection Agency to determine if
pesticides they register are likely to jeopardize the continued
existence of listed species. When the use of a particular chemical is
likely to jeopardize a listed species, the use of that chemical is
restricted. Thus, it is possible that the use of a pesticide could be
restricted to avoid jeopardizing either of these darters. Any other new
restrictions that might be placed on farmers or other local landowners
would be due to activities involving Federal agencies, which must
review their actions and determine, under Section 7 of the Act, if such
actions would adversely affect these species (see the ``Available
Conservation Measures'' section of this rule and the response to Issue
6 above). The Service stresses to landowners the importance of
maintaining development-free streamside buffer zones to protect stream
habitat and water quality upon which the Cherokee darter and Etowah
darter depend. Maintaining such buffers should avoid many potential
impacts to these two fishes.
Issue 9: One commenter stated that reservoirs act as sediment
traps, and suggested that dams may actually improve habitat conditions
in downstream areas.
Response: The Service concurs that dams may act as traps of
alluvial sediments that are conducted down stream beds and overbank
areas during flood conditions. However, conditions below Allatoona
Reservoir, despite an obvious reduction in the bed load and other
transported sediments, have deteriorated since reservoir construction
several decades ago. Riverine habitat has been altered due primarily to
the disruption of the normal flow and temperature regime in the lower
Etowah River below Allatoona Dam. Dams should not be perceived as
beneficial sediment traps; rather efforts should be made on a
watershed-wide basis to abate sources of silt and other sediments
resulting from poor landuse practices from entering streams in the
first place.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, the Service has determined that the Cherokee darter and
Etowah darter should be classified as threatened and endangered,
respectively. Procedures found at Section 4(a)(1) of the Act (16 U.S.C.
1531 et seq.) and regulations (50 CFR part 424) promulgated to
implement the listing provisions of the Act were followed. A species
may be determined to be an endangered or threatened species due to one
or more of the five factors described in Section 4(a)(1). These factors
and their application to the Cherokee darter (Etheostoma (Ulocentra)
sp.) and the Etowah darter (Etheostoma etowahae) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The Cherokee darter and Etowah
darter are both endemic to the Etowah River system in north Georgia
(Burkhead 1993). These species have been rendered vulnerable to
extinction by significant loss of habitat within their restricted range
in the Etowah River system. The primary causes of habitat loss in the
Etowah River system result from impoundments, siltation, point source
and nonpoint source pollution which includes, but is not limited to,
municipal and industrial waste discharges, agricultural runoff from
crop monoculture and poultry farms, poultry processing plants, and
silvicultural activities. Much non-agricultural and non-silvicultural
habitat degradation in the watershed can be attributed to increased
urbanization in the Atlanta metropolitan area. All such forms of
habitat degradation and pollution disrupt the aquatic ecosystem,
particularly impacting benthic (bottom) habitat. Certain pollutants may
be particularly harmful in cumulative concentrations or if synergistic
interactions with other pollutants or chemicals occur.
Impoundments have destroyed a significant portion of the free-
flowing stream habitat in which the Cherokee darter lives, and to a
lesser extent they have impacted the Etowah darter as well. Based on
museum records, at least five preimpoundment populations of the
Cherokee darter were extirpated by the inundation of the 4,800 hectare
(11,856 acre) Allatoona Reservoir, which was completed in 1955.
Undoubtedly other, undocumented, Cherokee darter populations were
destroyed by the filling of Allatoona Reservoir. The lower portions of
some of the tributary systems that harbor populations of the Cherokee
darter are inundated by Allatoona Reservoir, isolating these
populations from other populations in adjacent tributaries. These
tributaries include Butler, Shoal, and Stamp Creeks.
Besides Allatoona Reservoir, numerous small impoundments and ponds
are scattered throughout the range of the Cherokee darter and Etowah
darter. Impoundments directly destroy stream habitat by converting
free-flowing streams to man-made lakes and ponds and by causing
population isolation. Furthermore, small impoundments are numerous
enough in the Etowah system to have a negative effect on both these
species by causing population fragmentation and isolation, thereby
blocking genetic interchange. Impoundments also alter the thermal
regimen of the stream sections immediately below the dam and can cause
community shifts favoring centrarchid fishes (Brim 1991), potential
predators on both Cherokee darters and Etowah darters. The Yellow Creek
population of the Cherokee darter is directly threatened by a proposed
water supply impoundment planned by the Cherokee County government.
During low flow periods, 30 percent of the flow in the Etowah River
above a known Etowah darter site will be comprised of water from Yellow
Creek reservoir. Although the effects of this flow augmentation in the
Etowah River are not known, the change in water quality and temperature
could potentially have a negative impact on the Etowah darter.
Erosion from poor land use practices causes extensive topsoil
erosion and subsequent siltation of stream bottoms. Sources of
siltation include timber clearcutting, clearing of riparian vegetation,
and those construction, mining, and agricultural practices that allow
exposed earth to enter streams. Light to moderate levels of siltation
are ubiquitous in many streams of the Etowah River system which have
populations of the Cherokee darter and Etowah darter. Siltation
problems are severe in many tributaries that have or probably had
populations of the Cherokee darter, including Allatoona Creek, the
Little River system, Settingdown Creek, Pumpkinvine Creek, and portions
of Shoal Creek (Cherokee County), Sharp Mountain Creek, Long Swamp
Creek, and Raccoon Creek. Siltation and dust from marble quarries in
Pickens County are also major problems in Long Swamp Creek, the only
known site where the Cherokee darter and Etowah darter are found
together. A rock quarry has been proposed for Stamp Creek in Bartow
County. If permitted, this quarry may have an adverse effect on the
Stamp Creek Cherokee darter population.
The extreme isolation or absence of populations of the Cherokee
darter in Settingdown, Allatoona, and Raccoon Creeks and the Little
River also strongly suggests localized extirpation of populations.
These intermediate streams probably once supported populations of the
fish. Much of the Little River system is heavily affected by large silt
and bed loads; the remaining fish fauna is depauperate and at many
sites dominated by species tolerant of degraded habitats.
The Cherokee darter and Etowah darter are obligate benthic species
living, foraging, and spawning on the stream bottom. Hence, their well-
being is directly tied to benthic habitat quality. Negative effects of
silt on benthic fishes were summarized by Burkhead and Jenkins (1991).
Silt reduces or destroys habitat heterogeneity and primary
productivity, increases fish egg and larval mortality, abrades
organisms, and alters, degrades, and entombs macrobenthic communities.
The geological strata drained by the Etowah River, particularly in the
middle and upper portion of the system, contain micaceous schist. The
erosion of this substrata adds an extremely abrasive mica component to
the silt which must render this silt even more noxious to benthic
organisms. Current State and Federal regulations preventing silt from
entering streams are lacking, inadequate, or not rigorously enforced.
The current rate of development in the counties surrounding Atlanta
is very high. The most rapid development appears to be in Gwinnett,
Cobb and Fulton Counties, but it is also high in Cherokee County, which
is in the heart of the Cherokee darter's current range. The effects of
creeping urbanization may be seen as far away as Dawson County, where
the majority of Etowah darter populations, as well as some Cherokee
darter populations, are known. One of the principal concerns to the
continued existence of the Cherokee darter and Etowah darter is the
trend of converting farmland into localized subdivisions in areas
relatively remote from Atlanta. Associated with increased development
and land clearing is increased siltation from erosion, accelerated
runoff, and transport of pollutants into the Etowah River system.
The tributaries harboring the Cherokee darter and Etowah darter are
crossed by numerous road and railroad bridges. These stream crossings
are potential sites for accidents which could spill toxic material into
streams. Spills of toxic chemicals at such crossings could cause
catastrophic fish kills and local extirpation of these species. The
high number of bridge crossings over Cherokee darter and Etowah darter
streams increases the probability that such an accident will occur in
the future.
Attending the urbanization associated with the growth of the
Atlanta metropolitan area is a proposed bypass that would
circumnavigate Atlanta to the northwest, connecting Interstate 75 with
Georgia State Route 371. The bypass would cross several Cherokee darter
streams in portions of Forsyth, Cherokee, and Bartow Counties. It will
also traverse the Etowah River at the lower portion of the Etowah
darter's range. Bridge construction sites, some located in the upper
Etowah River watershed, would be potential sources of sedimentation to
Cherokee and Etowah darter habitat. In addition, since this roadway is
not being planned as a limited access highway, the project will foster
development not just at major road intersections, as occurs with
interstate highways, but along the entire corridor.
It has been reported that 75 percent of Georgia's landfills will
reach capacity in five years (The Atlanta Journal/The Atlanta
Constitution, February 23, 1992). Several landfill sites have been
proposed within the range of the Cherokee darter; one such site occurs
between two Cherokee darter streams: Riggins and Edward Creeks,
Cherokee County. On the banks of the upper Etowah River, within the
known limited range of the Etowah darter, the Sanitfill Pine Bluff
landfill is being constructed. Refuse may ultimately be received from
as far away as New York. When this facility reaches its full potential,
it will purportedly be the largest landfill in the eastern United
States. While modern landfills are purportedly designed to contain
runoff, it seems doubtful that such landfills would actually retain
barrier integrity for decades to come.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. In general, small species of fish, such as the
Cherokee darter and Etowah darter, which are not utilized for either
sport or bait purposes, are unknown to the general public. Therefore,
take of these species by the general public has not been a problem.
Publication of this rule will inform the general public as to the
presence of these two darters in the Etowah River system. Considering
the restricted distribution and small populations of the Etowah and
Cherokee darters, it would be easy for vandals or unscrupulous
collectors to eliminate or seriously impact populations in specific
stream reaches if their exact location were known. The distribution of
these species has therefore been described only in general terms for
the purposes of this rule. Federal protection will serve to minimize
adverse population impacts from illegal take, but the Act's penalties
are not likely to act as a complete deterrent to such actions.
C. Disease or predation. Predation upon the Cherokee darter and
Etowah darter undoubtedly occurs. However, there is no evidence to
suggest that predation threatens these species, except possibly in
altered stream reaches immediately below dams.
D. The inadequacy of existing regulatory mechanisms. The Official
Code of Georgia Annotated 27-2-12 prohibits the taking of these fish
without a state collecting permit. Federal listing provides protection
under Section 9 of the Act by requiring Federal permits for taking the
Cherokee darter and Etowah darter. Additional protection is gained
under Section 7 of the Act by requiring Federal agencies to consult
with the Service when projects they fund, authorize, or conduct may
affect these species.
E. Other natural or manmade factors affecting its continued
existence. The range of the Cherokee darter has been fragmented, and a
significant portion of the middle Etowah River system has been
permanently altered by Allatoona Reservoir. The streams inhabited by
the Cherokee darter and Etowah darter exhibit, on average, moderate to
heavy degradation from poor land use practices and small impoundments.
These strong negative forces have caused local extirpation of both
Cherokee darter and Etowah darter populations and have induced range
fragmentation and subsequent isolation of the Cherokee darter into
small populations. Genetic diversity has subsequently been lost due to
these population losses. The genetic diversity of all populations may
be needed to provide the species enough genetic variability to adapt to
environmental change and thus assure long-term viability. The
restricted distribution of both the Cherokee darter and Etowah darter
also makes populations vulnerable to extirpation from catastrophic
events, such as an accidental toxic chemical spill. Range fragmentation
and loss of genetic diversity, independently and in concert, clearly
threaten the continued existence of these species.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by both darters in determining to make this rule
final. Based on this evaluation, the preferred action is to list the
Cherokee darter and Etowah darter as threatened and endangered species,
respectively. The Cherokee darter is now known from approximately 20
tributary systems of the Etowah River, but healthy populations are
known from just a few sites. The Etowah darter is known from only the
upper Etowah River mainstem and two tributary systems. Both species are
restricted to the Etowah River system in north Georgia. These fish and
their benthic habitat have been, and continue to be, impacted by range
reduction, isolation by impoundment, and general habitat destruction.
Despite its wider distribution and greater number of known populations,
the Cherokee darter appears to have more of its habitat threatened by
these factors, which have already resulted in a higher level of
population fragmentation and isolation relative to the Etowah darter.
The restricted distribution of these two species also makes localized
populations susceptible to catastrophic events. Because of these
factors, endangered appears the most appropriate status for the Etowah
darter and threatened appears most appropriate for the Cherokee darter.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary propose critical
habitat at the time a species is determined to be endangered or
threatened. The Service's regulations (50 CFR 424.12(a)(1)) state that
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 activity and the 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.
The Service finds that designation of critical habitat is not prudent
for these species. Such a determination would result in no known
benefit to these species, and designation of critical habitat could
further threaten them.
Section 7(a)(2) and regulations codified at 50 CFR part 402 require
Federal agencies to ensure, in consultation with and with the
assistance of the Service, that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat,
if designated. (See ``Available Conservation Measures'' section for a
further discussion of Section 7.) As part of the development of this
final rule, Federal and State agencies were notified of the darters'
general distribution, and they were requested to provide data on
proposed Federal actions that might adversely affect the two species.
Should any future projects be proposed in areas inhabited by these
fishes, the involved Federal agency will already have the general
distributional data needed to determine if the species may be impacted
by their action; and if needed more specific distributional information
would be provided.
Regulations promulgated for implementing Section 7, referenced
above, provide for both a jeopardy standard, based on listing alone,
and for a destruction or adverse modification standard, in cases where
critical habitat has been designated. The Cherokee and Etowah darters
occupy very restricted stream reaches. Any significant adverse
modification or destruction of their habitat would likely jeopardize
their continued existence. Under these conditions the two standards are
essentially equivalent. Therefore, no additional protection for the
species would accrue from critical habitat designation that would not
also accrue from listing these species. Once listed, the Service
believes that protection of their habitat can be accomplished through
the Section 7 jeopardy standard, and through Section 9 prohibitions
against take.
These two fish are very rare. Therefore, taking for scientific
purposes and private collections could pose a threat to their continued
existence if site specific information were released to the general
public. The publication of critical habitat maps in the Federal
Register and local newspapers and other publicity accompanying critical
habitat designation could increase the collection threat and also
increase the potential for vandalism during the often controversial
critical habitat designation process. The potential for future habitat
disruption within one or both of these species' ranges resulting from
the rapidly expanding Atlanta metropolitan area makes designation of
critical habitat potentially more contentious and controversial,
increasing the possibility for vandalism to occur. The locations of
these species' populations have consequently been described only in
general terms in this rule. Any existing precise locality data would be
available to appropriate Federal, State, and local governmental
agencies from the Service office described in the ADDRESSES section;
from the Service's Brunswick Field Office, Federal Building, Room 334,
801 Gloucester Street, Brunswick, Georgia 31520; and from the Georgia
Department of Natural Resources, and Georgia Natural Heritage Program.
For the foregoing reasons the Service believes that critical
habitat designation is not prudent for these species, and that their
protection can be adequately accomplished through the Section 7
jeopardy standard and Section 9 prohibitions against take.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by Federal, State, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires that recovery actions be carried out for all listed species.
The protection required of Federal agencies and the prohibitions
against taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
Federal involvement is expected to include the Environmental
Protection Agency through the Clean Water Act's provisions for
pesticide registration and waste management actions. The Corps of
Engineers will consider these species in project planning and
operation, and during the permit review process. The Federal Highway
Administration will consider impacts of federally funded bridge and
road construction projects when known habitat may be impacted.
Continuing urban development within the Etowah River system may involve
the Farmers Home Administration and their loan programs. The Soil
Conservation Service will consider the species during project planning
and under their farmer's assistance programs. The Forest Service will
consider downstream impacts to habitat of the Etowah darter when
planning or implementing silvicultural, recreational, or other programs
in the headwaters of Amicalola Creek and the extreme upper portion of
the Etowah River mainstem occurring in the Chattahoochee National
Forest. It has been the experience of the Service that nearly all
Section 7 consultations can be resolved so that the species is
protected and the project objectives are met.
The Act and implementing regulations found at 50 CFR 17.21 for
endangered species, and 17.21 and 17.31 for threatened species set
forth a series of general prohibitions and exceptions that apply to all
endangered and threatened wildlife. These prohibitions, in part, make
it illegal for any person subject to jurisdiction of the United States
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
or collect; or attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
also is illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered or threatened wildlife species under certain
circumstances. Regulations governing permits are at 50 CFR 17.22,
17.23, and 17.32. Such permits are available for scientific purposes,
to enhance the propagation or survival of the species, and/or for
incidental take in connection with otherwise lawful activities. For
threatened species, there are also permits for zoological exhibition,
educational purposes, or special purposes consistent with the purpose
of the Act. In some instances, permits may be issued for a specified
time to relieve undue economic hardship that would be suffered if such
relief were not available. Since these species are not in trade, such
permit requests are not expected.
It is the policy of the Service (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 the listing on proposed and ongoing activities within
a species' range. The Service is not aware of any otherwise lawful
activities being conducted by the public that will be affected by this
listing and result in a violation of section 9.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Jacksonville Office (see ADDRESSES section). Requests for
copies of the regulations concerning listed animals and general
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Southeast Regional Office, Ecological
Services Division, Threatened and Endangered Species, 1875 Century
Boulevard, Atlanta, Georgia 30345-3301 (Telephone 404/679-7099,
Facsimile 404/679-7081).

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as
defined under the authority of the National Environmental Policy Act of
1969, need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Endangered Species Act of 1973, as
amended. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).

References Cited

Bailey, R.M., and D.A. Etnier. 1988. Comments on the subgenera of
darters (Percidae) with descriptions of two new species from the
southeastern United States. Misc. Pub. Univ. Michigan Mus. Zool.
175:1-48.
Bauer, B.H., D.A. Etnier, and N.M. Burkhead. In press. Etheostoma
(Ulocentra) sp. (Osteichthyes: Percidae), a new darter from the
Etowah River system in Georgia. Bull. Alabama Mus. Nat. Hist.
Brim, J. 1991. Coastal Plain fishes: floodplain utilization and the
effects of impoundments. Unpublished masters thesis, Dept. Biol.,
Univ. South Carolina, Columbia.
Burkhead, N.M. 1993. Status survey for two freshwater fishes, the
Cherokee and Etowah darters (Pisces, Percidae), endemic to the
Etowah River system of north Georgia. Final report submitted to the
U.S. Fish and Wildlife Service, Jacksonville Field Office, Florida.
25 pp.
Burkhead, N.M., and R.E. Jenkins. 1991. Fishes. Pp. 321-409, in: K.
Terwilliger (coordinator). Virginia's endangered species. McDonald
and Woodward Pub. Co., Blacksburg, Virginia.
Burkhead, N.M, J.D. Williams, and B.J. Freeman. 1992. A river under
siege. Georgia Wildlife 2(2):10-17.
Lee, D.S., C.R. Gilbert, C.H. Hocutt, R.E. Jenkins, D.E. McAllister,
and J.R. Stauffer, Jr. 1980. Atlas of North American freshwater
fishes. North Carolina State Mus. Nat. Hist., Raleigh.
Wood, R.M., and R.L. Mayden. 1993. Systematics of the Etheostoma
jordani species group (Teleostei: Percidae), with descriptions of
three new species. Bull. Alabama Mus. Nat. Hist. 16:29-44.

Author

The primary author of this final rule is Robert S. Butler (see
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical
order under ``FISHES'', to the List of Endangered and Threatened
Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------- Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes

* * * * * * *
Darter, Cherokee......... Etheostoma (Ulocentra) U.S.A. (GA)............. Entire.................. T 569 NA NA
sp.

* * * * * * *
Darter, Etowah........... Etheostoma etowahae..... U.S.A. (GA)............. Entire.................. E 569 NA NA

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

Dated: November 23, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-31195 Filed 12-19-94; 8:45 am]
BILLING CODE 4310-55-P