Endangered and Threatened Wildlife and Plants; Endangered Species Status for Black Warrior Waterdog and Designation of Critical Habitat, 257-284 [2017-28386]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 83, Number 2 (Wednesday, January 3, 2018)]
[Rules and Regulations]
[Pages 257-284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28386]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R4-ES-2016-0029 and FWS-R4-ES-2016-0031; 4500030113]
RIN 1018-BA78; RIN 1018-BA79


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Black Warrior Waterdog and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act of 1973 
(Act), as amended for the Black Warrior waterdog (Necturus alabamensis) 
and designate critical habitat. The effect of this regulation will be 
to add this species to the List of Endangered and Threatened Wildlife 
and designate critical habit for this species. In total, approximately 
673 kilometers (420 miles) of streams and rivers in Blount, Etowah, 
Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston 
Counties, Alabama, fall within the boundaries of the critical habitat 
designation.

DATES: This rule is effective February 2, 2018.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/daphne/. Comments, 
materials, and documentation that we considered in this rulemaking will 
be available by appointment, during normal business hours, at: U.S. 
Fish and Wildlife Service, Alabama Ecological Services Field Office, 
1208 Main Street, Daphne, AL 36526; by telephone 251-441-5184; or by 
facsimile 251-441-6222.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for the critical 
habitat designation and are available at https://www.regulations.gov at 
Docket No. FWS-R4-ES-2016-0031, and at the Alabama Ecological Services 
Field Office (https://www.fws.gov/alabama) (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we 
developed for this final rule will also be available at the U.S. Fish 
and Wildlife Service website and Field Office set out above, and may 
also be included in the preamble and at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor, 
U.S. Fish and Wildlife Service (see ADDRESSES above). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 
    This document consists of: (1) A final rule to list the Black 
Warrior waterdog as endangered and (2) a final critical habitat 
designation for the Black Warrior waterdog.

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, a 
species may warrant protection through listing if it is endangered or 
threatened throughout all or a significant portion of its range. 
Listing a species as an endangered or threatened species can only be 
completed by issuing a rule.
    What this rule does. This rule will finalize the listing of the 
Black Warrior waterdog (Necturus alabamensis) as an endangered species 
and will finalize designation of critical habitat for the species under 
the Act. We are designating critical habitat for the species in four 
units, on public and private property totaling 673 kilometers (420 
miles) of streams and rivers in Blount, Etowah, Jefferson, Lawrence, 
Marshall, Tuscaloosa, Walker, and Winston Counties, Alabama. This rule 
adds the Black Warrior waterdog to the List of Endangered and 
Threatened Wildlife in title 50 of the Code of Federal Regulations at 
50 CFR 17.11(h) and adds critical habitat for this species to 50 CFR 
17.95(d).
    The basis for our action. Under the Act, we may determine that a 
species is endangered or threatened based on any of the following 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

[[Page 258]]

predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence. We 
have determined that the Black Warrior waterdog is endangered by 
habitat loss and water quality degradation resulting from point source 
and non-point source pollution, urbanization, legacy effects of past 
forestry and other land use practices, surface coal mining, 
sedimentation, and impoundments.
    Under the Act, if we determine that any species is a threatened or 
endangered species we must, to the maximum extent prudent and 
determinable, designate critical habitat. Section 4(b)(2) of the Act 
states that the Secretary shall designate and make revisions to 
critical habitat on the basis of the best available scientific data 
after taking into consideration the economic impact, national security 
impact, and any other relevant impact of specifying any particular area 
as critical habitat. The Secretary may exclude an area from critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless he determines, based on the best scientific data available, that 
the failure to designate such area as critical habitat will result in 
the extinction of the species.
    Economic analysis. We prepared an economic analysis of the impacts 
of designating critical habitat. We published an announcement and 
solicited public comments on the draft economic analysis (81 FR 69475, 
October 6, 2016). The analysis found no significant economic impact of 
the designation of critical habitat.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on our listing proposal. We also considered all comments and 
information received from the public during the comment period.

Previous Federal Action

    Please refer to the proposed listing rule (81 FR 69500) and the 
proposed designation of critical habitat (81 FR 69475) for the Black 
Warrior waterdog, both published October 6, 2016, for a detailed 
description of previous Federal actions concerning this species.

Summary of Comments and Recommendations

    In the proposed listing and critical habitat rules published on 
October 6, 2016, we requested that all interested parties submit 
written comments on the proposals by December 5, 2016. We also 
contacted appropriate Federal and State agencies, scientific experts 
and organizations, and other interested parties and invited them to 
comment on the proposal. Newspaper notices inviting general public 
comment were published in the following: AL.com; The Blount Countian; 
The Cullman Times; Daily Mountain Eagle; Decatur Daily; Moulton 
Advertiser; Northwest Alabamian; and The Times Record. We did not 
receive any requests for a public hearing.

Peer Reviewer Comments

    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we solicited expert opinions from five 
knowledgeable individuals with scientific expertise that included 
familiarity with the species and the geographic region in which the 
species occurs, the species' habitat and biological needs, and 
conservation biology principles. We received responses from four of the 
peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Black Warrior waterdog. The peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final listing and 
critical habitat rule. Peer reviewer comments are summarized below and 
incorporated into the final rule as appropriate.
    (1) Comment: Two reviewers stated that one of the proposed units, 
Lye Branch (Tuscaloosa County), should be removed from the critical 
habitat designation since the specimens collected there were not Black 
Warrior waterdog (Necturus alabamensis) but another species of 
Necturus, the Gulf Coast waterdog (N. beyeri).
    Our Response: Based on the information provided, we have removed 
the Lye Branch unit from the designation in our critical habitat final 
rule. See Summary of Changes from the Proposed Rule, below, for more 
information.
    (2) Comment: Several peer reviewers recommended that additional 
units be included in the critical habitat designation. Three peer 
reviewers recommended adding Clear Creek (Winston County), and two of 
those peer reviewers also recommended the addition of Turkey Creek 
(Jefferson County) to the critical habitat designation. One peer 
reviewer recommended ``other headwater streams, as not to overlook 
streams potentially important to the recovery.'' All three peer 
reviewers noted that these other areas have suitable habitat and 
potentially support (or may in the future support) the species and 
would be crucial to the recovery of the Black Warrior waterdog.
    Our Response: The streams mentioned by the commenters are 
encompassed within the species' historical range, the upper Black 
Warrior Basin. However, the Black Warrior waterdog has never been 
documented in these headwater streams this far up in the basin, 
although some lower segments of these streams may contain suitable 
habitat. Since they do not provide connectivity between occupied sites 
for genetic exchange, and therefore it is unknown if a population of 
the species could be successfully reestablished in an area that never 
had waterdogs, we determined that these sites were not essential to the 
conservation of the species (see response to comment 11 below).
    (3) Comment: One Federal agency and some public commenters 
expressed concern about the use of eDNA. The concern relates to the 
potential for ``false positives'' and potential limitations of the use 
of eDNA as a surrogate for species occurrence, as well as whether the 
use of eDNA warrants consideration as the best science to support both 
listing and designating critical habitat.
    Our Response: Positive eDNA detections indicate that the DNA of the 
target species was present in the water sample (at the collection 
location), but it does not definitively reveal whether the species is 
still present. Studies on decay rate of eDNA indicate that it remains 
detectable for 2-3 weeks following release (Dejan et al. 2011), and, in 
using this guideline, we assume that the organismal source (Black 
Warrior waterdog) was present in the stream within the prior 2-3-week 
time window. Information that eDNA cannot provide is abundance of 
target species, whether the eDNA was derived from a living or dead 
individual(s), or if the population is viable.
    We recognize that detection of eDNA does not confirm species' 
current presence with absolute certainty, because the target species 
may have died or moved from the sampled area. Additionally, a false 
positive, assuming presence of the targeted live organism at a site 
when it is absent, can occur if the eDNA was transported to the site 
via a

[[Page 259]]

flood, or transferred between drainages by human collectors. However, 
because eDNA persists for only a few weeks, the frequency of such false 
positives is likely low. A false positive could also occur if the eDNA 
in a sample was from a closely related species and that eDNA was not 
distinguishable from Black Warrior waterdog eDNA. However, researchers 
have identified and applied eDNA markers unique to the Black Warrior 
waterdog that are distinct from markers in other Necturus species 
(e.g., de Souza et al. p. 5 and S2), thus avoiding species 
misidentification.
    Since the Black Warrior waterdog is difficult to capture, sampling 
for eDNA in the historical range of the species is an appropriate tool, 
bolstering confidence in assessing whether occupancy is likely. We used 
eDNA to narrow our focus on sites where additional sampling was more 
likely to capture live waterdogs, but we are not designating any 
streams as critical habitat, nor are we determining listing status, 
solely based on eDNA. That said, based on the comment, we have added 
more discussion about eDNA to the final rule.
    (4) Comment: A Federal agency was concerned that our economic 
analysis may have been an underestimation of the costs associated with 
consultations under the Act, as well as of the number of additional 
consultations as a result of the listing and critical habitat 
designation for the Black Warrior waterdog.
    Our Response: The economic analysis estimates that the incremental 
costs of critical habitat for the Black Warrior waterdog will be 
limited to administrative costs of consultation. This is due to the 
fact that all projects with a Federal nexus would already be subject to 
section 7 requirements regardless of whether critical habitat is 
designated due to the presence of the waterdog or other listed species 
with similar conservation needs. In addition, possible project 
modifications stemming from section 7 consultation are unlikely to be 
affected by the critical habitat designation because (a) the species is 
so closely associated with its aquatic habitat that there is unlikely 
to be a difference between measures needed to avoid jeopardizing the 
species in areas of occupied habitat and (b) in unoccupied areas, other 
listed aquatic species are impacted by similar factors as the waterdog. 
Specifically, there are 26 listed species that occur within the Black 
Warrior River Basin, including 14 aquatic species and 2 plant species 
that may be found within the critical habitat for the Black Warrior 
waterdog. Eight of these listed species have critical habitat that 
overlaps portions of the Black Warrior waterdog's critical habitat, and 
the entire range of the threatened flattened musk turtle (Sternotherus 
depressus) overlaps with the range of the Black Warrior waterdog. 
Therefore, any activities with a Federal nexus will be subject to 
section 7 consultation requirements regardless of the Black Warrior 
waterdog critical habitat designation.
    Based on the historical consultation rate for species that co-occur 
or share habitat with the waterdog, the economic analysis estimates 
that fewer than 2 formal consultations, 23 informal consultations, and 
206 technical assistance efforts are likely to occur in a given year.
    (5) Comment: A Federal agency noted that some of its operations 
likely co-occur with proposed occupied and unoccupied critical habitat 
for the Black Warrior waterdog, at stream crossings used to access 
existing transmission line rights-of-way (ROWs) for maintenance 
purposes and construction of new transmission line ROWs. The Federal 
agency recommended that the Service specify suitable best management 
practices (BMPs) at stream crossings to minimize or prevent impacts to 
Black Warrior waterdog, so that actions at stream crossings either will 
not affect or are not likely to adversely affect this species.
    Our Response: For stream crossing access for ROW and new 
transmission line construction, the Service will provide BMPs during 
informal or formal consultation. The additional administrative costs of 
such ROW projects with a Federal nexus are described above.
    In accordance with policy, as published in the Federal Register on 
July 1, 1994 (59 FR 34272), we added ``transmission line ROW 
maintenance'' to the actions unlikely to result in a violation of 
section 9 of the Act if carried out in accordance with existing 
regulations (see Available Conservation Measures). These actions are 
now stated in the rule as ``Normal agricultural practices, 
silvicultural practices, and transmission line ROW maintenance, 
including herbicide and pesticide use, which are carried out in 
accordance with any existing regulations, permits, and label 
requirements, and best management practices.''

State Comments

    (6) Comment: A State agency and some private organizations provided 
information on forestry compliance rates for BMPs and stream management 
zones (SMZs) and the positive impact on water quality.
    Our Response: We acknowledge the improvements and progress that 
many agencies and organizations have made over the years in relation to 
land use and certified BMPs, including a 98 percent compliance rate in 
Alabama. We made changes to the listing and critical habitat 
designation to reflect these recent improvements in certified BMPs and 
forest management. We note that a majority of the adverse effects of 
forestry on waterdog habitat (e.g., sedimentation, streambank and 
channel modification) appear to be the legacy of activities conducted 
prior to the existence of the Act and various other laws designed to 
protect water quality and aquatic habitats.

Public Comments

    (7) Comment: A commenter suggested that there is not sufficient 
information on the Black Warrior waterdog's biology and ecological 
relationships upon which to make a listing determination.
    Our Response: We are required to make our listing determination 
based on the best scientific and commercial data available at the time 
of our rulemaking. We found that the Black Warrior waterdog warrants 
listing as an endangered species under the Act, based on the severity 
and immediacy of threats currently impacting the species. The overall 
range has been significantly reduced, and the remaining habitat and 
populations face threats from a variety of factors such as water 
quality degradation and small populations that are isolated from each 
other by unsuitable habitat created mainly by impoundments and 
pollution (Factors A and E) acting in combination to reduce the overall 
viability of the species. The risk of extinction is high because the 
number of populations has decreased, and the remaining populations are 
small, isolated, and have limited potential for recolonization (Factor 
E).
    (8) Comment: One commenter requested that the Black Warrior 
waterdog be listed as threatened instead of endangered, due to lack of 
information on the species' biology and needs.
    Our Response: We considered the best scientific and commercial data 
available regarding the Black Warrior waterdog to evaluate its status 
under the Act and found that the species meets the definition of 
endangered due to the species' contracted range, loss of habitat due to 
water quality degradation (sedimentation, toxins, and nutrients), 
fragmentation of the populations caused by impoundments, rangewide (not 
localized) threats, and ongoing threats that are presently acting on 
the species. A threatened species status is not

[[Page 260]]

appropriate for this species due to a reduction of suitable habitat 
available for the species and the severity of the stressors that are 
imminent and occurring rangewide, and are expected to continue into the 
future, such that the species is in immediate danger of extinction. 
Additionally, only two of the waterdog locations support strong numbers 
of animals to the point they can be collected on a routine basis. At 
the remaining sites surveyed since 1990, only one or two waterdogs have 
been captured, which speaks to the current poor status of the species.
    (9) Comment: One commenter suggested the relevance of the flattened 
musk turtle as a surrogate species was not adequately explained.
    Our Response: We used the flattened musk turtle as a surrogate 
species because the Black Warrior waterdog and flattened musk turtle 
occupy the same range and habitat, and similar factors influence the 
habitat and conservation of each species. However, we did not rely 
solely on the flattened musk turtle to discern the habitat needs of the 
Black Warrior waterdog. We also relied on information about the Neuse 
River waterdog (Necturus lewisi), a closely related species in the same 
genus, because of its similar biology and life history, as well as 
recently published Black Warrior waterdog research.
    (10) Comment: One commenter noted that the lower 22.5 miles of 
Locust Fork and 44.5 miles of Mulberry Fork, both of which were 
proposed for designation as critical habitat, are navigable and used 
for barge traffic. The commenter requested that we consider whether 
those lower reaches exhibit the features of critical habitat for the 
Black Warrior waterdog. The commenter also requested that we identify 
measures to allow navigation maintenance activities ``without 
unreasonable burdens of cost or time'' if Section 7 consultation or 
Section 10 permitting is required.
    Our Response: The Locust Fork critical habitat unit (Unit 2) is 
occupied by the Black Warrior waterdog and contains the following 
physical or biological features: Abundant rock crevices and rock slabs, 
leaf litter, and instream flow with moderate velocity and continuous 
daily discharge that allows for a longitudinal connectivity regime 
consisting of both surface runoff and ground water sources, exclusive 
of flushing flows caused by stormwater runoff, that are essential to 
the conservation of the Black Warrior waterdog. We have removed the 
Mulberry Fork unit (Unit 6 in the proposed rule), including its lower 
44.5 miles from the final critical habitat rule. The Black Warrior 
waterdog has been extirpated from Mulberry Fork, likely because 
Mulberry Fork has incurred more habitat degradation in comparison to 
Locust Fork, where the waterdog remains extant. In short, Locust Fork 
meets the definition of critical habitat under the Act for occupied 
habitat. Mulberry Fork, however, does not meet the definition under the 
Act for unoccupied habitat as it is not essential for conservation of 
the species and therefore, is not included as critical habitat in the 
final rule (see our response to comment 11 below).
    We would not expect direct effects to the species from navigation 
maintenance activities because areas with suitable physical and 
biological features in lower Locust Fork are close to the stream 
margins, away from the navigation channel. Navigation maintenance 
activities are unlikely to be affected by the critical habitat 
designation any more than they would be by the listing of the species 
because (a) the species is so closely associated with its aquatic 
habitat there is unlikely to be a difference between measures needed to 
avoid jeopardizing the species in areas of occupied habitat and (b) in 
unoccupied areas, other listed aquatic species are impacted by similar 
factors as the waterdog. Therefore, any activities with a Federal nexus 
will be subject to section 7 consultation requirements and, if 
necessary, section 10 permitting requirements to inform the 
consultation, regardless of the Black Warrior waterdog critical habitat 
designation.
    (11) Comment: Several private organizations commented that our 
proposal to designate unoccupied areas as critical habitat had not been 
properly supported or explained in the proposed rule.
    Our Response: In order to designate unoccupied areas, we are 
required by section 3(5)(A) of the Act to determine that such areas are 
essential for the conservation of the species. We determine from the 
record whether any unoccupied areas are necessary to support the 
species' recovery. The proposed rule outlined criteria for designation 
of critical habitat, which included a consideration of unoccupied areas 
that relied on the following criteria: (1) The importance of the stream 
to the overall status of the species and the contribution to the future 
recovery of the Black Warrior waterdog; (2) whether the area could be 
restored to contain the necessary habitat to support the Black Warrior 
waterdog; (3) whether the site provides connectivity between occupied 
sites for genetic exchange; and (4) whether a population of the species 
could potentially be reestablished in the area.
    We received public comments indicating the Service inappropriately 
evaluated these units for inclusion in critical habitat and did not 
explain why these units were essential for the conservation of the 
Black Warrior waterdog. In response to these comments, we reevaluated 
the Lake Tuscaloosa, Lost Creek, and Mulberry Fork units, considering 
the four criteria listed above and the conservation strategy for the 
Black Warrior waterdog, and determined that our conclusion in the 
proposed rule, that the three unoccupied units are essential for the 
conservation of the Black Warrior waterdog, was in error.
    Within the Lake Tuscaloosa unit, even though both of these sections 
are considered to be in the historical range of the species, both are 
isolated from each other and other populations of Black Warrior 
waterdog by two large impoundments (Lake Tuscaloosa and Holt Lake), and 
we had failed to consider this in the proposed rule. Upon further 
review, based on these impoundments, we now conclude habitat 
connectivity, one of the four criteria we considered in determining 
whether unoccupied areas are essential for the conservation of the 
species, is not met for the Lake Tuscaloosa unit. This lack of habitat 
connectivity with occupied sites in turn affects the unit's 
satisfaction of another criterion, the importance of the stream to the 
overall status of the species and its contribution to future recovery. 
Although this unit still contains suitable habitat in the upper reaches 
and may play a role in the recovery of the species, we find that 
because it does not provide habitat connectivity between occupied sites 
to allow for genetic exchange it is not essential for the conservation 
of the species.
    Regarding the Lost Creek unoccupied unit, in a site assessment 
completed in March 2000, habitat in Lost Creek was determined to be 
poor to unsuitable water quality for the Black Warrior waterdog (Bailey 
2000, pp. 7-8). This reduces the likelihood that a population of 
waterdogs could be established in this unit. More importantly, like the 
Lake Tuscaloosa unit, upon reevaluation we have determined that this 
unit is isolated from other occupied areas by an impoundment (Lake 
Tuscaloosa) and therefore lacks the connectivity to occupied stream 
reaches, which in the proposed rule was one of the criteria for 
determining that the area was essential for the conservation of the 
species. Similarly, the importance of the stream to the overall status 
of the species and

[[Page 261]]

the contribution to the future recovery are also reduced due to this 
lack of habitat connectivity with occupied sites. While this unit still 
contains somewhat suitable habitat in the upper reaches and may play a 
role in the recovery of the species, we find that, because it does not 
provide habitat connectivity between occupied sites to allow for 
genetic exchange, it is not essential for the conservation of the 
species.
    Regarding the Mulberry Fork unit, as with the other two units we 
have, upon reevaluation, determined that impounded areas at the 
confluence of occupied tributary streams prohibit natural 
recolonization of this unit. The lower reach of Mulberry Fork is 
impounded by Bankhead Lake as far upstream as the mouth of Blackwater 
Creek (Bailey 2000, p. 9). In a site assessment completed in March 
2000, habitat was described as a sluggish, muddy, and impounded area at 
the confluence with Sipsey Fork (Bailey 2000, p. 10). While this unit 
does connect to the occupied Blackwater Creek unit, the large expanse 
of impounded water provides a barrier to the Black Warrior waterdogs 
expanding from the occupied unit into Mulberry Fork. Therefore, since 
the Mulberry Fork unit is isolated from other occupied areas by 
impounded areas of unsuitable habitat, it does not meet the 
connectivity criteria we considered in determining whether unoccupied 
areas are essential for the conservation of the species. The importance 
of the stream to the overall status of the species and the contribution 
to the future recovery are also reduced due to this lack of habitat 
connectivity with occupied sites. While this unit still contains 
somewhat suitable habitat in the upper reaches and may play a role in 
the recovery of the species, we find that it does not provide habitat 
connectivity between occupied sites to allow for genetic exchange and 
is not essential for the conservation of the species.
    Although the proposed units Lake Tuscaloosa, Lost Creek, and 
Mulberry Fork may have some degree of suitable habitat in the upper 
reaches and may be able to support the reintroduction of Black Warrior 
waterdogs, in the proposed rule we incorrectly determined that these 
areas were essential for the conservation of the species, as noted in 
the public comments. However, we correctly identified these units as 
providing habitat for reintroduction and future recovery activities.
    Therefore, we have determined that these four units are not 
essential for Black Warrior waterdog conservation and have not included 
these units in this final critical habitat designation. Although we no 
longer regard the unoccupied units (Lake Tuscaloosa, Lost Creek, or 
Mulberry Fork) as essential for the conservation of the species, we 
recognize that these areas may offer suitable habitat through 
restoration for the Black Warrior waterdog and may be useful for ex 
situ (offsite) conservation measures at a future time.

Summary of Changes From the Proposed Rule

    We made the following significant changes to the rule based on peer 
review and public comments: We have removed four units from the final 
critical habitat designation--the Lye Branch, Lake Tuscaloosa, Lost 
Creek, and Mulberry Fork units.
    Based on further analysis after taking into consideration 
information provided during the comment period, it was determined that 
the Lye Branch stream segment (16 kilometers (10 miles)) (set forth in 
the proposed rule as Unit 1) was not historically occupied by the Black 
Warrior waterdog but by another species of waterdog. Based on this 
information, we determined that the unit is outside the known 
historical range of the Black Warrior waterdog.
    As described in our response to Comment 11, we have also removed 
the Lake Tuscaloosa unit, approximately 108 rkm (67 rmi) of stream and 
river habitat (set forth in the proposed rule as Unit 2), the Lost 
Creek unit, approximately 93 rkm (58 rmi) of stream and river habitat 
(set forth in the proposed rule as Unit 4), and the Mulberry Fork unit, 
approximately 183 rkm (114 rmi) of stream habitat (set forth in the 
proposed rule as Unit 6) from the final critical habitat designation 
because after further analysis we determined that those unoccupied 
areas were not essential for the conservation of the species and 
therefore did not fall within the definition of ``critical habitat.''

Summary of Biological Status

    The Black Warrior waterdog is a large, aquatic, nocturnal 
salamander that permanently retains a larval form and external gills 
throughout its life (Conant and Collins 1998, pp. 419-420). Found only 
in streams within the Black Warrior River Basin (Basin) in Alabama, the 
waterdog inhabits streams above the Fall Line, which is the contact 
zone between the Coastal Plain and the adjacent Piedmont physiographic 
province. Due to their highly permeable skin (Duellman and Trueb 1986, 
p. 197) and external gills, Black Warrior waterdogs are very sensitive 
to declines in water quality.

Populations and Distribution

    Historically, the waterdog was known from 11 sites, 2 of which have 
been lost due to impoundments. Since 1990 (current), the waterdog has 
been reported from 13 sites. These sites are in Blount (Blackburn Fork 
of the Little Warrior River), Marshall (Slab Creek, tributary to Locust 
Fork), Tuscaloosa (Yellow Creek, North River, Carroll Creek, Mulberry 
Fork), Walker (Lost Creek, Little Blackwater Creek), and Winston 
(Sipsey Fork, Blackwater Creek, Browns Creek, Brushy Creek, Capsey 
Creek) Counties, Alabama. Each of the 13 sites verified as a Black 
Warrior waterdog locality represents an individual population.
    Information concerning the current status of Black Warrior waterdog 
populations is limited. Only the Sipsey Fork and Brushy Creek 
populations, in Bankhead National Forest (BNF), appear to be 
maintaining numbers sufficient enough to be captured regularly. At 
other sites surveyed since 1990, only one or two waterdogs have been 
captured. In Sipsey Fork, 52 waterdogs were captured over a 3-year 
period, representing 173,160 trap hours, a rate of 1 waterdog per 3,330 
trap hours (Durflinger-Moreno et al. 2006, pp. 70-71). A high 
proportion of sexually mature individuals were captured during this 
period, suggesting that recruitment and survival rates of the young age 
classes may be low in Sipsey Fork (Durflinger-Moreno et al. 2006, p. 
79). More recently, in surveys from 2012 to 2016 (Godwin 2016, entire), 
seven waterdogs were captured in Sipsey Fork (408 trap-nights; catch 
per unit effort (CPUE) = 0.017 waterdogs per trap-night) and four were 
captured in Brushy Creek (140 trap-nights; CPUE = 0.029). The density 
of Black Warrior waterdogs in Sipsey Fork and Brushy Creek in BNF, 
relative to the lower densities detected at other sites in the species' 
range, indicates the importance of this federally owned land for the 
species' recovery and long-term survival.
    Because Black Warrior waterdogs are extremely difficult to detect 
in surveys, little is known regarding the species' demography. However, 
we may infer some of the characteristics of a healthy population based 
on capture data from the most the robust extant population (Durflinger-
Moreno 2006, entire) in the Sipsey Fork drainage. We would expect a 
healthy population at a minimum to have an adult sex ratio close to 
1:1. Additionally, a stable population would be expected to have 
larval, juvenile, and adult age classes present annually, as a measure 
of stable recruitment and reproduction rates. Species' abundance

[[Page 262]]

data are lacking, but in 1938, during spring and fall, 135 specimens 
were collected at a single site in Mulberry Fork (Bart et al. 1997, p. 
193). In comparison, 52 waterdogs were captured in Sipsey Fork over 
three years of sampling, in 1994, 1995 and 1997. Thus, based on these 
historic and current data, and given the Sipsey Fork population is 
likely depressed relative to historic populations, a recovered or 
conserved species could be estimated to have aggregations of at least 
100 individuals per year, represented by all age classes, and at 
multiple sites within each currently occupied sub-basin in the Black 
Warrior river.
    The captures of four waterdogs in Brushy Creek confirmed the 
accuracy of eDNA (environmental DNA, described below) previously 
detected in Brushy Creek water samples (de Souza et al. 2016, p. 8). In 
2013 and 2014, eDNA samples indicated Black Warrior waterdogs may still 
present in Rush Creek (Brushy Creek tributary) and Locust Fork, and 
newly found in Gurley Creek (Locust Fork tributary) and Yellow Creek 
(Big Yellow Creek/Black Warrior River tributary), although no waterdogs 
were captured at the time (Godwin 2014, pers. comm.). Similarly, in 
2016, a Black Warrior waterdog was captured in Yellow Creek, validating 
the results of the eDNA survey in that stream.
    Detecting the presence of the Black Warrior waterdog is difficult, 
presumably because the species currently occurs only at low densities. 
The relationship between cumulative number of site visits and the 
cumulative number of sites containing waterdogs indicated that 200 
additional surveys would be needed to discover a single new locality 
for the species (Guyer 1997, p. 4). This relationship is further 
supported by the findings of de Souza (2016, p. 10), which indicated 
that, at an occupied site, 10 and 32 eDNA replicate water samples in 
the cool season and warm season, respectively, would be necessary for 
95 percent detection probability of the waterdog.
    Only through the use of eDNA have we been able to determine that 
the waterdog is likely present at some historical locations. 
Researchers use eDNA as a surveillance tool to monitor for the genetic 
presence of an aquatic species. According to Strickler (2015, p. 1), 
``. . . when an aquatic animal can't be seen or heard, it leaves traces 
of itself in the water by shedding skin, excreting waste, releasing 
gametes and decomposing. Investigators collect a water sample to detect 
the target species' DNA and determine whether the species has recently 
been in the water body.'' Positive eDNA detections indicate that the 
DNA of the targeted species was present in a water sample at the 
collection location but do not definitively tell us that the species is 
still present. Studies on decay rate of eDNA indicate it remains 2 to 3 
weeks following release (Dejean et al. 2011), and, in using this 
guideline, we assume that the organismal source (Black Warrior 
waterdog) was present in the stream within the prior 2- to 3-week time 
window. Information that eDNA cannot provide is the abundance of the 
target species, whether the eDNA was derived from living or dead 
individuals, or if the population is viable.
    To prevent incorrectly identifying presence of Black Warrior 
waterdog based on eDNA when a similar species was present, de Souza et 
al. (2016 p. 5 and S2) included DNA from similar Necturus species in 
analyses of the eDNA samples from the Black Warrior drainage. Part of 
the eDNA analyses included a primer search (primers are used to amplify 
DNA samples) that identified the primers that combined with Black 
Warrior waterdog DNA but not the DNA of non-target Necturus species (de 
Souza et al. 2016, S2). Non-target species (those to avoid 
misidentifying as Black Warrior waterdog) in the analyses were N. 
lodingi, an undescribed species in Gulf drainages from Mobile Bay 
eastward (Shelton-Nix, p. 200), mudpuppy, dwarf waterdog, and Gulf 
Coast waterdog. Among the non-target species only the Gulf Coast 
waterdog could potentially co-occur naturally at sites along the Fall 
Line, since its range extends from the Coastal Plain to the Fall Line, 
whereas the Black Warrior waterdog range extends from the Piedmont to 
the Fall Line. It is also possible that mudpuppies could co-occur as a 
result of introductions by human transport from the Tennessee River 
drainage, which lies just north of Black Warrior drainage divide. In 
summary, given the analytical design applied to the eDNA, it is 
unlikely any samples were from Necturus species other than Black 
Warrior waterdog.

Biology and Habitat

    Black Warrior waterdogs are associated with stream depths of 1 to 4 
meters (m) (3.3 to 13.1 feet (ft)), reduced sedimentation, and large 
leaf packs (leaves that fall into streams accumulate in packs usually 
behind branches, rocks, and other obstructions) supporting mayfly 
(Ephemeroptera spp.) and caddisfly (Trichoptera spp.) larvae.
    Except for habitat affinities, life-history data concerning the 
Black Warrior waterdog and other species of Necturus waterdogs are 
somewhat limited. As closely related species in the same genus, there 
are general characteristics that all Necturus species share, such as 
retention of the larval state (e.g., gills) as adults. As an example, 
although geographically separated (allopatric), the Black Warrior 
waterdog and the Neuse River waterdog both utilize high-gradient 
streams that are above the Fall Line and contain hard substrate, 
leafpacks, and macroinvertebrates. Because the two species likely 
evolved in similar habitats, an influential factor in determining life-
history traits, we used the Neuse River waterdog as a surrogate to 
decipher some of the biological and ecological attributes that have not 
yet been determined for the Black Warrior waterdog. When such data were 
lacking for the Neuse River waterdog and Black Warrior waterdog, we 
relied on data from other Necturus species.

Summary of Factors Affecting the Species

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any one of five 
factors affecting its continued existence. In this section, we 
summarize the factors affecting the Black Warrior waterdog to assess 
the species' viability. For additional detail, see the proposed listing 
rule (81 FR 69500, October 6, 2016).

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Water quality degradation is considered the primary reason for the 
extirpation of the Black Warrior waterdog over much of its historical 
range (Bailey 2000, pp. 19-20). Together with large impoundments 
(discussed below), it is the predominant threat to the continued 
existence of the species. Changes in water chemistry and flow patterns, 
resulting in a decrease in water quality and quantity, have detrimental 
effects on salamander ecology because they can render aquatic habitat 
unsuitable. Substrate modification is also a major concern for aquatic 
salamander species (Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34). 
When interstitial spaces between substrates become compacted or filled 
with fine sediment, the amount of available foraging habitat and 
protective cover for salamanders is reduced, resulting in population 
declines. Most streams surveyed for the Black Warrior waterdog showed 
evidence of water quality degradation and were correspondingly 
biologically depauperate, lacking the full complement of species that 
would

[[Page 263]]

be expected under natural, undisturbed habitat conditions (Bailey 1992, 
p. 2; Bailey 1995, p. 11; Durflinger-Moreno et al. 2006, p. 78).
Discharges
    Contributors to water quality degradation in the Black Warrior 
Basin include point source (end of pipe) discharges and runoff from 
urban, mining, agricultural and, historically, forestry land uses 
(Deutsch et al. 1990, pp. 1-62; Upper Black Warrior Technical Task 
Force 1991, p. 1; O'Neil and Sheppard 2001, p. 2). These sources 
contribute pollution to the Basin via sediments, fertilizers, 
herbicides, pesticides, animal wastes, septic tank and gray water 
leakage, and oils and greases. Pollution has a direct effect on the 
survival of Black Warrior waterdogs, which, due to their highly 
permeable skin (Duellman and Trueb 1986, p. 197) and external gills, 
are very sensitive to declines in water quality.
Urbanization
    Urbanization is a significant source of water quality degradation 
that can reduce the survival of aquatic organisms, including the Black 
warrior waterdog (Bowles et al. 2006, p. 119; Chippindale and Price 
2005, pp. 196-197). Urban development can stress aquatic systems in a 
variety of ways, including increasing the frequency and magnitude of 
high flows in streams, increasing sedimentation, increasing 
contamination and toxicity, and changing stream morphology and water 
chemistry (Coles et al. 2012, pp. 1-3, 24, 38, 50-51). Sources and 
risks of an acute or catastrophic contamination event, such as a leak 
from an underground storage tank or a hazardous materials spill on a 
highway, increase as urbanization increases.
    Several researchers have examined the negative impact of 
urbanization on stream salamander habitat, finding connections between 
salamander abundances and levels of development within a watershed. A 
study on the dusky salamander (Desmognathus fuscus) in Georgia (Orser 
and Shure 1972, p. 1,150) found a decrease in stream salamander density 
with increasing urban development. A similar relationship between 
populations and urbanization was found for dusky salamander, two-lined 
salamander (Eurycea bislineata), southern two-lined salamander (E. 
cirrigera), and other species in North Carolina (Price et al. 2006, pp. 
437-439; Price et al. 2012a, p. 198), Maryland, and Virginia (Grant et 
al. 2009, pp. 1,372-1,375). Abundance of dusky and two-lined 
salamanders was most closely related to the amount and type of habitat 
within the entire watershed, as opposed to areas immediately adjacent 
to the stream (Willson and Dorcas 2003, pp. 768-770).
    Large population centers such as the cities of Birmingham, 
Tuscaloosa, and Jasper contribute substantial runoff to the Black 
Warrior Basin. The watershed occupied by these three cities contains 
more industrial and residential land area than other river basins in 
Alabama. Streams draining these areas have a history of serious water 
quality problems, as described above. Entire species of fish, mussels, 
and snails (Mettee et al. 1989, pp. 14-16; Hartfield 1990, pp. 1-8), 
and populations of the flattened musk turtle (Service 1990, p. 3), have 
been extirpated from large areas of the watershed primarily due to 
water quality degradation.
Spills
    Associated with urbanization is the development of transportation 
systems, including roads, rails, airports, locks, and docks. Accidents, 
crashes, and derailments, resulting in spills, occur along these 
transportation corridors. Since 1990, more than 1,200 spills in the 
Basin have been reported to the U.S. Coast Guard National Response 
Center. One of several spills in the Basin took place in the Black 
Warrior River in 2013. Approximately 164 gallons of crude oil were 
accidently pumped into the river. Emergency response teams cleaned the 
river, but a sheen of crude oil remained visible (Taylor 2013, entire). 
The threat from spills remains unchanged.
Forestry
    Runoff from forestry operations and road construction has been a 
source of pollution in the Basin when certified BMPs were not followed 
to protect streamside management zones (Hartfield 1990, pp. 4-6; 
Service 2000, p. 13). Forestry activities that were poorly or 
inadequately managed in the past can have long-lasting effects in the 
high-gradient, highly erodible soils within the Basin, as seen by the 
legacy effects on Bankhead National Forest (Laschet 2014, pers. obs.). 
However, modern forestry operations in Alabama have a certified BMP 
compliance of 98 percent and, therefore, mostly are not currently 
significant contributors to nonpoint source pollution. According to 
Alabama's BMPs for forestry, SMZs should be a width of 35 ft (50 ft for 
sensitive areas) from the stream bank, providing a level of protection 
to instream habitat. Recently, the forest industry has begun to self-
regulate SMZs through a third-party certification program in which 
mills will not accept timber from foresters who do not comply with SMZ 
requirements.
Surface Coal Mining
    Surface coal mining represents another threat to the biological 
integrity of streams in the Basin and has undoubtedly affected the 
distribution of the Black Warrior waterdog (Bailey 1995, p. 10). Strip 
mining for coal results in hydrologic disturbance (i.e., erosion, 
sedimentation, decline in groundwater levels, and general degradation 
of water quality) that affects many aquatic organisms (Service 2000, p. 
12). Runoff from coal surface mining can generate pollution through 
acidification, increased mineralization, and sediment loading. Impacts 
are more often associated with past activities and abandoned mines, 
since presently operating mines are required to employ environmental 
safeguards established by the Federal Surface Mining Control and 
Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) and the Clean Water 
Act of 1972 (33 U.S.C. 1251 et seq.) (Service 2000, p. 12).
    Coal mining in the Basin is currently a threat to the Black Warrior 
waterdog. Abandoned mines that have been inadequately reclaimed will 
continue to contribute pollutants to streams into the future. Recently, 
new coal mines, which have the potential to discharge additional 
pollutants into the waters in the range of the Black Warrior waterdog, 
have been proposed in Sipsey Fork and Mulberry Fork (Dillard 2011, 
pers. comm.; Alabama Surface Mining Commission 2012, pp. 1-4).
Impoundments
    In addition to water quality degradation, creation of large 
impoundments has reduced suitable habitat within the Basin. Two 
historical populations of the Black Warrior waterdog, Black Warrior 
River near Tuscaloosa and Mulberry Fork at Cordova, have been lost due 
to impoundments. Impoundments behind Bankhead, Lewis, and Holt dams 
have flooded thousands of hectares (acres) of habitat previously 
considered suitable for the Black Warrior waterdog. The entire main 
channel of the Black Warrior River, over 272 kilometers (km) (170 miles 
(mi)), has been affected by impoundments (Hartfield 1990, p. 7), which 
do not have the shallow, flowing water associated with the waterdog. As 
a result, impoundments generally are unsuitable habitat for the 
species, although on one occasion two waterdogs were found in the upper 
end of Lewis Smith Reservoir (U.S. Forest Service record, in Godwin 
2016, p. 5) where

[[Page 264]]

Sipsey Fork enters and stream habitat transitions to lake habitat. The 
abundance of large predatory fish in impoundments further renders them 
unsuitable for the Black Warrior waterdog.
    Historically, Brushy Creek was a tributary of Sipsey Fork. 
Construction of Lewis Smith Reservoir separated the flowing connection 
between Brushy Creek and Sipsey Fork, essentially splitting the single 
BNF population in two isolated halves. Impoundments have been 
entrapments for waterdogs, isolating and inhibiting genetic exchange 
between populations in tributaries no longer connected by suitable 
flowing habitat.
Summary of Factor A
    The Black Warrior waterdog has experienced substantial destruction, 
modification, and curtailment of its habitat and range. Specific 
species stressors include degradation of water quality and habitat from 
point source discharges and runoff, urbanization, legacy effects of 
poor forest management, surface coal mining, agriculture, and the 
construction of dams and their impoundments, together affecting 
hundreds of stream miles in the species' range. The amount of habitat 
already lost amplifies the current and future threat from point and 
nonpoint source pollution, accidental spills, and violation of 
permitted discharges. Due to a reduction of suitable habitat available 
for the species and the severity and magnitude of this stressor, we 
consider the present or threatened destruction, modification, or 
curtailment of habitat and range a threat to the Black Warrior 
waterdog. While changes to land management and river operations have 
reduced impacts to the river system, ongoing activities continue to 
affect water quality.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Based on best available data, there is no evidence that 
overutilization for commercial, recreational, scientific, or 
educational purposes is a threat to the Black Warrior waterdog.

Factor C. Disease or Predation

    No diseases or incidences of predation have been reported for the 
Black Warrior waterdog. Also, there is no evidence of predation on 
Necturus species by fish in creeks and streams as reported by Bart and 
Holzenthal (1985, p. 406). Predation of adult mudpuppy (N. maculosus) 
by fish, crayfish, turtles and watersnakes has been observed rarely 
(Petranka 1998, p. 429), and is almost certainly an occurrence for 
Black Warrior waterdogs as well. A study of dwarf waterdog (N. 
punctatus) feeding behavior in the presence of predators indicated 
movement of the species to leaf pack habitat was driven by food 
availability rather than predator avoidance (Sollenberger 2013, 
entire). Given the very infrequent observations of predation on 
waterdogs and no reports of deleterious effects of predation on 
Necturus species, we do not consider predation to be an important 
factor influencing Black Warrior waterdog populations. Therefore, the 
best available data do not indicate that disease or predation is a 
threat to the Black Warrior waterdog in its preferred habitat outside 
of impounded areas, which harbor greater densities of larger fish 
predators and are more open than stream habitats, providing less cover 
for avoiding potential predators such as birds.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to the Black Warrior 
waterdog discussed under other factors. Section 4(b)(1)(A) of the Act 
requires the Service to take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species.'' In relation to 
Factor D under the Act, we interpret this language to require the 
Service to consider relevant Federal, State, and Tribal laws and 
regulations, and other such mechanisms that may minimize any of the 
threats we describe in threat analyses under the other four factors, or 
otherwise enhance conservation of the species. We give strongest weight 
to statutes and their implementing regulations and to management 
direction that stems from those laws and regulations. An example would 
be State governmental actions enforced under a State statute or 
constitution, or Federal action under statute.
    The Federal Surface Mining Control and Reclamation Act of 1977 
(SMCRA), as amended December 22, 1987, requires all permitted mining 
operations to minimize disturbances and adverse impacts to fish, 
wildlife, and related environmental values, as well as implement 
enhancement measures where practicable. It further recognizes the 
importance of land and water resources restoration as a high priority 
in reclamation planning. However, the continued decline of many 
species, including the flattened musk turtle, fishes, and a number of 
mussels in the Black Warrior Basin, is often attributed to mining 
activities (Dodd et al. 1988, pp. 55-61; Mettee et al. 1989, pp. 12-13; 
Hartfield 1990, pp. 1-8; Bailey and Guyer 1998, pp. 77-83; Service 
2000, pp. 12-13), even though SMCRA is in effect.
    The Alabama Department of Conservation and Natural Resources 
(ADCNR) recently added the Black Warrior waterdog to its list of non-
game State-protected species (ADCNR 2012, pp. 1-4). Although this 
change will make it more difficult to obtain a collecting permit for 
the species, it does not offer any additional protection for habitat 
loss and degradation. The ADCNR also recognizes the Black Warrior 
waterdog as a Priority 2 species of high conservation concern in its 
State Wildlife Action Plan due to its rarity and restricted 
distribution (ADCNR 2005, p. 298). However, this designation also does 
not offer any regulatory protections.
    Alabama Department of Environmental Management (ADEM) has 
established minimum water-quality standards for some occupied stream 
segments within the Black Warrior River drainage under the authority of 
the Clean Water Act of 1972. These standards are believed to be 
protective of aquatic species. In Locust Fork, Mulberry Fork, and other 
tributaries of the Black Warrior River occupied by the Black Warrior 
waterdog, a combined total of 275 km (171 mi) have been identified on 
the Alabama 303(d) List (a list of water bodies failing to meet their 
designated water-use classifications) as impaired by siltation and 
nutrients (ADEM 2010, pp. 1-3). The sources of these impairments have 
been identified as runoff from agricultural fields, abandoned surface 
mines, and industrial or municipal sites. Multiple stream reaches 
within the occupied habitat of the Black Warrior waterdog (Locust Fork, 
Mulberry Fork, Yellow Creek, and North River) fail to meet current 
regulatory standards. Even with current regulations, surviving waterdog 
populations are negatively affected by discharges, highway 
construction, mining (current and unreclaimed sites), and other 
activities with a Federal nexus (see discussion under Factor A, above).

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

Demographic Factors
    The remaining Black Warrior waterdog populations are isolated from 
each other by unsuitable habitat created by impoundments, pollution, 
and other

[[Page 265]]

factors as described under the Factor A discussion, above. Waterdog 
population densities are low even in the relatively best localities, 
and factors related to low population compound these threats.
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
decreasing their ability to adapt to environmental changes, and 
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter 
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). These low 
population densities combined with fragmentation of habitat renders 
populations extremely vulnerable to inbreeding depression (negative 
genetic effects of small populations, e.g., Wright et al. 2008, p. 833) 
and may reduce mating to a frequency insufficient to sustain 
populations with newly recruited cohorts. Additionally, low population 
densities reduce species' resiliency to catastrophic events such as 
floods, droughts, or chemical spills (Black Warrior River Watershed 
Management Plan n.d., p. 4.4), which may be compounded by the effects 
of climate change in the future (see discussion below). It is likely 
that some of the Black Warrior waterdog populations are below the 
effective population size required to maintain long-term genetic and 
population viability. The long-term viability of a species is based on 
the conservation of numerous populations throughout its geographic 
range (Harris 1984, pp. 93-104), which provides a level of redundancy 
that reduces the risk of environmental change to the species as a whole 
(Shaffer and Stein 2000, p. 310). The level of isolation and 
fragmentation of Black Warrior waterdog populations makes natural 
repopulation following localized extirpations virtually impossible 
without human intervention.
Climate Change
    Climate change has the potential to increase vulnerability of the 
Black Warrior waterdog to random catastrophic events. Various emissions 
scenarios suggest that, by the end of the 21st century, average global 
temperatures are expected to increase 0.3 [deg]C to 4.8 [deg]C (0.5 
[deg]F to 8.6[emsp14][deg]F), relative to the period 1986-2005 (IPCC 
2013, p. 15). By the end of 2100, it is virtually certain that there 
will be more frequent hot and fewer cold temperature extremes over most 
land areas on daily and seasonal timescales, and it is very likely that 
heat waves and extreme precipitation events will occur with a higher 
frequency and intensity (IPCC 2013, pp. 15-16). In the southeastern 
United States the frequency, duration, and intensity of droughts are 
likely to increase (Thomas et al. 2009, p. 112). Droughts cause 
decreases in water flow and dissolved oxygen levels and increases in 
temperature in the river system. Studies of aquatic salamanders have 
reported decreased occupancy, loss of eggs, decreased egg-laying, and 
extirpation from sites during periods of drought (Camp et al. 2000, p. 
166; Miller et al. 2007, pp. 82-83; Price et al. 2012b, pp. 317-319).

Determination of Status

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for 
determining whether a species is an endangered species or threatened 
species and should be included on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (i.e., ``listed''). 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. Listing actions may be warranted 
based on any of the above threat factors, singly or in combination.

Determination of Status Throughout All of the Species' Range

    We have carefully assessed the best scientific and commercial data 
available regarding the past, present, and future threats to the Black 
Warrior waterdog. Two populations have been extirpated due to 
construction of dams that eliminated habitat on the Black Warrior River 
(Factor A). Current threats to the species include habitat destruction 
and degradation from point source pollution, runoff, and contaminant 
spills from industry, urbanization, surface coal mining, agriculture, 
and legacy effects of past forestry practices (Factor A). The small 
size and level of fragmentation of remaining Black Warrior waterdog 
populations leaves the species vulnerable to inbreeding depression and 
reduced genetic fitness, natural stochastic events, including storms 
and droughts (Factor E). Existing regulatory mechanisms have not led to 
a reduction or removal of threats impacting the Black Warrior waterdog 
(Factor D). These ongoing threats to the species are rangewide and 
expected to continue in the future.
    The Black Warrior waterdog is currently in danger of extinction 
throughout its entire range due to the immediacy and severity of 
threats currently impacting the species. The risk of extinction is high 
because there are few (13) extant populations and the majority of the 
populations are small and isolated. Several of these populations are 
likely below the effective size needed to remain viable without human 
intervention, owing to barriers to natural immigration. Therefore, on 
the basis of the best available scientific and commercial information, 
we list the Black Warrior waterdog as an endangered species. We find 
that a threatened species status is not appropriate for this species 
due to a reduction of suitable habitat available for the species and 
the severity of the stressors that are imminent and occurring 
rangewide, are ongoing, and are expected to continue into the future, 
such that the species is in immediate danger of extinction. 
Additionally, only two waterdog populations appear to be maintaining 
numbers sufficiently large to be captured regularly. At the remaining 
sites surveyed since 1990, only one or two waterdogs have been 
captured, which speaks to the current poor status of the species. 
Because of the contracted range and small population size of Black 
Warrior waterdog and because the threats are occurring rangewide, are 
ongoing, and are expected to continue into the future, we conclude that 
the species is in immediate danger of extinction.

Determination of Status in a Significant Portion of the 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'' and a threatened species as any species ``that is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range.'' The phrase ``significant portion of 
its range'' is not defined by the Act, and a district court has held 
that aspects of the Service's 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)) (SPR Policy) were not valid. Center for 
Biological Diversity v. Jewel, No. 14-cv-02506-RM (D. Ariz. Mar. 29, 
2017) (Pygmy-Owl Decision).
    Although the court's order in that case has not yet gone into 
effect, if the court denies the pending motion for reconsideration, the 
SPR Policy would become vacated. Therefore, we have examined the plain 
language of the Act

[[Page 266]]

and court decisions addressing the Service's application of the SPR 
phrase in various listing decisions, and for purposes of this 
rulemaking we are applying the interpretation set out below for the 
phrase ``significant portion of its range'' and its context in 
determining whether or not a species is an endangered species or a 
threatened species. Because the interpretation we are applying is 
consistent with the SPR Policy, we summarize herein the bases for our 
interpretation, and also refer the public to the SPR Policy itself for 
a more-detailed explanation of our reasons for interpreting the phrase 
in this way.
    An important factor that influences the question of whether an SPR 
analysis is necessary here is what the consequence would be if the 
Service were to find that the Black Warrior waterdog is in danger of 
extinction or likely to become so throughout a significant portion of 
its range. Two district court decisions have evaluated whether the 
outcomes of the Service's SPR determinations were reasonable. As 
described in the SPR Policy, both courts found that, once the Service 
determines that a ``species''--which can include a species, subspecies, 
or DPS under ESA Section 3(16)--meets the definition of ``endangered 
species'' or ``threatened species,'' the species must be listed in its 
entirety and the Act's protections applied consistently to all members 
of that species (subject to modification of protections through special 
rules under sections 4(d) and 10(j) of the Act). See Defenders of 
Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1222 (D. Mont. 2010) 
(delisting of the Northern Rocky Mountains DPS of gray wolf; appeal 
dismissed as moot because of public law vacating the listing, 2012 U.S. 
App. LEXIS 26769 (9th Cir. Nov. 7, 2012)); WildEarth Guardians v. 
Salazar, No. 09-00574-PHX-FJM, 2010 U.S. Dist. LEXIS 105253, 15-16 (D. 
Ariz. Sept. 30, 2010) (Gunnison's prairie dog). The issue has not been 
addressed by a Federal Court of Appeals.
    Consistent with the district court case law, we interpret that the 
consequence of finding that the Black Warrior waterdog is in danger of 
extinction or likely to become so throughout a significant portion of 
its range would be that the entire species would be listed as an 
endangered species or threatened species, respectively, and the Act's 
protections would be applied to all individuals of the species wherever 
found. Thus, the ``throughout all'' phrase and the SPR phrase provide 
two independent bases for listing. We note that in the Act Congress 
placed the ``all'' language before the SPR phrase in the definitions of 
``endangered species'' and ``threatened species.'' This suggests that 
Congress intended that an analysis based on consideration of the entire 
range should receive primary focus. Thus, the first step we undertook, 
above, in our assessment of the status of the species was to determine 
its status throughout all of its range. Having determined that the 
species is in danger of extinction throughout all of its range, we now 
examine whether it is necessary to determine its status throughout a 
significant portion of its range.
    We conclude that in this situation we do not need to conduct an SPR 
analysis. This conclusion is consistent with the Act because the 
species is currently in danger of extinction throughout all of its 
range due either to high-magnitude threats across its range, or to 
threats that are so high in particular areas that they severely affect 
the species across its range. Therefore, the species is in danger of 
extinction throughout every portion of its range, and an analysis of 
whether the species is in danger of extinction or likely to become so 
throughout any significant portion of its range would be redundant and 
unnecessary. In addition, because the phrase ``significant portion of 
its range'' (SPR) could provide a second and independent basis for 
listing the Black Warrior waterdog in its entirety, an SPR analysis 
could would be either unnecessary or confusing. An SPR analysis could 
lead to a conclusion that, in addition to being an ``endangered 
species'' because of its status throughout all of its range, the Black 
Warrior waterdog is also an ``endangered species'' or ``threatened 
species'' because of its status throughout a significant portion of its 
range. The former clearly would be an unnecessary finding, because we 
have already determined that the species is an ``endangered species'' 
because of its status throughout all of its range. The latter would 
create confusion because it could lead to a conclusion that the species 
warrants listing both as an endangered species (because of its status 
throughout all of its range) and as a threatened species (because of 
its status in the SPR). We accordingly conclude that we do not need to 
conduct further analysis of whether the Black Warrior waterdog is in 
danger of extinction or likely to become so in the foreseeable future 
throughout a significant portion of its range.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing actions 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. Section 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 a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our website (https://www.fws.gov/endangered), or from our Alabama Ecological Services Field Office (see 
ADDRESSES).
    Implementation of recovery actions generally requires the 
participation of a

[[Page 267]]

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.
    Following publication of this listing rule, 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 State of Alabama 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the Black Warrior waterdog. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for the Black Warrior waterdog. 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)(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 any endangered or 
threatened 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 Black Warrior waterdog habitat that 
may require consultation as described in the preceding paragraph 
include management and any other landscape-altering activities on 
Federal lands administered by the Service, U.S. Forest Service, and 
Bureau of Land Management; issuance of section 404 Clean Water Act 
permits by the U.S. Army Corps of Engineers; construction and 
maintenance of gas pipeline and power line rights-of-way by the Federal 
Energy Regulatory Commission; construction and maintenance of roads or 
highways by the Federal Highway Administration; land management 
practices supported by programs administered by the U.S. Department of 
Agriculture; Environmental Protection Agency pesticide registration; 
and projects funded through Federal loan programs which include, but 
are not limited to, roads and bridges, utilities, recreation sites, and 
other forms of development.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, 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) endangered 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 endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
endangered wildlife, a permit may be issued 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.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of species. 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:
    (1) Normal agricultural practices, silvicultural practices, and 
transmission line ROW maintenance, including herbicide and pesticide 
use, which are carried out in accordance with any existing regulations, 
permit, and label requirements, and certified best management 
practices; and
    (2) Normal residential development and landscape activities, which 
are carried out in accordance with any existing regulations, permit 
requirements, and best management practices.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 the Act; this list 
is not comprehensive:
    (1) Unauthorized introduction of nonnative species that compete 
with or prey upon the Black Warrior waterdog;
    (2) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of this taxa, as defined by 
section 10(h)(1) of the Act;
    (3) Unauthorized destruction or alteration of Black Warrior 
waterdog habitat that results in destruction or loss of leaf packs and 
rocky substrate (rock crevices in the creek or stream);
    (4) Unauthorized discharge of chemicals or fill material into any 
waters in which the Black Warrior waterdog is known to occur; and
    (5) Actions, intentional or otherwise, that would result in the 
destruction of eggs or cause mortality or injury to hatchling, 
juvenile, or adult Black Warrior waterdogs.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and

[[Page 268]]

    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define ``geographical area 
occupied by the species'' as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. 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.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat). In identifying those physical and 
biological features within an area, we focus on the specific features 
that support the life-history needs of the species, including, but not 
limited to, water characteristics, soil type, geological features, 
prey, vegetation, symbiotic species, or other features. A feature may 
be a single habitat characteristic, or a more complex combination of 
habitat characteristics. Features may include habitat characteristics 
that support ephemeral or dynamic habitat conditions. Features may also 
be expressed in terms relating to principles of conservation biology, 
such as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we may designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the 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 and commercial data available. They require our staff, to 
the extent consistent with the Act and with the use of the best 
scientific and commercial data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
However, additional information sources may include the recovery plan 
for the species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to

[[Page 269]]

designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. For 
example, physical features might include gravel of a particular size 
required for spawning, alkali soil for seed germination, protective 
cover for migration, or susceptibility to flooding or fire that 
maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or a particular level of nonnative species consistent with 
conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species. In 
considering whether features are essential to the conservation of the 
species, the Service may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include but are not limited to space for 
individual and population growth and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    We derive the specific physical or biological features essential 
for Black Warrior waterdog from studies of this species' habitat, 
ecology, and life history as described below. Additional information 
can be found in the proposed listing (81 FR 69500) and critical habitat 
rule (81 FR 69475), both published in the Federal Register on October 
6, 2016. We have determined that the following physical or biological 
features are essential for Black Warrior waterdog.
Space for Individual and Population Growth and for Normal Behavior
    The Black Warrior waterdog is found in the Black Warrior Basin 
above the Fall Line, characterized by rocky habitat with little sand. 
According to Mount (1981, p. 23), optimal habitat for the flattened 
musk turtle, a species listed as threatened under the Act (52 FR 22418; 
June 11, 1987) that has the same range as the waterdog, consists of a 
``segment of a free flowing large creek or small river having the 
following characteristics: (1) Drainage area between 50 and 500 square 
miles, (2) depth averaging two feet, with vegetated shallows 
alternating with pools at least three to four feet deep, (3) pools with 
detectable current, (4) abundance of submerged rocks with crevices, 
overlapping flat rocks, or accumulations of boulders, (5) abundant 
molluscan fauna, (6) low silt load and minimal silt deposits, (7) 
relatively low nutrient content and bacterial count, (8) moderate 
temperatures (maximum 85 [deg]F), and (9) minimal pollution by 
synthetic chemicals and toxic inorganic materials.'' Since the Black 
Warrior waterdog and the flattened musk turtle occupy the same range 
and similar habitats, this description of optimal habitat is applicable 
to both species with the difference that the Black Warrior waterdog 
finds refuge under boulders or rocks and in crevices, lays its eggs on 
the underside of boulders, and uses deposited leaf packs (Bailey and 
Guyer 2004, pp. 36-37; Durflinger-Moreno et al. 2006, pp. 69, 76, 78) 
on the streambed, likely for foraging on aquatic insect larvae and for 
sheltering.
    Necturus species in general have similar feeding habits, 
reproductive strategies, and physical characteristics. For example, 
although geographically separated (allopatric), the Black Warrior 
waterdog and the Neuse River waterdog both utilize high-gradient 
streams that are above the Fall Line and contain hard substrate, 
leafpacks, and macroinvertebrates. Because the two species likely 
evolved in similar habitats, an influential factor in determining life-
history traits, we used the Neuse River waterdog as a surrogate to 
determine some of the biological and ecological attributes that have 
not yet been determined for the Black Warrior waterdog. When such data 
were lacking for the Neuse River waterdog and Black Warrior waterdog, 
we relied on data from other Necturus species. Furthermore, as 
discussed above, because the flattened musk turtle has an identical 
range to the Black Warrior waterdog, we relied on the turtle's known 
habitat affinities to identify some of the habitat features important 
to the Black Warrior waterdog.
    The tributaries of the Neuse River have gradients similar to the 
tributaries of the Black Warrior River Basin. According to Ashton 
(1985, pp. 103-104), adult and juvenile Neuse River waterdogs use 
habitats characterized by moderate stream flow and relatively high 
dissolved oxygen concentrations, which is consistent with other 
Necturus species found in southern States. Studies of the Neuse River 
waterdog indicate that adult waterdogs use areas with large bedrock 
outcrops, large boulders with sandy-gravel bottoms, and stream banks 
with rock outcroppings.
    The Black Warrior waterdog needs geomorphically stable streams with 
substrate consisting of clay or bedrock with little sand, and 
containing abundant rock crevices, rock slabs, and leaf packs. The 
connectivity of these stream habitats is also essential in 
accommodating growth and other normal behaviors of the Black Warrior 
waterdog and in promoting gene flow within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food--Feeding habits of the Black Warrior waterdog are likely 
similar to the feeding habits of Neuse River waterdog, since both 
species are found in similar microhabitats. Both adult and juvenile 
Neuse River waterdogs appear to be opportunistic feeders. Braswell and 
Ashton (1985 pp. 22-27) found that larval waterdog diets consist 
primarily of a variety of aquatic arthropods (orders Ostracoda, 
Copepoda, Isopoda, and Amphipoda) with some insect larvae (orders 
Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and 
Coleoptera). Black Warrior waterdogs have been found in close 
association with mayfly (Ephemeroptera) and caddisfly (Tricoptera) 
larvae (Durflinger-Moreno et al. 2006). Adult Neuse River waterdog diet 
was more expansive than the juvenile diet and included aquatic 
arthropods, other aquatic and terrestrial invertebrates (earthworms, 
centipedes, beetles, grubs), and aquatic and terrestrial vertebrates 
(fish and salamanders) (Braswell and Ashton 1985, pp. 13, 24-25).
    Since aquatic invertebrates are an important component of the Black 
Warrior waterdog's diet, it is essential to also take into 
consideration specific habitat requirements of these prey. Merrit and 
Cummins (1996) described caddisfly and mayfly habitat as a wide variety 
of standing and flowing water habitats, with the greatest diversity 
being found in rocky-bottom streams with an abundance of oxygen. As a 
result, they further identify the food sources for these aquatic 
insects as a variety of detritus (leaf packs), algae, diatoms, and 
macrophytes.
    Water--As little is known about the specific water quality needs of 
the Black Warrior waterdog, we evaluated and based the water quality 
parameters on various factors, specifically Mount's (1983) description 
of optimal habitat, Neuse River waterdog literature, prey species 
requirements (insect larvae),

[[Page 270]]

Alabama Department of Environmental Management (ADEM) water quality 
standards, and water quality requirements for currently listed aquatic 
species found in the Basin, as follows: rush darter (Etheostoma 
phytophilum), Alabama moccasinshell (Medionidus acutissimus), dark 
pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), 
ovate clubshell (Pleurobema perovatum), triangular kidneyshell 
(Ptychobranchus greenii), upland combshell (Epioblasma metastriata), 
and southern acornshell (Epioblasma othcaloogensis).
    Appropriate water quality parameters to support the Black Warrior 
waterdog's primary prey base and other listed species in the Basin 
include:
     Water that lacks harmful levels of pollutants, including 
inorganic contaminants such as copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 12-
15);
     Water temperature not exceeding 85 [deg]F;
     Dissolved oxygen 5.5 milligrams per liter (mg/L) or 
greater;
     Turbidity of an average monthly reading of 15 
nephelometric turbidity units (NTUs; units to measure sediment 
discharge) above background readings;
     115 mg/L of total suspended solids (measured as mg/L of 
sediment in water) or less; and
     A specific conductance (ability of water to conduct an 
electrical current, based on dissolved solids in the water) of no 
greater than 225 microsiemens ([mu]S) per centimeter at 80 [deg]F 
(October 10, 2012; 77 FR 61664).
    The Black Warrior waterdog has similar hydrologic requirements as 
those of the Neuse River waterdog, which are usually found in streams 
greater than 15 meters (m) (50 feet (ft)) wide and deeper than 100 
centimeters (cm) (3 ft) and are not found in streams where water flow 
ceases under normal summer dry weather conditions (Braswell and Aston 
1985, pp. 26-30). However, based on eDNA detections, the Black Warrior 
waterdog could be using streams as narrow as 4 m (13 ft) wide (Godwin 
2014, pers. comm.). In regard to instream flow, the Black Warrior 
waterdog benefits from moderate stream velocity and continuous daily 
discharge that allows for longitudinal connectivity (the pathway along 
the entire length of a stream).
    The quality of the chemical and physical environment of the streams 
in the upper Black Warrior River Basin is essential to the survival of 
the Black Warrior waterdog. Optimal water quality lacks harmful levels 
of pollutants, including inorganic contaminants such as copper, 
arsenic, mercury, and cadmium; organic contaminants such as human and 
animal waste products; endocrine-disrupting chemicals; pesticides; 
nitrogen, potassium, and phosphorus fertilizers; and petroleum 
distillates (ADEM 2014, pp. 13-15). A decrease in water quality and 
instream flow would cause a decline in the major food species for the 
Black Warrior waterdog.
    Natural variations of instream flows maintain the stream bottom 
substrates, providing oxygen and other attributes to various 
invertebrate life stages. Sedimentation contributes to turbidity of the 
water and has been shown to reduce photosynthesis in aquatic plants, 
suffocate aquatic insects, smother aquatic eggs, clog gills, and fill 
in essential interstitial spaces used by aquatic organisms for spawning 
and foraging. Sedimentation has been shown to wear away and suffocate 
periphyton (organisms that live attached to objects underwater) and 
disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and 
Welch 2004, pp. 132-135).
Cover or Shelter
    Suitable substrates for the Black Warrior waterdog are dominated by 
clay or bedrock with little sand, and also contain abundant rock 
crevices and rock slabs for retreats (shelter) and areas for egg 
laying. Based on capture data, the Black Warrior waterdog utilizes leaf 
pack for shelter from predators and as foraging areas for prey species.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Little is known about the specific requirements of Black Warrior 
waterdog's reproduction. Based on Neuse River waterdog research, 
breeding sites are large bedrock outcrops or large boulders with sand 
and gravel beneath them (Ashton 1985, p. 95). Data collected from the 
Cincinnati Zoo (unpublished) indicate that the Black Warrior waterdog 
has similar tendencies of depositing eggs under rock slabs or in rock 
crevices, and the female guarding the eggs. Juvenile Black Warrior 
waterdogs are often found in leaf packs in the stream.
    Sedimentation can be destructive to Black Warrior waterdogs and 
their habitat when it contains toxicants and is excessive. Bailey 
(2000, p. 2) reported that Black Warrior waterdogs are virtually in 
constant contact with the substrate and; therefore, also with any toxic 
chemicals present. He also reported that juveniles and adults are 
impacted by the exposure. Further, excessive sedimentation of the 
crevices and leaf packs removes foraging, feeding, breeding, and 
retreat areas for the Black Warrior waterdog (Laschet 2014, pers. 
obs.).
Habitats Protected From Disturbance or Representative of the Historical 
Geographical and Ecological Distributions of the Species
    Currently, there are no areas that are undisturbed or that are 
representative of the historical geographical and ecological 
distribution of the species that the Black Warrior waterdog typically 
inhabits. The Bankhead National Forest is an area that can reveal a 
glimpse of representative historical geographical and ecological 
features of the species' habitat and is currently considered the 
stronghold of the species. Streams in this area typically are 
geomorphically stable with substrate consisting of clay or bedrock with 
little sand, and containing abundant rock crevices and rock slabs. 
These streams also contain cool, clean, flowing water having a 
dissolved oxygen level of 5.5 mg/L or higher; moderate water velocity; 
aquatic macroinvertabrate prey items; leaf packs; and adequate water 
quality (ADEM 2010, pp. 1-3).
    In summary, based on the information described above, we have 
determined that the following physical or biological features are 
essential to the conservation of the Black Warrior waterdog.
    (1) Geomorphically stable, medium to large streams (typically 4 m 
(13 ft) wide or greater) with:
    (a) Substrate consisting of clay or bedrock with little sand, and 
containing abundant rock crevices, rock slabs, and leaf packs;
    (b) Moderate water velocity; and
    (c) Prey base of aquatic macroinvertebrates.
    (2) Water that lacks harmful levels of pollutants, including 
inorganic contaminants such as copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorus fertilizers; and petroleum distillates.
    (3) Appropriate water quality parameters to support Black Warrior 
waterdog and primary prey base, including:
    (a) Water temperature not exceeding 85 [deg]F;
    (b) Dissolved oxygen 5.5 mg/L or greater;

[[Page 271]]

    (c) Turbidity of an average monthly reading of 15 NTUs above 
background readings;
    (d) 115 mg/L of total suspended solids or less; and
    (e) A specific conductance of no greater than 225 [mu]S per 
centimeter at 80 [deg]F.
Special Management Considerations or Protection
    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    The features essential to the conservation of the Black Warrior 
waterdog may require special management considerations or protections 
to reduce the following threats: (1) Urbanization activities and 
inadequate stormwater management (such as stream channel modification 
for flood control or gravel extraction) that could cause an increase in 
bank erosion; (2) significant changes in the existing flow regime 
within the streams due to water diversion or withdrawal; (3) 
significant alteration of water quality; (4) significant alteration in 
quantity of groundwater, prevention of water percolating into the 
aquifer recharge zone, and alteration of spring discharge sites; (5) 
significant changes in stream bed material composition and quality due 
to changes in stream flow characteristics, construction projects, and 
maintenance activities; (6) off-road vehicle use; (7) sewer, gas, and 
water easements; (8) bridge construction; (9) culvert and pipe 
installation; and (10) other watershed and floodplain disturbances that 
release sediments or nutrients into the water.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of certified BMPs designed to reduce 
sedimentation, erosion, and bank side destruction; select harvest of 
trees along banks, and leaving 50 percent canopy cover (of deciduous 
trees) along banks; moderation of surface and ground water withdrawals 
to maintain natural flow regimes; increased use of stormwater 
management and reduction of stormwater flows into the systems; 
preservation of headwater springs and spring runs; regulation of off-
road vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    These management activities could protect the physical or 
biological features essential for the conservation of the species by 
eliminating, or reducing to negligible levels, the threats affecting 
the physical and biological features of each unit. The major threats to 
the Black Warrior waterdog habitat are sedimentation, water quality 
degradation (increased nutrients, turbidity, and toxins), and 
fragmentation from impoundments.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b) we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are designating critical 
habitat in areas within the geographical area occupied by the Black 
Warrior waterdog at the time of listing in 2017. We are not designating 
any areas outside the geographic area occupied by the species because 
we did not find any areas that were essential for the conservation of 
the species (see explanation under response to comment 11, above).
    For the purpose of designating critical habitat for the Black 
Warrior waterdog, we defined the geographical area currently occupied 
by the species. We used information from surveys and reports prepared 
by the Alabama Department of Conservation and Natural Resources, 
Alabama Geological Survey, Alabama Natural Heritage Program, Auburn 
University, Alabama Power Company, U.S. Forest Service, Natural 
Resources Conservation Service, and Service to identify the specific 
locations occupied by the Black Warrior waterdog. Currently, occupied 
habitat for the species is isolated and limited to four units. Within 
these four units, the species is located within seven tributaries in 
the Black Warrior River Basin. Three of the tributaries are on Bankhead 
National Forest (Winston County) and include Sipsey Fork, Brushy Creek, 
and Rush Creek. The other four tributaries are Locust Fork; Gurley 
Creek, which feeds into Locust Fork (Blount and Jefferson Counties); 
Blackwater/Browns Creek in Winston County; and Yellow Creek in 
Tuscaloosa County (Godwin 2014, entire). We have determined that these 
four units (which include all seven tributaries)--Sipsey Fork, Locust 
Fork, Blackwater Creek, and Yellow Creek--meet the criteria for 
designation as critical habitat. As discussed below, some of these 
units contain all of the identified elements of physical or biological 
features and support multiple life-history processes. Some units 
contain only some elements of the physical or biological features 
necessary to support the Black Warrior waterdog's particular use of 
that habitat.

Mapping Black Warrior Waterdog Critical Habitat

    In identifying critical habitat units for the Black Warrior 
waterdog, we proceeded through a multi-step process. We obtained and 
reviewed historical records for the Black Warrior waterdog's 
distribution from Bankhead National Forest and Alabama Natural Heritage 
Program, as well as both published and unpublished documentation from 
our files. Once the historical range was determined, we looked at 
whether the physical and biological features were present at these 
historical sites. Then, we reviewed surveys conducted over the last 8 
years, including surveys currently being undertaken. We conducted 
species present-or-absent surveys of known and historical sites and 
sampled and observed the habitat. Since the Black Warrior waterdog is 
difficult to detect and capture, we contracted with Alabama Natural 
Heritage Program and Auburn University to conduct sampling surveys 
including the use of eDNA. With the survey results, we confirmed the 
Black Warrior waterdog's distribution in the Black Warrior River Basin. 
We determined occupied areas with data collected from surveys conducted 
over the last 8 years to present. We considered areas that do not have 
recent capture or sighting data to be unoccupied by the species.
    Our approach to delineating critical habitat units was applied in 
the following manner:
    (1) We overlaid Black Warrior waterdog locations into a GIS 
database. This provided us with the ability to examine slope, 
elevation, geologic type, hydrologic factors, vegetation community, and 
topographic features. These data points verified the previously 
recorded elevation ranges for Black Warrior waterdog.
    (2) In addition to the GIS layers listed above, we then excluded 
impoundments and dams as barriers for the species, as described in 
Physical or Biological Features, above.
    (3) We then drew critical habitat boundaries that captured the 
locations as discussed above. The final critical habitat designation 
was then mapped using Projected Coordinate System,

[[Page 272]]

NAD 1983 UTM Zone 16N with a Projection of Transverse Mercator.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for the Black Warrior waterdog. The scale 
of the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands would not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the 
physical or biological features in the adjacent critical habitat.
    We are designating as critical habitat streams that we have 
determined are occupied at the time of listing and contain physical or 
biological features to support life-history processes essential to the 
conservation of the species.
    Four units were designated based on one or more of the elements of 
physical or biological features being present to support the Black 
Warrior waterdog's life processes. Some units contained all of the 
identified elements of physical or biological features and supported 
multiple life processes. Some units contained only some elements of the 
physical or biological features necessary to support the Black Warrior 
waterdog's particular use of that habitat.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-2016-0031, on the Service's 
website at https://www.fws.gov/daphne/, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT, 
above).

Final Critical Habitat Designation

    We are designating approximately 673 river kilometers (420 river 
miles) in five units as critical habitat for the Black Warrior 
waterdog. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the Black Warrior waterdog.
    All of the areas designated as critical habitat for the Black 
Warrior waterdog include stream and river channels within the normal 
high water line.
    Table 1 shows the occupancy status of each unit and units that 
overlap with existing critical habitat units for other federally listed 
species.

TABLE 1--Black Warrior Waterdog Critical Habitat Units and Existing Overlapping Critical Habitat Designation for
                                            Federally Listed Species
----------------------------------------------------------------------------------------------------------------
                                                                                     Existing
                                                      Private         Federal        critical      Total  length
         Unit                   Location          ownership  rkm/ ownership  rkm/  habitat  rkm/      rkm/rmi
                                                        rmi             rmi             rmi
----------------------------------------------------------------------------------------------------------------
1.....................  Yellow Creek............           30/19  ..............  ..............           30/19
2.....................  Locust Fork.............         391/243  ..............        * 101/63         391/243
3.....................  Blackwater Creek........          128/80  ..............  ..............          128/80
4.....................  Sipsey Fork.............            11/7          113/71       ** 103/64          124/78
                                                 ---------------------------------------------------------------
    Totals............  ........................         560/349          113/71         204/127         673/420
----------------------------------------------------------------------------------------------------------------
* Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis
  perovalis), ovate clubshell (Pleurobema perovatum), upland combshell (Epioblasma metastriata), triangular
  kidneyshell (Ptychobranchus greenii).
** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma
  othcaloogensis), triangular kidneyshell.

    We present brief descriptions of all the units, and reasons why 
they meet the definition of critical habitat for the Black Warrior 
waterdog, below. All units are within private ownership, except Unit 4, 
which also includes Federal ownership.

Unit 1: Yellow Creek, Tuscaloosa County, Alabama

    Unit 1 includes 30 rkm (19 rmi) of stream and river habitat. The 
unit consists of the headwaters of Yellow Creek to Holt Lake. This area 
is within the geographical area occupied at the time of listing (i.e., 
currently occupied). Godwin (2016, pers. comm.) reported a capture of a 
Black Warrior waterdog in this area. This area contains the following 
physical or biological features that are essential for the Black 
Warrior waterdog: Abundant rock crevices and rock slabs, leaf litter, 
and instream flow with moderate velocity and continuous daily discharge 
that allows for a longitudinal connectivity regime inclusive of both 
surface runoff and ground water sources and exclusive of flushing flows 
caused by stormwater runoff.
    Threats to the physical and biological features in Unit 1 that may 
require special management considerations or protection include:
     Agriculture, silviculture, and urbanization activities 
that could result in increased bank erosion;
     Significant changes in the existing flow regime due to 
inadequate stormwater management, water diversion, or water withdrawal;
     Significant alteration of water quality; and
     Significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge and road construction and maintenance; culvert and pipe 
installation; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.

Unit 2: Locust Fork, Blount, Etowah, Jefferson, and Marshall Counties, 
Alabama

    Unit 2 includes 391 rkm (243 rmi) of stream and river habitat. The 
unit consists of the headwaters of Locust Fork to Bankhead Lake, from 
the headwaters of Slab Creek to the confluence of Locust Fork, from the 
headwaters of Blackburn Fork to the confluence of Locust Fork, and from 
the headwaters of Gurley Creek to the confluence of Locust Fork. This 
area is

[[Page 273]]

within the geographical area occupied at the time of listing (i.e., 
currently occupied). Based on a literature review by Bailey (2000, p. 
1), Black Warrior waterdog specimens have been collected from the 
Locust Fork area. Black Warrior waterdogs were also collected in the 
upper Locust Fork in 2012 along with positive eDNA samples in this 
area. This area contains the following physical or biological features: 
Abundant rock crevices and rock slabs, leaf litter, and instream flow 
with moderate velocity and continuous daily discharge that allows for a 
longitudinal connectivity regime consisting of both surface runoff and 
ground water sources, exclusive of flushing flows caused by stormwater 
runoff, that are essential for the Black Warrior waterdog.
    Threats to the physical and biological features in Unit 2 that may 
require special management considerations or protection include:
     Agriculture, silviculture, and urbanization activities 
that could result in increased bank erosion;
     Significant changes in the existing flow regime due to 
inadequate stormwater management, water diversion, or water withdrawal;
     Significant alteration of water quality; and
     Significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge and road construction and maintenance; culvert and pipe 
installation; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.

Unit 3: Blackwater Creek, Walker and Winston Counties, Alabama

    Unit 3 includes 128 rkm (80 rmi) of stream and river habitat. The 
unit consists of the headwaters of Blackwater Creek to the confluence 
of Mulberry Fork, and from the headwaters of Brown Creek to the 
confluence of Blackwater Creek. This area is within the geographical 
area occupied at the time of listing based on a literature review by 
Bailey (2000, p. 1). Black Warrior waterdogs were collected in Brown 
Creek in 2006. Black Warrior waterdogs were likely still present based 
on eDNA results (Godwin 2014, pers. comm.). This area contains the 
following physical or biological features: Abundant rock crevices and 
rock slabs, leaf litter, and instream flow with moderate velocity and 
continuous daily discharge that allows for longitudinal connectivity 
regime consisting of both surface runoff and ground water sources, 
exclusive of flushing flows caused by stormwater runoff, that are 
essential for the Black Warrior waterdog.
    Threats to the physical and biological features in Unit 3 that may 
require special management considerations or protection include:
     Agriculture, silviculture, and urbanization activities 
that could result in increased bank erosion;
     Significant changes in the existing flow regime due to 
inadequate stormwater management, water diversion, or water withdrawal;
     Significant alteration of water quality; and
     Significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge and road construction and maintenance; culvert and pipe 
installation; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.

Unit 4: Sipsey Fork, Lawrence and Winston Counties, Alabama

    Unit 4 includes 124 rkm (78 rmi) of stream and river habitat. The 
unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake, 
from the headwaters of Brushy Creek to Lewis Smith Lake, from the 
headwaters of Rush Creek to the confluence of Brushy Creek, and from 
the headwaters of Capsey Creek to the confluence of Brushy Creek. This 
area falls within the boundary of Bankhead National Forest, although 
some areas are private inholdings.
    This area is within the geographical area occupied at the time of 
listing, based on recent captures (Godwin 2016, entire). This area 
contains the following physical or biological features: abundant rock 
crevices and rock slabs, leaf litter, and instream flow with moderate 
velocity and continuous daily discharge that allows for longitudinal 
connectivity consisting of both surface runoff and ground water 
sources, exclusive of flushing flows caused by stormwater runoff, that 
are essential for the Black Warrior waterdog.
    Threats to the physical and biological features in Unit 4 that may 
require special management considerations or protection include:
     Agriculture, silviculture, and urbanization activities 
that could result in increased bank erosion;
     Significant changes in the existing flow regime due to 
inadequate stormwater management, water diversion, or water withdrawal;
     Significant alteration of water quality; and
     Significant changes in stream bed material composition and 
quality as a result of construction projects and maintenance 
activities; off-road vehicle use; sewer, gas, and water easements; 
bridge and road construction and maintenance; culvert and pipe 
installation; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final regulation with a new definition of 
destruction or adverse modification on February 11, 2016 (81 FR 7214). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species. Such alterations may include, 
but are not limited to, those that alter the physical or biological 
features essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or

[[Page 274]]

authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the Black Warrior waterdog. Such 
alterations may include, but are not limited to, those that alter the 
physical or biological features essential to the conservation of these 
species or that preclude or significantly delay development of such 
features. As discussed above, the role of critical habitat is to 
support physical or biological features essential to the conservation 
of a listed species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Black Warrior waterdog. These activities include, 
but are not limited to:
    (1) Actions that would significantly alter water chemistry or 
temperature. Such activities could include, but are not limited to, 
release of chemicals, biological pollutants, or heated effluents into 
the surface water or connected groundwater at a point source or by 
dispersed release (non-point source). These activities could alter 
water conditions to levels that are beyond the tolerances of the 
species' prey items and result in direct or cumulative adverse effects 
to the Black Warrior waterdog and its lifecycle.
    (2) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, timber harvest, off-road vehicle use, 
and other watershed and floodplain disturbances. These activities could 
eliminate or reduce the habitat necessary for the growth and 
reproduction of the Black Warrior waterdog by increasing the sediment 
deposition to levels that would adversely affect its ability to 
complete its lifecycle.
    (3) Actions that would significantly alter channel morphology or 
geometry. Such activities could include, but are not limited to, 
channelization, impoundment, road and bridge construction, mining, 
dredging, and destruction of riparian vegetation. These activities may 
lead to changes in water flows and levels that would degrade or 
eliminate the Black Warrior waterdog and/or its habitat. These actions 
can also lead to increased sedimentation and degradation in water 
quality to levels that are beyond the tolerances of the Black Warrior 
waterdog or its prey items.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.'' There are no 
Department of Defense lands with a completed INRMP within the final 
critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if she determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless she determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the statute, as well as the legislative history, is 
clear that the Secretary has broad discretion regarding which factor(s) 
to use and how much weight to give to any factor. In this final rule, 
we have not considered any areas for exclusion from critical habitat.

[[Page 275]]

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, constitute 
our draft economic analysis of the proposed critical habitat 
designation and related factors (IEc 2015). The analysis, dated July 
15, 2015, was made available for public review from October 6, 2016, 
through December 5, 2016. Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the Black Warrior waterdog 
is summarized below and available in the screening analysis for the 
Black Warrior waterdog (IEc 2015, entire), available at https://www.regulations.gov in Docket No. FWS-R4-ES-2016-0031.
    The final critical habitat designation for the Black Warrior 
waterdog is likely to result, annually, in less than 2 formal 
consultations, 23 informal consultations, and 206 technical assistance 
efforts related to silviculture, mining, impoundments, commercial and 
residential development, pipelines, agriculture and other activities 
that impact water quality. According to the finding in the screening 
analysis, the administrative cost of addressing adverse modification in 
the consultations is estimated to be between about $410 to $9,000 per 
consultation. Accordingly, the incremental administrative cost is not 
likely to exceed $150,000 annually. This designation of critical 
habitat is not likely to cause more requirements under State or local 
regulations, nor is it expected to have perceptional effects on the 
markets.

Exclusions Based on Economic Impacts

    As discussed above, the Service considered the economic impacts of 
the critical habitat designation and the Secretary is not exercising 
his discretion to exclude any areas from this designation of critical 
habitat for the Black Warrior waterdog based economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Alabama Ecological Services Field 
Office (see ADDRESSES) or by downloading from the internet at https://www.regulations.gov.

Exclusions Based on Impacts to National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), national-security or 
homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
Nevertheless, when designating critical habitat under section 4(b)(2), 
the Service must consider impacts on national security, including 
homeland security, on lands or areas not covered by section 
4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from 
the designation areas for which DoD, Department of Homeland Security 
(DHS), or another Federal agency has requested exclusion based on an 
assertion of national-security or homeland-security concerns. No DoD 
lands occur within or are affected by the designation.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements, or candidate conservation agreements with 
assurances, or whether there are non-permitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of tribal conservation plans and partnerships and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this final rule, we have determined that there are 
currently no permitted conservation plans or other non-permitted 
conservation agreements or partnerships for the Black Warrior waterdog, 
and the final designation does not include any tribal lands or tribal 
trust resources. We anticipate no impact on tribal lands, partnerships, 
permitted or non-permitted plans or agreements from this critical 
habitat designation. Accordingly, the Secretary is not exercising his 
discretion to exclude any areas from this final designation based on 
other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as

[[Page 276]]

independent nonprofit organizations; small governmental jurisdictions, 
including school boards and city and town governments that serve fewer 
than 50,000 residents; and small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself, and therefore, not required to evaluate the potential impacts 
to indirectly regulated entities. The regulatory mechanism through 
which critical habitat protections are realized is section 7 of the 
Act, which requires Federal agencies, in consultation with the Service, 
to ensure that any action authorized, funded, or carried out by the 
Agency is not likely to destroy or adversely modify critical habitat. 
Therefore, under section 7 only Federal action agencies are directly 
subject to the specific regulatory requirement (avoiding destruction 
and adverse modification) imposed by critical habitat designation. 
Consequently, it is our position that only Federal action agencies will 
be directly regulated by this designation. There is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities are directly regulated by this 
rulemaking, the Service certifies that the final critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with Black Warrior waterdog conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of

[[Page 277]]

designating critical habitat for the Black Warrior waterdog in a 
takings implications assessment. The Act does not authorize the Service 
to regulate private actions on private lands or confiscate private 
property as a result of critical habitat designation. Designation of 
critical habitat does not affect land ownership, or establish any 
closures, or restrictions on use of or access to the designated areas. 
Furthermore, the designation of critical habitat does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. However, Federal agencies are 
prohibited from carrying out, funding, or authorizing actions that 
would destroy or adversely modify critical habitat. A takings 
implications assessment has been completed and concludes that this 
designation of critical habitat for the Black Warrior waterdog does not 
pose significant takings implications for lands within or affected by 
the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of this final critical habitat designation with, 
appropriate State resource agencies in Alabama. We received comments 
from Alabama and have addressed them in the Summary of Comments and 
Recommendations section of the rule. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical and biological 
features of the habitat necessary to the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
these local governments in long-range planning (because these local 
governments no longer have to wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Black Warrior waterdog. 
The designated areas of critical habitat are presented on maps, and the 
rule provides several options for the interested public to obtain more 
detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands affected by the designation.

References Cited

    A complete list of all references cited is available on the 
internet at https://www.regulations.gov and upon request from the 
Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Alabama Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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


[[Page 278]]


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


0
2. Amend Sec.  17.11(h) by adding an entry for ``Waterdog, Black 
Warrior'' under ``AMPHIBIANS'' to the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name                Scientific name        Where listed      Status       applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Amphibians
 
                                                  * * * * * * *
Waterdog, Black Warrior..........  Necturus alabamensis  Wherever found.....        E   83 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 1/3/
                                                                                         2018.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (d) by adding an entry for ``Black 
Warrior Waterdog (Necturus alabamensis)'' in the same alphabetical 
order that the species appears in the table at Sec.  17.11(h), to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
Black Warrior Waterdog (Necturus alabamensis)
    (1) Critical habitat units are depicted for Blount, Etowah, 
Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston 
Counties, Alabama, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Black Warrior waterdog, which 
describe a riverine system with habitat to support all life-history 
stages of the Black Warrior waterdog, consists of the following 
components:
    (i) Geomorphically stable, medium to large streams (typically 4 
meters (m) (13 feet (ft)) wide or greater) with:
    (A) Substrate consisting of clay or bedrock with little sand, and 
containing abundant rock crevices, rock slabs, and leaf packs;
    (B) Moderate water velocity; and
    (C) Prey base of aquatic macroinvertebrates.
    (ii) Water that lacks harmful levels of pollutants, including 
inorganic contaminants such as copper, arsenic, mercury, and cadmium; 
organic contaminants such as human and animal waste products; 
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and 
phosphorus fertilizers; and petroleum distillates.
    (iii) Appropriate water quality parameters to support Black Warrior 
waterdog and primary prey base, including:
    (A) Water temperature not exceeding 85[deg] F;
    (B) Dissolved oxygen 5.5 milligrams per liter (mg/L) or greater;
    (C) Turbidity of an average monthly reading of 15 nephelometric 
turbidity units above background readings;
    (D) 115 mg/L of total suspended solids or less; and
    (E) A specific conductance of no greater than 225 microsiemens 
([mu]S) per centimeter at 80 [deg]F.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
February 2, 2018.
    (4) Critical habitat map units. Data layers defining map units were 
created from the USGS National Hydrography Datasets High Resolution 
Flowline layer using Universal Transverse Mercator (UTM) Zone 16N 
coordinates. Segments were mapped using 1983 UTM Zone 16 projection. 
The maps in this entry, as modified by any accompanying regulatory 
text, establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site at https://www.fws.gov/daphne/, at https://www.regulations.gov under Docket No. 
FWS-R4-ES-2016-0031, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
BILLING CODE 4333-15-P

[[Page 279]]

    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TR03JA18.010
    

[[Page 280]]


    (6) Unit 1: Yellow Creek; Tuscaloosa County, Alabama.
    (i) General description: Unit 1 is approximately 30 rkm (19 rmi) of 
stream and river habitat from the headwaters of Yellow Creek to Holt 
Lake.
    (ii) Map of Unit 1 follows:
    [GRAPHIC] [TIFF OMITTED] TR03JA18.011
    

[[Page 281]]


    (7) Unit 2: Locust Fork; Blount, Etowah, Jefferson, and Marshall 
Counties, Alabama.
    (i) General description: Unit 2 is approximately 391 rkm (243 rmi) 
of stream and river habitat from the headwaters of Locust Fork to 
Bankhead Lake, from the headwaters of Slab Creek to the confluence of 
Locust Fork, from the headwaters of Blackburn Fork to the confluence of 
Locust Fork, and from the headwaters of Gurley Creek to the confluence 
of Locust Fork.
    (ii) Map of Unit 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR03JA18.012
    

[[Page 282]]


    (9) Unit 3: Blackwater Creek; Walker and Winston Counties, Alabama.
    (i) General description: Unit 3 consists of approximately 128 rkm 
(80 rmi) of stream and river habitat from the headwaters of Blackwater 
Creek to the confluence of Mulberry Fork, from the headwaters of Brown 
Creek to the confluence of Blackwater Creek.
    (ii) Map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TR03JA18.013
    

[[Page 283]]


    (10) Unit 4: Sipsey Fork; Lawrence and Winston Counties, Alabama.
    (i) General description: Unit 4 consists of approximately 124 rkm 
(78 rmi) of stream and river habitat from the headwaters of Sipsey Fork 
to Lewis Smith Lake, from the headwaters of Brushy Creek to Lewis Smith 
Lake, from the headwaters of Rush Creek to the confluence of Brushy 
Creek, and from the headwaters of Capsey Creek to the confluence of 
Brushy Creek.
    (ii) Map of Unit 4 follows:
    [GRAPHIC] [TIFF OMITTED] TR03JA18.014
    

[[Page 284]]


* * * * *

    Dated: November 21, 2017.
James W. Kurth,
Deputy Director for U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director for U.S. Fish and Wildlife Service.
[FR Doc. 2017-28386 Filed 1-2-18; 8:45 am]
 BILLING CODE 4333-15-C