Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic Pigtoe, 51570-51609 [2018-21798]

Download as PDF 51570 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2018–0046; 4500030113] RIN 1018–BD12 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic Pigtoe Fish and Wildlife Service, Interior. ACTION: Proposed rule and 12-month finding. AGENCY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Atlantic pigtoe (Fusconaia masoni) as endangered or threatened under the Endangered Species Act of 1973, as amended (Act). The Atlantic pigtoe is a freshwater mussel native to Virginia, North Carolina, South Carolina, and Georgia. After review of the best available scientific and commercial information, we find that listing the Atlantic pigtoe as a threatened species is warranted. Accordingly, we propose to list it as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). We also propose to designate critical habitat under the Act. In total, approximately 542 river miles (872 river kilometers) in Virginia and North Carolina fall within the boundaries of the proposed critical habitat designation. Finally, we announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat. DATES: We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 26, 2018. ADDRESSES: Written comments: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter FWS–R4–ES–2018–0046, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on khammond on DSK30JT082PROD with PROPOSAL10 SUMMARY: VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R4–ES–2018– 0046, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Availability of supporting materials: For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at https:// www.fws.gov/southeast/, at https:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0046, and at the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for the critical habitat designation will also be available at the Service website and Field Office set out above, and may also be included in the preamble and/or at https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, 551F Pylon Drive, Raleigh, NC 27606; telephone 919–856– 4520; or facsimile 919–856–4556. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Act, if we determine that a species may be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule. This rule proposes the listing of the Atlantic pigtoe (Fusconaia masoni) as a PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 threatened species with a 4(d) rule and proposes the designation of critical habitat. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat degradation (Factor A), resulting from the cumulative impacts of land use change and associated watershed-level effects on water quality, water quantity, habitat connectivity, and instream habitat suitability, poses the largest risk to future viability of the Atlantic pigtoe. This stressor is primarily related to habitat changes: The buildup of fine sediments, the loss of flowing water, instream habitat fragmentation, and impairment of water quality, and it is exacerbated by the effects of climate change (Factor E). Section 4(b)(2) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed if such areas are essential to the conservation of the species. In accordance with section 4(b)(2) of the Act, we prepared an analysis of the economic impacts of the proposed critical habitat designation. Peer Review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of six appropriate specialists regarding the species status assessment report, which informed th this proposed rule. The purpose of peer review is to ensure that the science behind our listing determination, the critical habitat E:\FR\FM\11OCP2.SGM 11OCP2 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 determination, and 4(d) rule are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in mussel biology, habitat, and stressors to the species. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. We particularly seek comments concerning: (1) The Atlantic pigtoe’s biology, range, and population trends, including: (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species, its habitat, or both. (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species. (5) Information on activities that are necessary and advisable for the conservation of the Atlantic pigtoe to include in a 4(d) rule for the species. The Service is proposing such measures that are necessary and advisable for the conservation of the species, and will evaluate ideas provided by the public in considering the prohibitions we should include in the 4(d) rule. (6) The reasons why we should or should not designate habitat as ‘‘critical VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 habitat’’ under section 4 of the Act including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent. (7) Specific information on: (a) The amount and distribution of Atlantic pigtoe habitat; (b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why; (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and (d) What areas not occupied at the time of listing are essential for the conservation of the species and why. (8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be impacted. (10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and the description of the environmental impacts in the draft environmental assessment is complete and accurate. (11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. (12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 51571 commercial information you include. All comments submitted electronically via https://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on https://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Please note that submissions merely stating support for or opposition to the listing action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ Public Hearing Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be received by the date specified in DATES at the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. Species Status Assessment A species status assessment (SSA) team prepared an SSA report for the Atlantic pigtoe. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in mussel E:\FR\FM\11OCP2.SGM 11OCP2 51572 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this proposal can be found on the Service’s Southeast Region website at https:// www.fws.gov/southeast/ and at https:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0046. The draft economic analysis is available at https:// www.fws.gov/southeast/, at https:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0046, and at the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). khammond on DSK30JT082PROD with PROPOSAL10 Previous Federal Actions We identified the Atlantic pigtoe as a Category 2 candidate species in our November 21, 1991, Animal Candidate Review for Listing as Endangered or Threatened Species (56 FR 58804). Category 2 candidates were defined as taxa for which we had information that listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule. In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of species as Category 2 candidates; therefore, the Atlantic pigtoe was no longer a candidate species. On April 20, 2010, we were petitioned to list 404 aquatic species in the southeastern United States, including Atlantic pigtoe. In response to the petition, we completed a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we announced our finding that the petition contained substantial information that listing may be warranted for numerous species, including the pigtoe. On June 17, 2014, the Center for Biological Diversity (CBD) filed a complaint against the Service for failure to complete a 12-month finding for the Atlantic pigtoe in accordance with statutory deadlines. On September 22, 2014, the Service and the CBD filed stipulated settlements in the District of Columbia, agreeing that the Service would submit to the Federal Register a 12-month finding for the Atlantic pigtoe no later than September 30, 2018 (Center for Biological Diversity v. Jewell, case 1:14–CV–01021–EGS/JMF). This document constitutes our concurrent 12-month warranted petition finding, proposed listing rule, and proposed critical habitat rule. I. Proposed Listing Determination Background A thorough review of the taxonomy, life history, and ecology of the Atlantic pigtoe is presented in the SSA report VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 (Service 2017; available at https:// www.fws.gov/southeast/). The Atlantic pigtoe is a small freshwater mussel with a subrhomboidal shaped shell. Although larger specimens exist, the Atlantic pigtoe rarely exceeds 50 millimeters (mm) (2 inches (in)) in length. The known historical range of the Atlantic pigtoe included 12 populations in Atlantic river basins from Virginia to Georgia. However, surveys conducted from 2005 to 2015 indicate that the currently occupied range of the Atlantic pigtoe consists of seven populations in Virginia and North Carolina. The Atlantic pigtoe is dependent on clean, moderate-flowing water with high dissolved oxygen content in creek and riverine environments. Historically, the most abundant populations existed in creeks and rivers with excellent water quality, and where stream flows were sufficient to maintain clean, silt-free substrates. It is associated with gravel and coarse sand substrates at the downstream edge of riffles (shallow water with rapid currents running over gravel or rocks), and less commonly occurs in cobble, silt, or sand detritus mixtures. Because this species prefers more pristine conditions, it typically occurs in headwaters of rural watersheds. The Atlantic pigtoe is presumed to be an omnivore. Adults primarily filter feed on a wide variety of microscopic particulate matter suspended in the water column, including phytoplankton, zooplankton, bacteria, detritus, and dissolved organic matter, although juveniles tend to pedal feed in the sediment (Alderman and Alderman 2014, p. 9). Like most freshwater mussels, the Atlantic pigtoe has a unique life cycle that relies on fish hosts for successful reproduction. Following release from the female mussel, sticky packets of floating glochidia (larvae) attach to the gills and scales of host minnows. The larvae stay attached to the host fish until they complete metamorphosis, when they release from the fish and fall to the substrate. The Atlantic pigtoe has been documented in all major river basins in the Atlantic coastal drainages from the James River Basin in Virginia south to the Altamaha River Basin in Georgia, and from the foothills of the Appalachian Mountains to the Coastal Plain. However, abundance and distribution of the species has declined, with the species currently occupying approximately 40% of its historical range. Most of the remaining populations are small and fragmented, only occupying a fraction of reaches that PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 were historically occupied. Current surveys found Atlantic pigtoes remain in seven populations in Virginia and North Carolina, however only three populations have multiple documented occurrences within the past 10 years. This decrease in abundance and distribution has resulted in largely isolated contemporary populations. Evidence suggests that the range reduction of the species corresponds to habitat degradation resulting from the cumulative impacts of land use change and associated watershed-level effects on water quality, water quantity, habitat connectivity, and instream habitat suitability. Summary of Biological Status and Threats Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines an endangered species as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a threatened species as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether any species is an ‘‘endangered species’’ or a ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. In our determination, we correlate the threats acting on the species to the factors in section 4(a)(1) of the Act. We summarize the status assessment for Atlantic pigtoe below. The SSA report documents the results of our comprehensive biological status review for the Atlantic pigtoe, including an assessment of the potential stressors to the species. It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report. To assess Atlantic pigtoe viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, ‘‘the three Rs,’’ (3Rs)) (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 changes); and redundancy refers to the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species’ ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species’ viability. The SSA process can be categorized into three sequential stages. During the first stage, we used the 3Rs to evaluate individual mussel life-history needs. During the next stage, we assessed the historical and current condition of species’ demographics and habitat characteristics, including explaining how the species arrived at its current condition. In the final stage of the SSA, we made predictions about the species’ responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We used this information to inform our regulatory decision in this finding. To evaluate the current and future viability of the Atlantic pigtoe, we assessed a range of conditions to allow us to consider the species’ resiliency, representation, and redundancy. Populations were delineated using the 12 river basins that Atlantic pigtoe mussels historically occupied: the James, Chowan, Roanoke, Tar, Neuse, Cape Fear, Pee Dee, Catawba, Edisto, Savannah, Ogeechee, and Altamaha River basins. Because the river basin level is at a very coarse scale, populations were further delineated using management units (MUs). The MUs were defined as one or more U.S. Geological Survey Hydrological Unit Code (HUC) 10 watersheds that species experts identified as the most appropriate unit for assessing population-level resiliency. To provide context for the current condition of the species using the 3Rs, we considered the historic range as context for the species’ resiliency, redundancy, and representation on the landscape in the past. However, in addressing the current condition of the 3Rs, only extant populations were analyzed. To assess resiliency, we qualitatively analyzed data related to three population factors (MU occupancy, recruitment, and abundance) and four PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 51573 habitat elements (water quality/flow, water quantity, instream substrate, and habitat connectivity). Overall population condition rankings and habitat condition rankings were determined by combining these factors and elements. We described representation for the Atlantic pigtoe in terms of river basin variability (known from 12 historical river basins, currently extant in 7), physiographic variability (Mountains, Piedmont, and Coastal Plain), and historic latitudinal variability (Virginia south to Georgia). We assessed Atlantic pigtoe redundancy by first evaluating occupancy within each of the hydrologic units (i.e., HUC10s) that constitute MUs, and then evaluating occupancy at the MU, and ultimately the population, level. Current Condition of Atlantic Pigtoe The historical range of the Atlantic pigtoe included 12 populations in Atlantic river basins from Virginia to Georgia. The surveys conducted from 2005 to 2015 indicate that the currently occupied range of the Atlantic pigtoe consists of 14 MUs within 7 populations in Virginia and North Carolina, in the Tar, Neuse, James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee River basins. The species is presumed extirpated from the southern portion of its range, including the Catawba, Edisto, Savannah, Ogeechee, and Altamaha River basins. The Atlantic pigtoe currently (defined as the observation of at least one specimen from 2005 to 2015) occupies 14 of the 81 historically occupied MUs. At the population level, the overall current condition (= resiliency) of the extant populations was estimated to be high for the Tar Population; moderate for the Neuse Population; and low for the James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations. The Atlantic pigtoe currently has reduced adaptive potential due to limited representation (compared with historical representation) in seven river basins and three physiographic regions. The species retains 58 percent of its known river basin variability, but as discussed above distribution has been reduced in the James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations. In addition, although the species continues to maintain physiographic representation in all three regions it historically occupied, occupancy has decreased in each region. A 67 percent estimated loss has occurred in the Mountain region’s watersheds, 48 percent loss in the Piedmont region’s watersheds, and 76 percent loss in the Coastal Plain region’s E:\FR\FM\11OCP2.SGM 11OCP2 51574 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules watersheds. Latitudinal variability is also reduced and is largely limited to the central portions of its historical range, primarily in the Tar and Neuse basins. Redundancy was estimated as the number of historically occupied MUs that remain currently occupied. The species has limited redundancy within the James, Chowan, Roanoke, and Cape Fear River populations, and only two populations (Tar and Neuse) have multiple moderate or highly resilient MUs. Overall, the species has decreased redundancy across its range due to an estimated 60 percent reduction in occupancy compared to historical levels. khammond on DSK30JT082PROD with PROPOSAL10 Risk Factors for Atlantic Pigtoe Aquatic systems face a multitude of natural and anthropogenic factors that may impact the status of species within those systems (Neves et al. 1997, p. 44). Generally, these factors can be categorized as either environmental stressors (e.g., development, agriculture practices, or forest management) or systematic changes (e.g., climate change, invasive species, dams or other barriers). The largest threats to the future viability of the Atlantic pigtoe consist of habitat degradation (Factor A) from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity. All of these threats are exacerbated by the effects of climate change (Factor E). A brief summary of these primary stressors is presented below; for a full description of these stressors, refer to chapter 4 of the SSA report. No existing regulatory mechanisms adequately address these threats to the Atlantic pigtoe such that it does not warrant listing under the Act (Factor D). We did not find that the species faces significant threats from overutilization for commercial, recreational, scientific, or education purposes (Factor B), or from disease or predation (Factor C). Environmental Stressors Development: Development refers to urbanization of the landscape, including (but not limited to) land conversion for urban and commercial use, infrastructure (roads, bridges, utilities), and urban water uses (water supply reservoirs, wastewater treatment, etc.). The effects of urbanization may include alterations to water quality, water quantity, and habitat (both in stream and streamside) (Ren et al. 2003, p. 649; Wilson 2015, p. 424). These alterations adversely affect both Atlantic pigtoe adults, which require clear, flowing water with a temperature less than 35 degrees Celsius (°C) (95 degrees VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 Fahrenheit (°F)) and a dissolved oxygen greater than 3 milligrams per liter (mg/ L), and juveniles, which require very specific interstitial chemistry to complete that life stage: low salinity (similar to 0.9 parts per thousand (ppt)), low ammonia (similar to 0.7 mg/L), low levels of copper and other contaminants, and dissolved oxygen greater than 1.3 mg/L. Impervious surfaces associated with development negatively affect water quality when pollutants that accumulate on impervious surfaces are washed directly into the streams during storm events. Storm water runoff affects such water quality parameters as temperature, pH, dissolved oxygen, and salinity, which in turn alter the water chemistry and could make habitat unsuitable for the Atlantic pigtoe. Concentrations of contaminants, including nitrogen, phosphorus, chloride, insecticides, polycyclic aromatic hydrocarbons, and personal care products, increase with urban development (Giddings et al. 2009, p. 2; Bringolf et al. 2010, p. 1311). Urban development can also lead to increased variability in streamflow, typically increasing the amount of water entering a stream after a storm and decreasing the time it takes for the water to travel over the land before entering the stream (Giddings et al. 2009, p. 1). Stream habitat is altered either directly via channelization or clearing of riparian areas, or indirectly via high stream flows that reshape the channel and cause sediment erosion (Giddings et al. 2009, p. 2). Impervious surfaces associated with increased development cause rain water to accumulate and flow rapidly into storm drains, thereby becoming overheated, which can stress or kill mussels when it enters streams. Pollutants like gasoline, oil, and fertilizers are also washed directly into streams and can kill mussels and other aquatic organisms. The large volumes and velocity of water, combined with the extra debris and sediment entering streams following a storm, can stress, displace, or kill Atlantic pigtoe and the host fish species on which they depend. Many of the known host fish of the Atlantic pigtoe can tolerate short periods of turbidity associated with rain events; however, the cyprinid host fish typically do not persist in streams with consistently high sedimentation. Changes in flow may also result in turbidity that can reduce feeding efficiency and eliminate spawning habitat due to lack of clean gravel substrate. A further risk of urbanization is the accompanying road development that often results in improperly constructed PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 culverts at stream crossings. These culverts act as barriers, either if flow through the culvert varies significantly from the rest of the stream, or if the culvert ends up being perched above the stream bed so that host fish (and, therefore, the Atlantic pigtoe) cannot pass through them. This leads to loss of access to quality habitat, as well as fragmented habitat and a loss of connectivity between populations. This can limit both genetic exchange and recolonization opportunities. All of the river basins within the range of this species are affected to some extent by development, ranging from 3 percent of the Black River subbasin in the Cape Fear River Basin to 70 percent of the Crabtree Creek subbasin in the Neuse River Basin (based on the 2011 National Land Cover Data). The Neuse River basin in North Carolina contains one-sixth of the entire State’s population, indicating heavy development pressure on the watershed. As another example, the Middle James MU (in the James population) contains 159 impaired stream miles, 2 major discharges, 32 minor discharges, and over 1,300 road crossings. Similarly, the Muddy Creek MU is currently made up of 12.3 percent impervious surfaces. For complete data on all of the populations, refer to appendix C of the SSA report. Agricultural Practices: The main impacts to the Atlantic pigtoe from agricultural practices are from nutrient pollution and water pumping for irrigation. Fertilizers and animal manure, which are both rich in nitrogen and phosphorus, are the primary sources of nutrient pollution from agricultural sources when agricultural best management practices are not used. Excess nutrients impact water quality when it rains or when water and soil containing nitrogen and phosphorus wash into nearby waters or leach into the water table and ground waters causing algal blooms. These algal blooms can harm freshwater mussels by suffocating host fish and decreasing available oxygen in the water column. It is common practice to pump water for irrigation from adjacent streams or rivers into a reservoir pond, or to spray the stream or river water directly onto crops. If the water withdrawal is excessive or done illegally, this may cause impacts to the amount of water available to downstream sensitive areas during low flow months, resulting in dewatering of channels and stranding of mussels, leading to desiccation and death. The Cape Fear River basin has 33 reservoirs, many of them supplying water to some of the most populated areas in North Carolina, including the Triad (Greensboro and High Point), E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules Chapel Hill, Fayetteville, and Wilmington. All told, this basin contains one-fifth of the entire State’s population and is the most industrialized basin, as well as home to the most large-scale livestock operations in the State. However, according to the 2011 National Land Cover Data, all of the watersheds within the range of the Atlantic pigtoe are affected by agricultural land uses, most with 20 percent or more of the watershed having been converted for agricultural use. Forest Management: A forested landscape provides many ideal conditions for aquatic ecosystems, and managed forested watersheds tend to have more natural watershed functions and better water quality than other land uses (Edwards et al. 2015, p. 60). Silvicultural activities, when performed according to strict forest practices guidelines (FPGs) or best management practices (BMPs), can retain adequate conditions for aquatic ecosystems; however, when FPGs/BMPs are not followed, these practices can also contribute to the myriad of stressors facing aquatic systems in the Southeast. Both small- and large-scale forestry activities have been shown to have a significant impact upon the physical, chemical, and biological characteristics of adjacent small streams (Allan 1995, p. 107). The clearing of large areas of forested wetlands and riparian systems can eliminate shade provided by these canopies, exposing streams to more sunlight and increasing the instream water temperature. The increase in stream temperature and light after deforestation alters the macroinvertebrate and other aquatic species richness and abundance composition in streams (Couceiro et al. 2007, p. 272; Kishi et al. 2004, p. 283; Caldwell et al. 2014, p. 3). As stated above, the Atlantic pigtoe is sensitive to changes in temperature, and sustained temperature increases will stress and possibly lead to mortality for these mussels. Forestry activities often include the construction of logging roads through the riparian zone, which can directly degrade nearby stream environments. Roads can cause localized sedimentation, as well as sedimentation traveling downstream into more sensitive habitats. These effects lead to stress and mortality for the Atlantic pigtoe, as discussed in ‘‘Development,’’ above. While BMPs are currently widely adhered to today, they were not always common practice in the past. The average implementation rate of BMPs in the southeastern States is at 92 percent, including approximately 88 percent for Virginia and 90 percent for North VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 Carolina. While improper implementation is rare, it can have drastic negative effects on sensitive aquatic species like freshwater mussels. One small area of riparian zone that is removed can cause sedimentation and habitat degradation for miles downstream. Systemic Changes Effects of Climate Change: Aquatic systems are encountering changes and shifts in seasonal patterns of precipitation and runoff as a result of climate change. While mussels evolved in habitats that experience seasonal fluctuations in discharge, global weather patterns can have an impact on the normal regimes (e.g., El Nin˜o or La Nin˜a). Both excessively high (i.e., floods and storms) and excessively low (i.e., droughts) flows can adversely affect the species. As to droughts, even naturally occurring low flow events can cause mussels to become stressed, either because they exert significant energy to move to deeper waters or they may succumb to desiccation. Because late summer and early fall are stressful periods for the species due to low flows, droughts during this time of year can be especially harmful, resulting in increased mortality rates. Atlantic pigtoe habitat must have adequate flow to deliver oxygen, enable passive reproduction, and deliver food to filterfeeding mussels. Further, flow removes contaminants and fine sediments from interstitial spaces preventing mussel suffocation. Droughts have impacted all river basins within the range of Atlantic pigtoe, from an ‘‘abnormally dry’’ ranking for North Carolina and Virginia in 2001 on the Southeast Drought Monitor scale to the highest ranking of ‘‘exceptionally dry’’ for the entire range of the species in 2002 and 2007. In 2015, the entire Southeast ranged from ‘‘abnormally dry’’ to ‘‘moderate drought’’ or ‘‘severe drought.’’ These data covered the first week in September, which, as noted above, is a very sensitive time for drought to be affecting the species. The Middle Neuse tributaries of the Neuse River basin had consecutive drought years from 2005 through 2012, indicating sustained stress on the species over a long period of time. Increases in the frequency and strength of storms events alter stream habitat. Stream habitat is altered either directly via channelization or clearing of riparian areas, or indirectly via high stream flows that reshape the channel and cause sediment erosion. The large volumes and velocity of water, combined with the extra debris and PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 51575 sediment entering streams following a storm, stress, displace, or kill Atlantic pigtoe and the host fish species on which they depend. Sedentary freshwater mussels have limited ability to seek refuge from droughts and floods, and they are completely dependent on specific water temperatures to complete their physiological requirements. Changes in water temperature lead to stress, increased mortality, and also increase the likelihood of extinction. Invasive Species: Nonnative species are invading aquatic communities and altering biodiversity by competing with native species for food, light, or breeding and nesting areas in many areas across the range of Atlantic pigtoe. For example, the Asian clam (Corbicula fluminea) alters benthic substrates, competes with native species for limited resources, and causes ammonia spikes in surrounding water when they die off en masse. Juvenile mussels need low levels of ammonia to survive, and studies show that freshwater mollusks are more sensitive than previously known to some chemical pollutants, including ammonia. The Asian clam is ubiquitous across the southeastern United States and is present in watersheds across the range of the Atlantic pigtoe. The flathead catfish (Pylodictis olivaris) is an apex predator that feeds on almost anything, including other fish, crustaceans, and mollusks. Predation by flathead catfish diminishes host fish communities, reducing the amount of fish available as hosts for the mussels to complete their glochidia life stage. Introductions of flathead catfish into rivers in North Carolina and Georgia have led to steep declines in numbers of native fish (Service 2017). The flathead catfish has been documented in six of the seven river systems currently inhabited by the Atlantic pigtoe (James, Roanoke, Tar, Neuse, Cape Fear, and Yadkin-Pee Dee). Hydrilla (Hydrilla verticillata), an aquatic plant, alters habitat, decreases flows, and contributes to sediment buildup in streams. Hydrilla occurs in several watersheds where the Atlantic pigtoe occurs, including recent documentation from the upper Neuse system and the Tar River. The dense growth is altering the flow in these systems and causing sediment buildup, which can cause suffocation in filterfeeding mussels. While data are lacking on hydrilla currently having populationlevel effects on Atlantic pigtoe, the spread of this invasive plant is expected to increase in the future. Barriers: Extinction and extirpation of North American freshwater mussels can E:\FR\FM\11OCP2.SGM 11OCP2 51576 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 be traced to impoundment and inundation of riffle habitats in all major river basins of the central and eastern United States. Upstream of dams, the change from flowing to impounded waters, increased depths, increased buildup of sediments, decreased dissolved oxygen, and the drastic alteration in resident fish populations can threaten the survival of mussels and their overall reproductive success. Downstream of dams, fluctuations in flow regimes, minimal releases and scouring flows, seasonal dissolved oxygen depletion, reduced or increased water temperatures, and changes in fish assemblages can also threaten the survival and reproduction of many mussel species. Because Atlantic pigtoes use smaller host fish (e.g., darters and minnows), they are even more susceptible to impacts from habitat fragmentation due to increasing distance between suitable habitat patches and a low likelihood of host fish swimming over that distance. Even improperly constructed culverts at stream crossings can act as significant barriers and have some similar effects as dams on stream systems (see discussion under Development, above). These barriers not only fragment habitats along a stream course, they also contribute to genetic isolation of the Atlantic pigtoe. Nearly all of the MUs containing Atlantic pigtoe populations have been impacted by dams, with as few as 2 dams in Mill Creek in the James River basin to 237 dams throughout the Middle Neuse basin (Service 2017, appendix D). The Middle Neuse also contains over 5,000 stream crossings, so connectivity in that basin has been severely affected by barriers. Only the Edisto River basin within the range of the Atlantic pigtoe has not been impacted by dams. Synergistic Effects In addition to impacting the species individually, it is likely that several of the above summarized risk factors are acting synergistically or additively on the species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in the Meherrin River MU, there are four stream reaches with 34 miles of impaired streams. They have low benthic-macroinvertebrate scores, low dissolved oxygen, low pH, and contain Escherichia coli (also known as E. coli). There are 16 non-major and 2 major discharges within this MU, along with 7 dams, and 676 road crossings. Additionally, droughts were recorded for 4 consecutive years (2007–2010) in this MU. The combination of all of these stressors on the sensitive aquatic species in this habitat has probably impacted Atlantic pigtoe, in that only two individuals have been recorded here since 2005. Conservation Actions The Service and State wildlife agencies are working with numerous partners to provide technical guidance and offering conservation tools to meet both species and habitat needs in aquatic systems in North Carolina. Land trusts are targeting key parcels for acquisition; Federal and State biologists are surveying and monitoring species occurrences; and, recently, there has been a concerted effort to ramp up captive propagation and species population restoration via augmentation, expansion, and reintroduction efforts. In 2014, North Carolina Wildlife Resources Commission staff and partners began a concerted effort to propagate the Atlantic pigtoe in hopes of augmenting existing populations in the Tar and Neuse River basins. In July 2015, 250 Atlantic pigtoes were stocked into Sandy Creek, a tributary of the Tar River. Annual monitoring to evaluate growth and survival is planned, and additional propagation and stocking efforts will continue in upcoming years (Service 2017, p. 59). Future Scenarios For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the needs of the species, the 3Rs were applied using four plausible future scenarios. We devised these scenarios by eliciting expert information on the primary stressors anticipated to affect the species into the future: Habitat loss and degradation due to urbanization and the effects of climate change. The models that were used to forecast both urbanization and climate change projected out 50 years in the future. For more detailed information on these models and their projections, please see the SSA report (Service 2017, chapter 3). For example, in scenario one, the ‘‘status quo’’ scenario, factors that influence current populations of the Atlantic pigtoe were assumed to remain constant over the 50-year time horizon. Climate models predict that, if emissions of greenhouse gasses continue to increase, the Southeast will experience an increase in low flow (drought) events. Likewise, this scenario assumed the ‘‘business as usual’’ pattern of urban growth, which predicts that urbanization will continue to increase rapidly (using simulations that point to a future in which the extent of urbanization in the Southeast is projected to increase by 101 to 192 percent). This continued growth in development means increases in impervious surfaces, increased variability in streamflow, channelization of streams or clearing of riparian areas, and other negative effects explained above under Development. The ‘‘status quo’’ scenario also assumes that current conservation efforts would remain in place but that no new conservation actions would be taken. In this scenario, a substantial loss of resiliency, representation, and redundancy is expected. Under this scenario, we predict the condition of MUs as: Zero in high condition, two in moderate condition, and six in low condition, with the remaining six likely to be extirpated. With the likely extirpation of 6 out of 14 currently extant MUs, and only the Tar population retaining more than one moderately resilient MU, redundancy would be reduced. Representation would be reduced, with only five (42 percent) of the former river basins occupied, and with extremely limited variability in the Mountains and Coastal Plain, and reduced variability in the Piedmont. In the SSA Report we describe results for three more scenarios that represent the full likely range of plausible future outcomes for development, possible climate changes, and the species’ expected response to threats. Results for our full resiliency analysis for the future projections is summarized in Table 1 below. TABLE 1—FUTURE SCENARIOS OF POPULATION CONDITIONS Populations: management units Current Status Quo Pessimistic Optimistic James: Craig Creek Subbasin .............................. James: Middle James ........................................... Chowan: Nottoway ................................................ Moderate .......... Very Low .......... Moderate .......... Low ................... x ........................ x ........................ x * ...................... x ........................ x ........................ Moderate .......... x ........................ Low ................... VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 Opportunistic Moderate. x. Low. Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51577 TABLE 1—FUTURE SCENARIOS OF POPULATION CONDITIONS—Continued Populations: management units Current Status Quo Pessimistic Optimistic Chowan: Meherrin ................................................. Roanoke: Dan River Subbasin ............................. Tar: Upper/Middle Tar ........................................... Tar: Lower Tar ...................................................... Tar: Fishing Creek ................................................ Tar: Sandy-Swift ................................................... Neuse: Upper Neuse ............................................ Neuse: Middle Neuse ........................................... Cape Fear: New Hope .......................................... Cape Fear: Deep River Subbasin ........................ Pee Dee: Uwharrie/Little ....................................... Low ................... Low ................... High .................. Low ................... High .................. High .................. Moderate .......... Moderate .......... Moderate .......... Low ................... Low ................... x ........................ x ........................ Low ................... Low ................... Moderate .......... Moderate .......... Low ................... x ........................ Low ................... x ........................ Low ................... x ........................ x ........................ Low ................... x ........................ Low ................... Low ................... x ........................ x ........................ x ........................ x ........................ Low ................... x ........................ Moderate .......... Moderate .......... Low ................... High .................. High .................. Moderate .......... Low ................... Low ................... Moderate .......... Low ................... Opportunistic x. x. Low. x. Moderate. Moderate. Low. x. x. Low. Low. khammond on DSK30JT082PROD with PROPOSAL10 * x= likely extirpated. Determination Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Atlantic pigtoe. 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 throughout all or a significant portion of its range within the foreseeable future.’’ We considered whether the Atlantic pigtoe is presently in danger of extinction and determined that proposing endangered status is not appropriate. The historical range of the Atlantic pigtoe included streams and rivers in 12 Atlantic Slope drainages from the James River Basin to the Altamaha River Basin, with the documented historical distribution in 28 MUs within those basins. Currently, the Atlantic pigtoe is presumed extirpated from 50 percent (14) of the historically occupied MUs and 5 of the drainages. Of the remaining 14 occupied MUs, 3 (21 percent) are estimated to be highly resilient and 5 (36 percent) moderately resilient, with 6 (43 percent) having low resiliency. Eight moderate to high resiliency MUs provide the ability for the species to withstand stochastic disturbance events. Scaling up from the VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 MU to the population level, 1 of 12 former populations (the Tar population) was estimated to have high resiliency, 1 population (the Neuse population) was estimated to have moderate resiliency, 5 populations (the James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations) had low estimated resiliency, and 5 of the former 12 populations are presumed extirpated; this means that 42 percent of the species’ historic range has been eliminated. Seventy-one percent of streams that remain part of the current species’ range are estimated to be in low condition as defined in the SSA report. The species continues to maintain physiographic representation in all 3 regions it historically occupied, although occupancy has decreased in each region by between 48 and 76 percent. However, while threats are currently acting on the species and many of those threats are expected to continue into the future (see below), we did not find that the species is currently in danger of extinction throughout all of its range. With eight moderately or highly resilient MUs in three physiographic regions, the current condition of the species still provides for enough resiliency, redundancy, and representation such that it is not at risk of extinction now. However, estimates of future resiliency, redundancy, and representation for the Atlantic pigtoe are also low. The Atlantic pigtoe faces a variety of threats from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats (Factor A). These threats, which are expected to be exacerbated by continued urbanization (Factor A) and the effects of climate change (Factor E), were central to our assessment of the future viability of the Atlantic pigtoe. Given current and future decreases in resiliency, populations will become more vulnerable to extirpation from PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 stochastic events, in turn, resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios of these Atlantic pigtoe habitat conditions and population factors suggest possible extirpation in as many as five of seven currently extant populations. Even the most optimistic model predicted that only two MUs will be in high condition in 50 years and the remaining populations are expected to be characterized by low occupancy and abundance. Under most modeled scenarios, the species is likely to lose enough resiliency, redundancy, and representation such that it is at risk of not being viable. All four scenarios presented as representative of plausible future scenarios create conditions where the Atlantic pigtoe would not have enough resiliency, redundancy, or representation to sustain populations over time. While determining the probability of each scenario was not possible with the available data, the entire risk profile that was provided by looking across the range of the four plausible scenarios showed the species is continuing to lose resiliency, redundancy, and representation throughout the range in all likely scenarios. In short, our analysis of the species’ current and future conditions, as well as the conservation efforts discussed above, show that the population and habitat factors used to determine the resiliency, representation, and redundancy for the species will continue to decline over the next 50 years so that the species is likely to become in danger of extinction throughout its range within the foreseeable future. Fifty years was considered ‘‘foreseeable’’ in this case because it included projections from both available models while taking into consideration that Atlantic pigtoes are slow-growing and long-lived species, and, therefore, respond more slowly on a population or species level to negative impacts on the ecosystem. We can E:\FR\FM\11OCP2.SGM 11OCP2 51578 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 reasonably rely on the future of 50 years as presented in the models of predicted urbanization and climate change, and predict how those threats will affect the status of the species. Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Atlantic pigtoe is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species’ degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a ‘‘significant portion of its range’’ analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the ‘‘all’’ language. We note that the court in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Atlantic pigtoe as threatened in accordance with sections 3(20) and 4(a)(1) of the Act. 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 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 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, selfsustaining, 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 reclassification (such as ‘‘downlisting’’ from endangered to threatened) or removal from the Federal Lists of Endangered and Threatened Wildlife and Plants (‘‘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 Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 on private, State, and Tribal lands. If we list the Atlantic pigtoe, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Virginia and North Carolina would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Atlantic pigtoe. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/grants. Although the Atlantic pigtoe is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). II. Proposed Critical Habitat Designation Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). 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 E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 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 nonFederal 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 and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features 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, VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. 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 Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 51579 may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) 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. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: E:\FR\FM\11OCP2.SGM 11OCP2 51580 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or whether any areas meet the definition of ‘‘critical habitat.’’ There is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we next determine whether such designation of critical habitat would not be beneficial to the species. In the information provided above on threats to the species, we determined that there are habitat-based threats to the Atlantic pigtoe, so the designation of critical habitat would be beneficial to the species through the application of section 7 of the Act to actions that affect habitat as well as those that affect the species. Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the Atlantic pigtoe. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Atlantic pigtoe is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. We find that this information is sufficient for us to conduct both the biological and economic analyses required for the critical habitat determination. Therefore, we conclude that the designation of critical habitat is determinable for the Atlantic pigtoe. 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 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. These include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. 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. We derive the specific physical or biological features essential for Atlantic pigtoe from studies of this species’ habitat, ecology, and life history. The primary habitat elements that influence resiliency of the Atlantic pigtoe include water quality, water quantity, substrate, and habitat connectivity. A full description of the needs of individuals, populations, and the species is available from the SSA report; the individuals’ needs are summarized below in Table 2. TABLE 2—LIFE HISTORY AND RESOURCE NEEDS OF THE ATLANTIC PIGTOE Fertilized Eggs—early spring .................... Glochidia—late spring to early summer .... khammond on DSK30JT082PROD with PROPOSAL10 Juveniles—excystment from host fish to ∼20mm shell length. Adult—>20 mm shell length ...................... VerDate Sep<11>2014 21:21 Oct 10, 2018 Resource function (BFSD *) Resources and/or circumstances needed for individuals to complete each life stage Life stage Jkt 247001 • • • • • • • • • • • • • • • • Clear, flowing water ................................................................................................. Sexually mature males upstream from sexually mature females. Appropriate spawning temperatures. Presence of gravid females. Clear, flowing water ................................................................................................. Just enough flow to attract drift feeding minnows. Presence of host fish for attachment. Clear, flowing water ................................................................................................. Host fish dispersal. Appropriate interstitial chemistry. —Low salinity (∼0.9 ppt). —Low ammonia (∼0.7 mg/L). —Low levels of copper and other contaminants. —Dissolved oxygen >1.3 mg/L. Appropriate substrate for settlement. Adequate food availability. Clear, flowing water ................................................................................................. Appropriate substrate (silt-free gravel and stable, coarse sand). Adequate food availability (phytoplankton and detritus). High dissolved oxygen (>3mg/L). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 B B, D F, S F, S 51581 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules TABLE 2—LIFE HISTORY AND RESOURCE NEEDS OF THE ATLANTIC PIGTOE—Continued Resources and/or circumstances needed for individuals to complete each life stage Life stage Resource function (BFSD *) • Water temperature <35 °C. khammond on DSK30JT082PROD with PROPOSAL10 * B=breeding; F=feeding; S=sheltering; D=dispersal Summary of Essential Physical or Biological Features In summary, we derive the specific physical or biological features essential to the conservation of Atlantic pigtoe from studies of this species’ habitat, ecology, and life history as described above. Additional information can be found in the SSA Report (Service 2017) available on https://www.regulations.gov under Docket No. FWS–R4–ES–2018– 0046. We have determined that the following physical or biological features are essential to the conservation of Atlantic pigtoe: (1) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (i.e., channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of silt-free gravel and coarse sand substrates). (2) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the mussel’s and fish host’s habitat, food availability, spawning habitat for native fishes, and the ability for newly transformed juveniles to settle and become established in their habitats. (3) Water and sediment quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages. (4) The presence and abundance of fish hosts necessary for recruitment of the Atlantic pigtoe. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 the geographical area occupied by the species at the time of listing contain features which 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 Atlantic pigtoe may require special management considerations or protections to reduce the following threats: (1) Urbanization of the landscape, including (but not limited to) land conversion for urban and commercial use, infrastructure (roads, bridges, utilities), and urban water uses (water supply reservoirs, wastewater treatment, etc.); (2) nutrient pollution from agricultural activities that impact water quantity and quality; (3) significant alteration of water quality; (4) improper forest management or silviculture activities that remove large areas of forested wetlands and riparian systems; (5) culvert and pipe installation that creates barriers to movement; (6) impacts from invasive species; (7) changes and shifts in seasonal precipitation patterns as a result of climate change; and (8) 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 best management practices (BMPs) designed to reduce sedimentation, erosion, and bank side destruction; protection of riparian corridors and leaving sufficient canopy cover 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; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the occupied areas we are proposing to designate as critical habitat contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 eliminate, or to reduce to negligible levels, the threats affecting the physical and biological features of each unit. 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. The current distribution of the Atlantic pigtoe is much reduced from its historical distribution. We anticipate that recovery will require continued protection of existing populations and habitat, as well as ensure there are adequate numbers of mussels in stable populations and that these populations occur over a wide geographic area. This strategy will help to ensure that catastrophic events, such as the effects of hurricanes (e.g., flooding that causes excessive sedimentation, nutrients, and debris to disrupt stream ecology), cannot simultaneously affect all known populations. Rangewide recovery considerations, such as maintaining existing genetic diversity and striving for representation of all major portions of the species’ current range, were considered in formulating this proposed critical habitat. Sources of data for this proposed critical habitat include multiple databases maintained by universities and State agencies for Virginia and North Carolina, and numerous survey reports on streams throughout the species’ range (see SSA report). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include studies conducted at occupied sites and published in peer-reviewed articles, agency reports, and data collected during monitoring efforts (Service 2017). E:\FR\FM\11OCP2.SGM 11OCP2 51582 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules Areas Occupied at the Time of Listing We identified stream channels that currently support populations of the Atlantic pigtoe. We defined ‘‘current’’ as stream channels with observations of the species from 2005 to the present. Due to the breadth and intensity of survey effort done for freshwater mussels throughout the known range of the species, it is reasonable to assume that streams with no positive surveys since 2005 should not be considered occupied for the purpose of our analysis. However, since each particular area is not surveyed every year, and these cryptic mussels have a 0.42 detection probability, only one negative survey would not be sufficient to determine that the species is not present. Therefore, it is reasonable to assume that if the species had been seen within the past ten years that it could be considered currently occupied. Specific habitat areas were delineated based on Natural Heritage Element Occurrences (EOs) following NatureServe’s occurrence delineation protocol for freshwater mussels (NatureServe 2018). These EOs provide habitat for Atlantic pigtoe subpopulations and are large enough to be self-sustaining over time, despite fluctuations in local conditions. The EOs contain stream reaches with interconnected waters so that host fish containing Atlantic pigtoe glochidia can move between areas, at least during certain flows or seasons. We consider the following streams to be occupied by the species at the time of proposed listing: Craig Creek, Mill Creek, Middle James River, Nottoway River Subbasin, Meherrin River, Dan River, Aarons Creek, Upper/Middle Tar River, Sandy/Swift Creek, Fishing Creek Subbasin, Lower Tar River, Upper Neuse River Subbasin, Middle Neuse River Subbasin, New Hope Creek, Deep River Subbasin, and Little River Subbasin (see Unit Descriptions, below). The proposed critical habitat designation does not include all streams known to have been occupied by the species historically; instead, it includes only the occupied streams within the historical range that have also retained the physical or biological features that will allow for the maintenance and expansion of existing populations. Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the proposed critical habitat designation in the discussion of individual units below. 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 under Docket No. FWS–R4–ES–2018–0046, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above). Areas Outside the Geographic Area Occupied at the Time of Listing We are not proposing to designate any areas outside the geographical area currently occupied by the species because we did not find any unoccupied areas that were essential for the conservation of the species. The protection of eight moderately or highly resilient management units across the physiographic representation of the range would sufficiently reduce the risk of extinction. Improving the resiliency of populations in the currently occupied streams will increase viability to the point that the protections of the Act are no longer necessary. Proposed Critical Habitat Designation General Information on the Maps of the Proposed Critical Habitat Designation When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for Atlantic pigtoe. 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 proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a We are proposing to designate approximately 542 river mi (872 river km) in 16 units as critical habitat for the Atlantic pigtoe. All of the units are currently occupied by the species and contain all of the physical and biological features essential to the conservation of the species. These proposed critical habitat areas, described below, constitute our current best assessment of areas that meet the definition of critical habitat for the Atlantic pigtoe. Table 3 shows the name, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated units for the Atlantic pigtoe. Because all streambeds are navigable waters, the actual critical habitat units are all owned by the State in which they are located. khammond on DSK30JT082PROD with PROPOSAL10 TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR THE ATLANTIC PIGTOE Critical habitat unit Riparian ownership 1. JR1—Craig Creek ................................................................... 2. JR2—Mill Creek ...................................................................... 3. JR3—Middle James River ...................................................... 4. CR1—Nottoway River Subbasin ............................................ 5. CR2—Meherrin River ............................................................. 6. RR1—Dan River ..................................................................... 7. RR2—Aarons Creek ............................................................... 8. TR1—Upper/Middle Tar River ................................................ 9. TR2—Sandy/Swift Creek ........................................................ 10. TR3—Fishing Creek Subbasin ............................................. 11. TR4—Lower Tar River .......................................................... 12. NR1—Upper Neuse River Subbasin .................................... 13. NR2—Middle Neuse River ................................................... 14. CF1—New Hope Creek ........................................................ 15. CF2—Deep River ................................................................. Federal ....................................................................................... Federal ....................................................................................... Private ........................................................................................ Private; Federal .......................................................................... Private ........................................................................................ Private ........................................................................................ Private ........................................................................................ Private; Easements .................................................................... Private; State; Easements ......................................................... Private; State; Easements ......................................................... Private; State; Easements ......................................................... Private; State; Easements ......................................................... Private; State; County; Easements ............................................ Private; Easements .................................................................... Private ........................................................................................ VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 River miles (kilometers) 29 (46.7) 1 (1.6) 3 (4.8) 50 (80.5) 5 (8) 7 (11.3) 12 (19.3) 85 (136.8) 58 (93.3) 85 (136.8) 30 (48.3) 60 (95) 61 (98.2) 6 (9.7) 10 (16.1) Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51583 TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR THE ATLANTIC PIGTOE—Continued River miles (kilometers) Critical habitat unit Riparian ownership 16. YR1—Little River .................................................................. Private; Easements .................................................................... 40 (64.4) Total ..................................................................................... .................................................................................................... 542 (872) Note: Area sizes may not sum due to rounding. We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for Atlantic pigtoe, below. James River Population khammond on DSK30JT082PROD with PROPOSAL10 Unit 1: JR1—Craig Creek Unit 1 consists of 29 river mi (46.7 river km) of Craig Creek in Craig and Botecourt Counties, Virginia. The land adjacent to Craig Creek is primarily private, although some land along the river is federally owned by George Washington and Jefferson National Forest (GWJ NF). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required to address excess nutrients, sediment, and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are wastewater, agricultural runoff, and urban stormwater runoff. Five stream reaches, totaling approximately 21 miles, are impaired for aquatic life in the lower Craig Creek watershed. Impairment is indicated by low benthicmacroinvertebrate bioassessments, pH issues, high temperature, and fecal coliform. The GWJ NF surrounds the Craig Creek Subbasin; protections and management of the National Forest will likely enable habitat conditions (water quality, water quantity/flow, instream substrate, and connectivity) to remain high into the future. Targeted species restoration in conjunction with current associated-species restoration efforts in Johns, Dicks, and Little Oregon Creeks within the Craig Creek Subbasin will likely improve the Atlantic pigtoe’s resiliency in these areas. Maintenance of forested buffer conditions is essential to retaining high-quality instream habitat in this unit. Unit 2: JR2—Mill Creek Unit 2 consists of a 1-mile (1.6-km) segment of Mill Creek at the VA39 (Mountain Valley Road) crossing in Bath County, Virginia. The land surrounding the creek is privately owned. The unit VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within Unit 2 to address excess nutrients, sediment, and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins. Sources of these types of pollution are wastewater, agricultural runoff, and urban stormwater runoff. The GWJ NF surrounds most of the Mill Creek watershed; protections and management of the National Forest will likely enable habitat conditions to remain high into the future. Targeted species restoration in conjunction with current associated-species restoration efforts in the Cowpasture River Basin will likely improve the Atlantic pigtoe’s resiliency in these areas. Maintenance of forested buffer conditions is essential to retaining high-quality instream habitat in this unit. Unit 3: JR3—Middle James River Unit 3 consists of a 3-mile (4.8-km) segment of the Middle James River downstream of its confluence with the Slate River, under the crossing of VA Hwy 15 (James Madison Highway) along the boundary of Fluvanna and Buckingham Counties, Virginia. The riparian areas on either side of the river are privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within Unit 3 to address excess nutrients, sediment, and pollutants that enter the river and serve as indicators of other forms of pollution such as bacteria and toxins. Sources of these types of pollution are wastewater, agricultural runoff, and urban stormwater runoff. Chowan River Population Unit 4: CR1—Nottoway River Subbasin Unit 4 consists of 50 river miles (80.5 river km) of the Nottoway River in Nottoway, Lunenburg, Brunswick, Dinwiddie, and Greenville Counties, Virginia. The proposed designation begins downstream of the Nottoway River’s confluence with Dickerson Creek and ends at its confluence with Buckskin Creek. Land bordering the PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 river is primarily privately owned, although some of the land along the river is part of the Fort Pickett National Guard Installation (see Exemptions, below). The unit currently supports all breeding, feeding, and sheltering needs of the species. Special management considerations or protection may be required within this unit to address a variety of threats. In the past decade, the Nottoway River suffered from several seasonal drought events, which not only caused very low dissolved oxygen conditions but also decreased food delivery because of minimal flows. In addition, these conditions led to increased predation rates on potential host fishes that were concentrated into low-flow refugia (e.g., pools). Urban stormwater and nonpoint source pollution have been identified as contributing to water quality issues in this unit; therefore, special management considerations for riparian buffer restoration, reduced surface and groundwater withdrawals, and stormwater retrofits will benefit the habitat in this unit. Additional threats to this system include oil and gas pipeline projects that propose to cross streams at locations where the species occurs. Additional special management considerations or protection may be required within this unit to address low water levels as a result of water withdrawals and drought, as well as recommendation of alternate routes for oil and gas pipelines, or directional bore for those projects. Unit 5: CR2—Meherrin River Unit 5 consists of 5 miles (8 km) of the Meherrin River in Brunswick County, Virginia, from approximately 1.5 river miles below the confluence with Saddletree Creek under VA Hwy 46 (Christana Highway) to VA715 (Iron Bridge Road). The land on either side of the proposed critical habitat unit is privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Like the Nottoway River, the Meherrin River has been affected by seasonal droughts, resulting in low flow E:\FR\FM\11OCP2.SGM 11OCP2 51584 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules conditions and low dissolved oxygen conditions. The rural nature of the unit will benefit from following agricultural and silvicultural BMPs. Additional special management considerations or protection may be required within this unit to address low water levels as a result of water withdrawals and drought. Roanoke River Population khammond on DSK30JT082PROD with PROPOSAL10 Unit 6: RR1—Dan River Unit 6 consists of 7 miles (11.3 km) of the Dan River along the border of Virginia and North Carolina from the Stateline Bridge Road in Pittsylvania County, Virginia, downstream to the confluence with Williamson Creek in Rockingham County, North Carolina. The land on either side of the proposed critical habitat unit is privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address threats. For example, a Duke Energy Coal Ash spill occurred upstream of this unit in February 2014; subsequent actions related to mitigating the effects of the spill will ultimately benefit the habitat in this unit, potentially allowing species restoration efforts. Unit 7: RR2—Aarons Creek Unit 7 consists of 12 miles (19.3 km) of Aarons Creek, from NC96 in Granville County, North Carolina, downstream across the North Carolina-Virginia border to VA602 (White House Road) along the Mecklenburg County-Halifax County line in Virginia. Land on either side of the proposed critical habitat unit is privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. There are two impaired stream reaches totaling approximately 12 miles (19.3 km) in the Aarons Creek watershed. An ‘‘impairment’’ designation by the State here is a result of low dissolved oxygen and low benthic-macroinvertebrate assessment scores. Special management focused on maintaining riparian buffers and following BMPs will be important for the habitat in this unit. Tar River Population Unit 8: TR1—Upper/Middle Tar River This unit consists of 85 miles (136.8 km) of the mainstem of the upper and middle Tar River as well as several tributaries (Bear Swamp Creek, Crooked Creek, Cub Creek, and Shelton Creek), VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 all in North Carolina. Land bordering the river and creeks is mostly privately owned (74 mi (119 km)), with some areas in public ownership or easements (11 mi (17 km)). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Excessive amounts of nitrogen and phosphorus run off the land or are discharged into the waters, causing too much growth of microscopic or macroscopic vegetation and leading to extremely low levels of dissolved oxygen. As a result, there are six ‘‘impaired’’ stream reaches (as defined on the State’s 303d list) totaling approximately 32 miles in the unit. Expansion or addition of new wastewater discharges are also a threat to habitat in this unit. Special management focused on agricultural BMPs, implementing highest levels of treatment of wastewater practicable, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit. Unit 9: TR2—Sandy/Swift Creek This unit consists of a 58-mile (93.3km) segment of Sandy/Swift Creek in Granville, Vance, Franklin, and Nash Counties, North Carolina. Land bordering the river and creeks is mostly privately owned (50 mi (80 km)) with some areas covered by protective easements (8 mi (13km)). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Excessive amounts of nitrogen and phosphorus run off the land or are discharged into the waters, causing excessive growth of microscopic or macroscopic vegetation and leading to extremely low levels of dissolved oxygen; there is one ‘‘impaired’’ stream reach totaling approximately 5 miles (8 km) in this unit. Special management focused on agricultural BMPs, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit. Unit 10: TR3—Fishing Creek Subbasin This unit consists of 85 miles (136.8 km) in Fishing Creek, Little Fishing Creek, Shocco Creek, and Maple Branch located in Warren, Halifax, Franklin, and Nash Counties, North Carolina. The land bordering the creeks includes private parcels (56 miles (90 km)), protective easements (14 miles (23 km)), PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 and State game lands (15 miles (24 km)). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Excessive amounts of nitrogen and phosphorus run off the land or are discharged into the waters, causing excessive growth of microscopic or macroscopic vegetation and leading to extremely low levels of dissolved oxygen. Special management focused on agricultural BMPs, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit. Unit 11: TR4—Lower Tar River This unit consists of 30 miles (48.3 km) of the Lower Tar River and Fishing Creek in Edgecombe County, North Carolina, from NC97 near Leggett, North Carolina, to the Edgecombe-Pitt County line near NC33. Land along the river is divided between private parcels, protective easements, State game lands, and State park land. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Excessive amounts of nitrogen and phosphorus run off the land or are discharged into the waters, causing excessive growth of microscopic or macroscopic vegetation and leading to extremely low levels of dissolved oxygen. Special management focused on agricultural BMPs, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit. Neuse River Population Unit 12: NR1—Upper Neuse River Subbasin This unit consists of 60 river miles (95 river km) in four subunits including Flat River, Little River, Eno River, and the Upper Eno River. The unit currently supports all breeding, feeding, and sheltering needs for the species. The Flat River subunit consists of 19 river miles (30.6 river km) in the Flat River Subbasin in Person and Durham Counties, North Carolina, including the South Flat River downstream of Dick Coleman Road, the North Flat River near Parsonage Road, and Deep Creek near Helena-Moriah Road downstream where each river converges into the Flat River downstream of State Forest Road. Land along the Flat River subunit includes private parcels, easements, and State forest land. E:\FR\FM\11OCP2.SGM 11OCP2 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 The Little River subunit includes 18 river miles (29 river km) of the North Fork and South Fork Little Rivers in Orange and Durham Counties, North Carolina, bordered by both private land and easements. The Upper Eno River subunit consists of 4 river miles (6.4 river km) in Orange County, North Carolina, including the West Fork Eno River upstream of Cedar Grove Road to the confluence with McGowan Creek. This subunit is bordered by 3 miles (4.8 km) of private land and 1 mile (1.6 km) of conservation parcels. The Eno River subunit consists of 18 river miles (29 river km) in Orange and Durham Counties, North Carolina, from below Eno Mountain Road to NC15– 501. Land bordering the river contains private land, State park land, and conservation parcels. Special management considerations or protection may be required within this unit to address a variety of threats. Large quantities of nutrients (especially nitrogen) contributed by fertilizers and animal waste washed from lawns, urban developed areas, farm fields, and animal operations are impacting aquatic ecosystems in this unit. More than 300 permitted point-source sites discharge wastewater into streams and rivers in the basin. Development is also impacting areas along the Upper Neuse River. Special management considerations in this unit include using the highest available wastewater treatment technologies, retrofitting stormwater systems, eliminating direct stormwater discharges, increasing open space, maintaining connected riparian corridors, and treating invasive species (like hydrilla). Unit 13: NR2—Middle Neuse River This unit consists of 61 river miles (98.2 river km) in five subunits including Swift Creek, Middle Creek, Upper Little River, Middle Little River, and Contentnea Creek, all in North Carolina. The unit currently supports all breeding, feeding, and sheltering needs for the species. The Middle Creek subunit is 19 river miles (30.6 river km), and the Swift Creek subunit is 25 river miles (40.2 river km), both in Wake and Johnston Counties. They are primarily bordered by private land with some easement parcels. The Upper Little River subunit includes 4 miles (6.4 km) of the Upper Little River from the confluence with Perry Creek to Fowler Road in Wake County, North Carolina. The land along this subunit is primarily county-owned with some private parcels. VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 The Middle Little River subunit includes 11 river miles (17.7 river km) in Johnston County, North Carolina. This area is bordered predominantly by private land and some conservation parcels. The Contentnea Creek subunit consists of 2 river miles (3.2 river km) near NC581 in Wilson County, North Carolina, bordered entirely by private land. Special management considerations or protection may be required within this unit to address a variety of threats. Large quantities of nutrients (especially nitrogen) contributed by fertilizers and animal waste washed from lawns, urban developed areas, farm fields, and animal operations are impacting aquatic ecosystems in this unit. More than 300 permitted point-source sites discharge wastewater into streams and rivers in the basin. Development is also impacting areas along the Middle Neuse River. There are 49 State-defined ‘‘impaired’’ stream reaches totaling approximately 447 miles (719.4 km) in this unit. There are many factors that cause an impairment label to be given by the State, including low benthicmacroinvertebrate assessment scores, low pH, poor fish community scores, low dissolved oxygen, polychlorinated biphenyls (PCBs), copper, and zinc. There are 349 non-major and 6 major (Apex Water Reclamation Facility, Central Johnston County Waste Water Treatment Plant, Cary Waste Water Treatment Plant, City of Raleigh Wastewater Treatment Plant, Dempsey Benton Water Treatment Plant, and Terrible Creek Waste Water Treatment Plant) permitted discharges in this MU. Special management related to developed areas, including using the best available wastewater treatment technologies, retrofitting stormwater systems, eliminating direct stormwater discharges, increasing open space in the watershed, and maintaining connected riparian corridors, will be important to maintain habitat in this unit. Cape Fear Population Unit 14: CF1—New Hope Creek This unit consists of 6 mi (9.7 km) of habitat in the New Hope Creek in Orange County, North Carolina. The land bordering the creek includes private parcels and some easements. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Large quantities of nutrients (especially PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 51585 nitrogen) contributed by fertilizers and animal waste washed from lawns, urban developed areas, farm fields, and animal operations are impacting aquatic ecosystems in this unit. More than 200 permitted point-source sites discharge wastewater into streams and rivers in the basin. Development is also impacting areas along New Hope Creek. Special management, including using the best available wastewater treatment technologies, retrofitting stormwater systems, eliminating direct stormwater discharges, increasing open space in the watershed, and maintaining connected riparian corridors, may be required to maintain habitat in this unit. Unit 15: CF2—Deep River The Deep River Subbasin unit consists of 10 river miles (16.1 river km) in Randolph County, North Carolina, including the mainstem as well as Richland Creek and Brush Creek. Land bordering the area is privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. The Deep River Subbasin is situated in a mostly rural part of the Cape Fear River Basin, and large-scale agriculture and livestock operations are present. Special management considerations or protection may be required within this unit to insure the use of agriculture BMPs, especially preventing cattle access to streams, as well as protecting forested riparian buffers to benefit habitat in this unit. Yadkin-Pee Dee River Population Unit 16: YR1—Little River This unit consists of 40 miles (64.4 km) of Little River in Randolph and Montgomery Counties, North Carolina. Land along the river is predominantly privately owned with some parcels in conservation easements. The unit currently supports all breeding, feeding, and sheltering needs for the species. Habitat fragmentation from dams and reservoirs is impacting the aquatic ecosystems in this unit. Sedimentation from intensive agriculture is the top pollution problem in the basin. Special management considerations or protection may include the use of agricultural BMPs, especially preventing cattle access to streams, as well as protecting forested riparian buffers to benefit habitat in this unit. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 51586 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: (1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; (2) A statement of goals and priorities; (3) A detailed description of management actions to be implemented to provide for these ecological needs; and (4) A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108– 136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 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 prepared under section 670a of this title [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.’’ We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyze INRMPs developed by military installations located within the range of proposed critical habitat designations to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. We have identified one area within the proposed critical habitat designation that consists of Department of Defense lands with a completed, Serviceapproved INRMP. The Army National Guard—Maneuver Training Center Fort Pickett (Fort Pickett) is located in southeastern North Carolina on 41,000 acres in three counties: Nottoway, Brunswick, and Dinwiddie. Fort Pickett is federally owned land that is managed VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 by the Virginia Army National Guard and is subject to all federal laws and regulations. The Fort Pickett INRMP covers fiscal years 2017–2021, and serves as the principal management plan governing all natural resource activities on the installation. Among the goals and objectives listed in the INRMP is habitat management for rare, threatened, and endangered species, and the Atlantic pigtoe is included in this plan. Management actions that benefit the Atlantic pigtoe include maintenance and improvement of habitat, monitoring mussel populations, and improving water quality. Additional elements of the management actions included in the INRMP that will benefit Atlantic pigtoe and its habitat are forest management, stream and wetland protection zones, and public outreach and education. Fourteen miles (22.5 km) of Unit 4 (CR1—Nottoway River Subbasin) are located within the area covered by this INRMP. Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified streams are subject to the Fort Pickett National Guard Training Center INRMP and that conservation efforts identified in the INRMP will provide a benefit to the Atlantic pigtoe. Therefore, streams within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 14 river miles (22.5 river km) of habitat in this proposed critical habitat designation because of this exemption. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if 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. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. As discussed below, we are not proposing to exclude any areas from critical habitat. However, the final PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Consideration of Economic Impacts Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate whether a specific critical habitat designation may restrict or modify specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, which includes the existing regulatory and socioeconomic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis. For this proposed designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Atlantic pigtoe (IEc, 2018, entire). The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. This screening analysis, combined with the information contained in our IEM, constitutes our draft economic analysis (DEA) of the proposed critical habitat designation for the Atlantic pigtoe, and is summarized in the narrative below. Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the proposed critical habitat designation. In our March 19, 2018, IEM describing probable incremental economic impacts that may result from the proposed designation, we first identified probable incremental economic impacts associated with each of the following categories of activities: (1) Federal lands management (National Park Service, U.S. Forest Service, Department of Defense); (2) agriculture; (3) forest management/silviculture/ VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 timber; (4) development; (5) recreation; (6) restoration activities; and (7) transportation. Additionally, we considered whether the activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, as proposed in this document, in areas where the Atlantic pigtoe is present, under section 7 of the Act, Federal agencies would be required to consult with the Service on activities they fund, permit, or implement that may affect the species. In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the Atlantic pigtoe. Because the designation of critical habitat is being proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which would result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Atlantic pigtoe would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat. The proposed critical habitat designation for the Atlantic pigtoe totals approximately 542 river miles (872 river km), all of which are currently occupied by the species. In these areas, any actions that may affect the species or its habitat would likely also affect proposed critical habitat, and it is unlikely that any additional conservation efforts would be required to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 51587 the species. Therefore, the only additional costs that are expected in all of the proposed critical habitat designation are administrative costs, due to the fact that this additional analysis will require time and resources by both the Federal action agency and the Service. However, it is believed that, in most circumstances, these costs would not reach the threshold of ‘‘significant’’ under E.O. 12866. We anticipate a maximum of 109 section 7 consultations annually at a total incremental cost of less than $230,000 per year. As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our required determinations. See ADDRESSES, above, for information on where to send comments. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. Exclusions Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. As discussed above, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors. The Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on economic impacts. However, during the development of a final designation, we will consider any additional economic impact information we receive during the public comment period, which may result in areas being excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Exclusions Based on National Security Impacts or Homeland Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this proposal, we have determined that, other than the land exempted under section 4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP, the lands within the proposed E:\FR\FM\11OCP2.SGM 11OCP2 51588 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules designation of critical habitat for the Atlantic pigtoe are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether 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 proposal, we have determined that there are currently no HCPs or other management plans for the Atlantic pigtoe, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on other relevant impacts. Effects of Critical Habitat Designation khammond on DSK30JT082PROD with PROPOSAL10 Section 7 Consultation 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. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 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 or that involve some other Federal action. Federal agency actions within the species’ habitat that may require conference or consultation or both include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service, Army National Guard, U.S. Forest Service, and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Service Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 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 Atlantic pigtoe. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of the 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 E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 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 Atlantic pigtoe. These activities include, but are not limited to: (1) Actions that would alter the minimum flow or the existing flow regime. Such activities could include, but are not limited to, impoundment, channelization, water diversion, water withdrawal, and hydropower generation. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Atlantic pigtoe and its fish host by decreasing or altering flows to levels that would adversely affect their ability to complete their life cycles. (2) Actions that would significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals (including pharmaceuticals, metals, and salts), biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (nonpoint source). These activities could alter water conditions to levels that are beyond the tolerances of the mussel or its host fish and result in direct or cumulative adverse effects to these individuals and their life cycles. (3) 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 mussel and its fish host by increasing the sediment deposition to levels that would adversely affect their ability to complete their life cycles. (4) Actions that would significantly increase the filamentous algal community within the stream channel. Such activities could include, but are not limited to, release of nutrients into the surface water or connected groundwater at a point source or by dispersed release (non-point source). VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 These activities can result in excessive filamentous algae filling streams and reducing habitat for the mussel and its fish hosts, degrading water quality during their decay, and decreasing oxygen levels at night from their respiration to levels below the tolerances of the mussel and/or its fish host. Algae can also directly compete with mussel offspring by covering the sediment that prevents the glochidia from settling into the sediment. (5) 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 mussel or its fish host and/or their habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the mussel or its fish host. (6) Actions that result in the introduction, spread, or augmentation of nonnative aquatic species in occupied stream segments, or in stream segments that are hydrologically connected to occupied stream segments, even if those segments are occasionally intermittent, or introduction of other species that compete with or prey on the Atlantic pigtoe. Possible actions could include, but are not limited to, stocking of nonnative fishes, stocking of sport fish, or other related actions. These activities can introduce parasites or disease for host fish, and can result in direct predation, or affect the growth, reproduction, and survival, of Atlantic pigtoes. III. Proposed Rule Issued Under Section 4(d) of the Act Background The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Secretary has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The same prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 51589 trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. To the extent the section 9(a)(1) prohibitions apply only to endangered species, this proposed rule would apply those same prohibitions to the Atlantic pigtoe with some exceptions. In accordance with section 4(d) of the Act, the regulations implementing the Act include a provision that generally applies to threatened wildlife the same prohibitions and exceptions that apply to endangered wildlife (50 CFR 17.31(a), 17.32). However, for any threatened species, the Service may instead develop a protective regulation that is specific to the conservation needs of that species. Such a regulation would contain all of the protections applicable to that species (50 CFR 17.31(c)); this may include some of the general prohibitions and exceptions under 50 CFR 17.31 and 17.32, but would also include species-specific protections that may be more or less restrictive than the general provisions at 50 CFR 17.31. Proposed 4(d) Rule for Atlantic Pigtoe Under this proposed 4(d) rule, except as noted below, all prohibitions and provisions of 50 CFR 17.31 and 17.32 would apply to the Atlantic pigtoe: (1) Species restoration efforts by State wildlife agencies, including collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species. (2) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools comprised of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and E:\FR\FM\11OCP2.SGM 11OCP2 51590 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 inclusion of riparian wetlands. Secondto third-order, headwater streams reconstructed in this way would offer suitable habitats for the Atlantic pigtoe and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species and its host fish for spawning, rearing, growth, feeding, migration, and other normal behaviors. (3) Bank stabilization projects that use bioengineering methods to replace preexisting, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these bioengineering methods, stream banks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. (4) Silviculture practices and forest management activities that: (a) Implement highest-standard best management practices, particularly for Streamside Management Zones, stream crossings, and forest roads; and (b) Comply with forest practice guidelines related to water quality standards, or comply with Sustainable Forestry Initiative/Forest Stewardship Council/American Tree Farm System certification standards for both forest management and responsible fiber sourcing. These BMPs are publicly available on websites for these organizations, and can currently be found below: https://www.ncasi.org/Downloads/ Download.ashx?id=10204 https://reports.oah.state.nc.us/ https://us.fsc.org/download.fsc-usforest-management-standard-v10.95.htm https://www.treefarmsystem.org/ certification-american-tree-farmstandards These actions and activities may have some minimal level of mortality, harm, or disturbance to the Atlantic pigtoe, but are not expected to adversely affect the species’ conservation and recovery efforts. In fact, we expect they would have a net beneficial effect on the species. Across the species’ range, instream habitats have been degraded physically by sedimentation and by VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 direct channel disturbance. The activities proposed in this rule will correct some of these problems, creating more favorable habitat conditions for the species. These provisions are necessary because, absent protections, the species is likely to become in danger of extinction in the foreseeable future. Additionally, these provisions are advisable because the species needs active conservation to improve the quality of its habitat. By exempting some of the general prohibitions of 50 CFR 17.31 and 17.32, these provisions can encourage cooperation by landowners and other affected parties in implementing conservation measures. This will allow for use of the land while at the same time ensuring the preservation of suitable habitat and minimizing impact on the species. We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. IV. Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 Executive Order 13771 This proposed rule is not an Executive Order (E.O.) 13771 (‘‘Reducing Regulation and Controlling Regulatory Costs’’) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs 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 E:\FR\FM\11OCP2.SGM 11OCP2 khammond on DSK30JT082PROD with PROPOSAL10 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. The Service’s current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are 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 would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities. VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat will 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 proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 51591 Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the lands being proposed for critical habitat designation are owned by the States of Virginia and North Carolina. These government entities do not fit the definition of ‘‘small governmental jurisdiction.’’ Therefore, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Atlantic pigtoe 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 E:\FR\FM\11OCP2.SGM 11OCP2 51592 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL10 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, if adopted, this designation of critical habitat for Atlantic pigtoe does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Virginia, North Carolina, South Carolina, and Georgia. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary 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, VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 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 requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). 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 NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 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. There are no tribal lands in the proposed critical habitat designation. Authors The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and Raleigh Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.11 paragraph (h) by adding an entry for ‘‘Pigtoe, Atlantic’’ to the ‘‘List of Endangered and Threatened Wildlife’’ in alphabetical order under CLAMS to read as set forth below: ■ E:\FR\FM\11OCP2.SGM 11OCP2 51593 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules § 17.11 Endangered and threatened wildlife. * * * * Common name * CLAMS * Scientific name * * Pigtoe, Atlantic ......... * (h) * * * * Fusconaia masoni ... khammond on DSK30JT082PROD with PROPOSAL10 Special rules—snails and clams. (a) Atlantic pigtoe (Fusconaia masoni). (1) Prohibitions. Except as noted in paragraph (a)(2) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 apply to the Atlantic pigtoe. (2) Exceptions from prohibitions. Incidental take of the Atlantic pigtoe will not be considered a violation of the Act if the take results from any of the following activities: (i) Species restoration efforts by State wildlife agencies, including collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species. (ii) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools comprised of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. Secondto third-order, headwater streams reconstructed in this way would offer suitable habitats for the Atlantic pigtoe and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species and its host fish for spawning, rearing, growth, feeding, migration, and other normal behaviors. (iii) Bank stabilization projects that use bioengineering methods to replace 21:21 Oct 10, 2018 * * Jkt 247001 Listing citations and applicable rules * * T * 3. Amend § 17.45 to read as set forth below: VerDate Sep<11>2014 Status * Wherever found ....... * ■ § 17.45 Where listed * pre-existing, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these bioengineering methods, stream banks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. (iv) Silviculture practices and forest management activities that: (A) Implement highest-standard best management practices, particularly for Streamside Management Zones, stream crossings, and forest roads; and (B) Comply with forest practice guidelines related to water quality standards, or comply with Sustainable Forestry Initiative/Forest Stewardship Council/American Tree Farm System certification standards for both forest management and responsible fiber sourcing. (b) [Reserved] ■ 4. Amend § 17.95 paragraph (f) by adding, immediately following the entry for ‘‘Rabbitsfoot (Quadrilla cylindrica cylindrica),’’ an entry for ‘‘Atlantic Pigtoe (Fusconaia masoni)’’ to read as set forth below: Critical habitat—fish and wildlife. * * * * * (f) Clams and Snails. * * * * * Atlantic Pigtoe (Fusconaia masoni) (1) Critical habitat units are depicted for Craig, Botecourt, Bath, Fluvanna, Buckingham, Nottoway, Lunenburg, Brunswick, Dinwiddie, Greensville, and Pittsylvania Counties, Virginia; and PO 00000 Frm 00025 Fmt 4701 * * * * [Federal Register citation when published as a final rule]; 50 CFR 17.45(a)4d; 50 CFR 17.95(f)CH. * § 17.95 * Sfmt 4702 * * Rockingham, Granville, Mecklenburg, Halifax, Vance, Franklin, Nash, Warren, Leggett, Edgecombe, Person, Durham, Wake, Johnston, Orange, Randolph, and Montgomery Counties, North Carolina, on the maps below. (2) Within these areas, the physical or biological features essential to the conservation of Atlantic pigtoe consist of the following components: (i) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (i.e., channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of silt-free gravel and coarse sand substrates). (ii) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the mussel’s and fish host’s habitat, food availability, spawning habitat for native fishes, and the ability for newly transformed juveniles to settle and become established in their habitats. (iii) Water and sediment quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages. (iv) The presence and abundance of fish hosts necessary for recruitment of the Atlantic pigtoe. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they E:\FR\FM\11OCP2.SGM 11OCP2 51594 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules are located existing within the legal boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created by overlaying Natural Heritage Element Occurrence data and U.S. Geological Survey (USGS) hydrologic data for stream reaches. The hydrologic data used in the critical habitat maps were extracted from the USGS 1:1M scale nationwide hydrologic layer (https:// nationalmap.gov/small_scale/mld/ 1nethyd.html) with a projection of EPSG:4269—NAD83 Geographic. The North Carolina and Virginia Natural Heritage program species presence data were used to select specific stream segments for inclusion in the critical habitat layer. 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 https:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0046 and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Note: Index map follows: BILLING CODE 4333–15–P VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.005</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (6) Map of Unit JR1—Craig Creek follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51595 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.006</GPH> EP11OC18.007</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (7) Map of Unit JR2—Mill Creek follows: 51596 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules (8) Map of Unit JR3—Middle James River follows: VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.008</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (9) Map of Unit CR1—Nottoway River Subbasin follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51597 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.009</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (10) Map of Unit CR2—Meherrin River follows: 51598 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.010</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (11) Map of Unit RR1—Dan River follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51599 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.011</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (12) Map of Unit RR2—Aarons Creek follows: 51600 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.012</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (13) Map of Unit TR1—Upper/Middle Tar River follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51601 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.013</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (14) Map of Unit TR2—Sandy/Swift Creek follows: 51602 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.014</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (15) Map of Unit TR3—Fishing Creek Subbasin follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51603 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.015</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (16) Map of Unit TR4—Lower Tar River follows: 51604 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.016</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (17) Map of Unit NR1—Upper Neuse River Subbasin follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51605 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.017</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (18) Map of Unit NR2—Middle Neuse River follows: 51606 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.018</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (19) Map of Unit CF1—New Hope Creek follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules 51607 VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.019</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (20) Map of Unit CF2—Deep River follows: 51608 Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.020</GPH> khammond on DSK30JT082PROD with PROPOSAL10 (21) Map of Unit YR1— Little River follows: Federal Register / Vol. 83, No. 197 / Thursday, October 11, 2018 / Proposed Rules * * * * 51609 Dated: September 20, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service. * [FR Doc. 2018–21798 Filed 10–10–18; 8:45 am] VerDate Sep<11>2014 21:21 Oct 10, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4701 Sfmt 9990 E:\FR\FM\11OCP2.SGM 11OCP2 EP11OC18.021</GPH> khammond on DSK30JT082PROD with PROPOSAL10 BILLING CODE 4333–15–C

Agencies

[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Proposed Rules]
[Pages 51570-51609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21798]

[[Page 51569]]

Vol. 83

Thursday,

No. 197

October 11, 2018

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule and Critical Habitat Designation for
Atlantic Pigtoe; Proposed Rule

Federal Register / Vol. 83 , No. 197 / Thursday, October 11, 2018 /
Proposed Rules

[[Page 51570]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0046; 4500030113]
RIN 1018-BD12

Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule and Critical Habitat Designation for
Atlantic Pigtoe

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and 12-month finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
12-month finding on a petition to list the Atlantic pigtoe (Fusconaia
masoni) as endangered or threatened under the Endangered Species Act of
1973, as amended (Act). The Atlantic pigtoe is a freshwater mussel
native to Virginia, North Carolina, South Carolina, and Georgia. After
review of the best available scientific and commercial information, we
find that listing the Atlantic pigtoe as a threatened species is
warranted. Accordingly, we propose to list it as a threatened species
with a rule issued under section 4(d) of the Act (``4(d) rule''). We
also propose to designate critical habitat under the Act. In total,
approximately 542 river miles (872 river kilometers) in Virginia and
North Carolina fall within the boundaries of the proposed critical
habitat designation. Finally, we announce the availability of a draft
economic analysis (DEA) of the proposed designation of critical
habitat.

DATES: We will accept comments received or postmarked on or before
December 10, 2018. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 26, 2018.

ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0046,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2018-0046, U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the administrative record and are
available at https://www.fws.gov/southeast/, at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0046, and at the
Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we may
develop for the critical habitat designation will also be available at
the Service website and Field Office set out above, and may also be
included in the preamble and/or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S.
Fish and Wildlife Service, Raleigh Ecological Services Field Office,
551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; or
facsimile 919-856-4556. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that
a species may be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
This rule proposes the listing of the Atlantic pigtoe (Fusconaia
masoni) as a threatened species with a 4(d) rule and proposes the
designation of critical habitat.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat degradation
(Factor A), resulting from the cumulative impacts of land use change
and associated watershed-level effects on water quality, water
quantity, habitat connectivity, and instream habitat suitability, poses
the largest risk to future viability of the Atlantic pigtoe. This
stressor is primarily related to habitat changes: The buildup of fine
sediments, the loss of flowing water, instream habitat fragmentation,
and impairment of water quality, and it is exacerbated by the effects
of climate change (Factor E).
Section 4(b)(2) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat. The Act defines
critical habitat as (i) the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed if
such areas are essential to the conservation of the species. In
accordance with section 4(b)(2) of the Act, we prepared an analysis of
the economic impacts of the proposed critical habitat designation.
Peer Review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270) and our
August 22, 2016, memorandum updating and clarifying the role of peer
review of listing actions under the Act, we sought the expert opinions
of six appropriate specialists regarding the species status assessment
report, which informed th this proposed rule. The purpose of peer
review is to ensure that the science behind our listing determination,
the critical habitat

[[Page 51571]]

determination, and 4(d) rule are based on scientifically sound data,
assumptions, and analyses. The peer reviewers have expertise in mussel
biology, habitat, and stressors to the species.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. Because we will
consider all comments and information we receive during the comment
period, our final determinations may differ from this proposal. We
particularly seek comments concerning:
(1) The Atlantic pigtoe's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on activities that are necessary and advisable for
the conservation of the Atlantic pigtoe to include in a 4(d) rule for
the species. The Service is proposing such measures that are necessary
and advisable for the conservation of the species, and will evaluate
ideas provided by the public in considering the prohibitions we should
include in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act including whether there
are threats to the species from human activity, the degree of which can
be expected to increase due to the designation, and whether that
increase in threat outweighs the benefit of designation such that the
designation of critical habitat may not be prudent.
(7) Specific information on:
(a) The amount and distribution of Atlantic pigtoe habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the benefits of including or excluding areas that may
be impacted.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and the description of the
environmental impacts in the draft environmental assessment is complete
and accurate.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include. All
comments submitted electronically via https://www.regulations.gov will
be presented on the website in their entirety as submitted. For
comments submitted via hard copy, we will post your entire comment--
including your personal identifying information--on https://www.regulations.gov. You may request at the top of your document that
we withhold personal information such as your street address, phone
number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Raleigh Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Please note that submissions merely stating support for or
opposition to the listing action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''

Public Hearing

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

Species Status Assessment

A species status assessment (SSA) team prepared an SSA report for
the Atlantic pigtoe. The SSA team was composed of Service biologists,
in consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species. The SSA report underwent independent peer review by
scientists with expertise in mussel

[[Page 51572]]

biology, habitat management, and stressors (factors negatively
affecting the species) to the species. The SSA report and other
materials relating to this proposal can be found on the Service's
Southeast Region website at https://www.fws.gov/southeast/ and at
https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0046. The
draft economic analysis is available at https://www.fws.gov/southeast/,
at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0046, and
at the Raleigh Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

We identified the Atlantic pigtoe as a Category 2 candidate species
in our November 21, 1991, Animal Candidate Review for Listing as
Endangered or Threatened Species (56 FR 58804). Category 2 candidates
were defined as taxa for which we had information that listing was
possibly appropriate, but conclusive data on biological vulnerability
and threats were not available to support a proposed rule. In the
February 28, 1996, CNOR (61 FR 7596), we discontinued the designation
of species as Category 2 candidates; therefore, the Atlantic pigtoe was
no longer a candidate species.
On April 20, 2010, we were petitioned to list 404 aquatic species
in the southeastern United States, including Atlantic pigtoe. In
response to the petition, we completed a partial 90-day finding on
September 27, 2011 (76 FR 59836), in which we announced our finding
that the petition contained substantial information that listing may be
warranted for numerous species, including the pigtoe. On June 17, 2014,
the Center for Biological Diversity (CBD) filed a complaint against the
Service for failure to complete a 12-month finding for the Atlantic
pigtoe in accordance with statutory deadlines. On September 22, 2014,
the Service and the CBD filed stipulated settlements in the District of
Columbia, agreeing that the Service would submit to the Federal
Register a 12-month finding for the Atlantic pigtoe no later than
September 30, 2018 (Center for Biological Diversity v. Jewell, case
1:14-CV-01021-EGS/JMF). This document constitutes our concurrent 12-
month warranted petition finding, proposed listing rule, and proposed
critical habitat rule.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
Atlantic pigtoe is presented in the SSA report (Service 2017; available
at https://www.fws.gov/southeast/).
The Atlantic pigtoe is a small freshwater mussel with a sub-
rhomboidal shaped shell. Although larger specimens exist, the Atlantic
pigtoe rarely exceeds 50 millimeters (mm) (2 inches (in)) in length.
The known historical range of the Atlantic pigtoe included 12
populations in Atlantic river basins from Virginia to Georgia. However,
surveys conducted from 2005 to 2015 indicate that the currently
occupied range of the Atlantic pigtoe consists of seven populations in
Virginia and North Carolina. The Atlantic pigtoe is dependent on clean,
moderate-flowing water with high dissolved oxygen content in creek and
riverine environments. Historically, the most abundant populations
existed in creeks and rivers with excellent water quality, and where
stream flows were sufficient to maintain clean, silt-free substrates.
It is associated with gravel and coarse sand substrates at the
downstream edge of riffles (shallow water with rapid currents running
over gravel or rocks), and less commonly occurs in cobble, silt, or
sand detritus mixtures. Because this species prefers more pristine
conditions, it typically occurs in headwaters of rural watersheds.
The Atlantic pigtoe is presumed to be an omnivore. Adults primarily
filter feed on a wide variety of microscopic particulate matter
suspended in the water column, including phytoplankton, zooplankton,
bacteria, detritus, and dissolved organic matter, although juveniles
tend to pedal feed in the sediment (Alderman and Alderman 2014, p. 9).
Like most freshwater mussels, the Atlantic pigtoe has a unique life
cycle that relies on fish hosts for successful reproduction. Following
release from the female mussel, sticky packets of floating glochidia
(larvae) attach to the gills and scales of host minnows. The larvae
stay attached to the host fish until they complete metamorphosis, when
they release from the fish and fall to the substrate.
The Atlantic pigtoe has been documented in all major river basins
in the Atlantic coastal drainages from the James River Basin in
Virginia south to the Altamaha River Basin in Georgia, and from the
foothills of the Appalachian Mountains to the Coastal Plain. However,
abundance and distribution of the species has declined, with the
species currently occupying approximately 40% of its historical range.
Most of the remaining populations are small and fragmented, only
occupying a fraction of reaches that were historically occupied.
Current surveys found Atlantic pigtoes remain in seven populations in
Virginia and North Carolina, however only three populations have
multiple documented occurrences within the past 10 years. This decrease
in abundance and distribution has resulted in largely isolated
contemporary populations. Evidence suggests that the range reduction of
the species corresponds to habitat degradation resulting from the
cumulative impacts of land use change and associated watershed-level
effects on water quality, water quantity, habitat connectivity, and
instream habitat suitability.

Summary of Biological Status and Threats

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or

[[Page 51573]]

required resources (stressors). The term ``threat'' may encompass--
either together or separately--the source of the action or condition or
the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species--such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
In our determination, we correlate the threats acting on the
species to the factors in section 4(a)(1) of the Act. We summarize the
status assessment for Atlantic pigtoe below.
The SSA report documents the results of our comprehensive
biological status review for the Atlantic pigtoe, including an
assessment of the potential stressors to the species. It does not
represent a decision by the Service on whether the species should be
proposed for listing as an endangered or threatened species under the
Act. It does, however, provide the scientific basis that informs our
regulatory decision, which involves the further application of
standards within the Act and its implementing regulations and policies.
The following is a summary of the key results and conclusions from the
SSA report.
To assess Atlantic pigtoe viability, we used the three conservation
biology principles of resiliency, representation, and redundancy
(together, ``the three Rs,'' (3Rs)) (Shaffer and Stein 2000, pp. 306-
310). Briefly, resiliency refers to the ability of a species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years); representation refers to the ability of
the species to adapt over time to long-term changes in the environment
(for example, climate changes); and redundancy refers to the ability of
the species to withstand catastrophic events (for example, droughts,
hurricanes). In general, the more redundant and resilient a species is
and the more representation it has, the more likely it is to sustain
populations over time, even under changing environmental conditions.
Using these principles, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the beneficial and risk
factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we used the 3Rs to evaluate individual mussel
life-history needs. During the next stage, we assessed the historical
and current condition of species' demographics and habitat
characteristics, including explaining how the species arrived at its
current condition. In the final stage of the SSA, we made predictions
about the species' responses to positive and negative environmental and
anthropogenic influences. This process used the best available
information to characterize viability as the ability of a species to
sustain populations in the wild over time. We used this information to
inform our regulatory decision in this finding.
To evaluate the current and future viability of the Atlantic
pigtoe, we assessed a range of conditions to allow us to consider the
species' resiliency, representation, and redundancy. Populations were
delineated using the 12 river basins that Atlantic pigtoe mussels
historically occupied: the James, Chowan, Roanoke, Tar, Neuse, Cape
Fear, Pee Dee, Catawba, Edisto, Savannah, Ogeechee, and Altamaha River
basins. Because the river basin level is at a very coarse scale,
populations were further delineated using management units (MUs). The
MUs were defined as one or more U.S. Geological Survey Hydrological
Unit Code (HUC) 10 watersheds that species experts identified as the
most appropriate unit for assessing population-level resiliency. To
provide context for the current condition of the species using the 3Rs,
we considered the historic range as context for the species'
resiliency, redundancy, and representation on the landscape in the
past. However, in addressing the current condition of the 3Rs, only
extant populations were analyzed.
To assess resiliency, we qualitatively analyzed data related to
three population factors (MU occupancy, recruitment, and abundance) and
four habitat elements (water quality/flow, water quantity, instream
substrate, and habitat connectivity). Overall population condition
rankings and habitat condition rankings were determined by combining
these factors and elements.
We described representation for the Atlantic pigtoe in terms of
river basin variability (known from 12 historical river basins,
currently extant in 7), physiographic variability (Mountains, Piedmont,
and Coastal Plain), and historic latitudinal variability (Virginia
south to Georgia). We assessed Atlantic pigtoe redundancy by first
evaluating occupancy within each of the hydrologic units (i.e., HUC10s)
that constitute MUs, and then evaluating occupancy at the MU, and
ultimately the population, level.
Current Condition of Atlantic Pigtoe
The historical range of the Atlantic pigtoe included 12 populations
in Atlantic river basins from Virginia to Georgia. The surveys
conducted from 2005 to 2015 indicate that the currently occupied range
of the Atlantic pigtoe consists of 14 MUs within 7 populations in
Virginia and North Carolina, in the Tar, Neuse, James, Chowan, Roanoke,
Cape Fear, and Yadkin-Pee Dee River basins. The species is presumed
extirpated from the southern portion of its range, including the
Catawba, Edisto, Savannah, Ogeechee, and Altamaha River basins. The
Atlantic pigtoe currently (defined as the observation of at least one
specimen from 2005 to 2015) occupies 14 of the 81 historically occupied
MUs. At the population level, the overall current condition (=
resiliency) of the extant populations was estimated to be high for the
Tar Population; moderate for the Neuse Population; and low for the
James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations.
The Atlantic pigtoe currently has reduced adaptive potential due to
limited representation (compared with historical representation) in
seven river basins and three physiographic regions. The species retains
58 percent of its known river basin variability, but as discussed above
distribution has been reduced in the James, Chowan, Roanoke, Cape Fear,
and Yadkin-Pee Dee populations. In addition, although the species
continues to maintain physiographic representation in all three regions
it historically occupied, occupancy has decreased in each region. A 67
percent estimated loss has occurred in the Mountain region's
watersheds, 48 percent loss in the Piedmont region's watersheds, and 76
percent loss in the Coastal Plain region's

[[Page 51574]]

watersheds. Latitudinal variability is also reduced and is largely
limited to the central portions of its historical range, primarily in
the Tar and Neuse basins.
Redundancy was estimated as the number of historically occupied MUs
that remain currently occupied. The species has limited redundancy
within the James, Chowan, Roanoke, and Cape Fear River populations, and
only two populations (Tar and Neuse) have multiple moderate or highly
resilient MUs. Overall, the species has decreased redundancy across its
range due to an estimated 60 percent reduction in occupancy compared to
historical levels.
Risk Factors for Atlantic Pigtoe
Aquatic systems face a multitude of natural and anthropogenic
factors that may impact the status of species within those systems
(Neves et al. 1997, p. 44). Generally, these factors can be categorized
as either environmental stressors (e.g., development, agriculture
practices, or forest management) or systematic changes (e.g., climate
change, invasive species, dams or other barriers). The largest threats
to the future viability of the Atlantic pigtoe consist of habitat
degradation (Factor A) from stressors influencing water quality, water
quantity, instream habitat, and habitat connectivity. All of these
threats are exacerbated by the effects of climate change (Factor E). A
brief summary of these primary stressors is presented below; for a full
description of these stressors, refer to chapter 4 of the SSA report.
No existing regulatory mechanisms adequately address these threats to
the Atlantic pigtoe such that it does not warrant listing under the Act
(Factor D). We did not find that the species faces significant threats
from overutilization for commercial, recreational, scientific, or
education purposes (Factor B), or from disease or predation (Factor C).
Environmental Stressors
Development: Development refers to urbanization of the landscape,
including (but not limited to) land conversion for urban and commercial
use, infrastructure (roads, bridges, utilities), and urban water uses
(water supply reservoirs, wastewater treatment, etc.). The effects of
urbanization may include alterations to water quality, water quantity,
and habitat (both in stream and streamside) (Ren et al. 2003, p. 649;
Wilson 2015, p. 424). These alterations adversely affect both Atlantic
pigtoe adults, which require clear, flowing water with a temperature
less than 35 degrees Celsius ([deg]C) (95 degrees Fahrenheit ([deg]F))
and a dissolved oxygen greater than 3 milligrams per liter (mg/L), and
juveniles, which require very specific interstitial chemistry to
complete that life stage: low salinity (similar to 0.9 parts per
thousand (ppt)), low ammonia (similar to 0.7 mg/L), low levels of
copper and other contaminants, and dissolved oxygen greater than 1.3
mg/L.
Impervious surfaces associated with development negatively affect
water quality when pollutants that accumulate on impervious surfaces
are washed directly into the streams during storm events. Storm water
runoff affects such water quality parameters as temperature, pH,
dissolved oxygen, and salinity, which in turn alter the water chemistry
and could make habitat unsuitable for the Atlantic pigtoe.
Concentrations of contaminants, including nitrogen, phosphorus,
chloride, insecticides, polycyclic aromatic hydrocarbons, and personal
care products, increase with urban development (Giddings et al. 2009,
p. 2; Bringolf et al. 2010, p. 1311).
Urban development can also lead to increased variability in
streamflow, typically increasing the amount of water entering a stream
after a storm and decreasing the time it takes for the water to travel
over the land before entering the stream (Giddings et al. 2009, p. 1).
Stream habitat is altered either directly via channelization or
clearing of riparian areas, or indirectly via high stream flows that
reshape the channel and cause sediment erosion (Giddings et al. 2009,
p. 2). Impervious surfaces associated with increased development cause
rain water to accumulate and flow rapidly into storm drains, thereby
becoming overheated, which can stress or kill mussels when it enters
streams. Pollutants like gasoline, oil, and fertilizers are also washed
directly into streams and can kill mussels and other aquatic organisms.
The large volumes and velocity of water, combined with the extra debris
and sediment entering streams following a storm, can stress, displace,
or kill Atlantic pigtoe and the host fish species on which they depend.
Many of the known host fish of the Atlantic pigtoe can tolerate short
periods of turbidity associated with rain events; however, the cyprinid
host fish typically do not persist in streams with consistently high
sedimentation. Changes in flow may also result in turbidity that can
reduce feeding efficiency and eliminate spawning habitat due to lack of
clean gravel substrate.
A further risk of urbanization is the accompanying road development
that often results in improperly constructed culverts at stream
crossings. These culverts act as barriers, either if flow through the
culvert varies significantly from the rest of the stream, or if the
culvert ends up being perched above the stream bed so that host fish
(and, therefore, the Atlantic pigtoe) cannot pass through them. This
leads to loss of access to quality habitat, as well as fragmented
habitat and a loss of connectivity between populations. This can limit
both genetic exchange and recolonization opportunities.
All of the river basins within the range of this species are
affected to some extent by development, ranging from 3 percent of the
Black River subbasin in the Cape Fear River Basin to 70 percent of the
Crabtree Creek subbasin in the Neuse River Basin (based on the 2011
National Land Cover Data). The Neuse River basin in North Carolina
contains one-sixth of the entire State's population, indicating heavy
development pressure on the watershed. As another example, the Middle
James MU (in the James population) contains 159 impaired stream miles,
2 major discharges, 32 minor discharges, and over 1,300 road crossings.
Similarly, the Muddy Creek MU is currently made up of 12.3 percent
impervious surfaces. For complete data on all of the populations, refer
to appendix C of the SSA report.
Agricultural Practices: The main impacts to the Atlantic pigtoe
from agricultural practices are from nutrient pollution and water
pumping for irrigation. Fertilizers and animal manure, which are both
rich in nitrogen and phosphorus, are the primary sources of nutrient
pollution from agricultural sources when agricultural best management
practices are not used. Excess nutrients impact water quality when it
rains or when water and soil containing nitrogen and phosphorus wash
into nearby waters or leach into the water table and ground waters
causing algal blooms. These algal blooms can harm freshwater mussels by
suffocating host fish and decreasing available oxygen in the water
column.
It is common practice to pump water for irrigation from adjacent
streams or rivers into a reservoir pond, or to spray the stream or
river water directly onto crops. If the water withdrawal is excessive
or done illegally, this may cause impacts to the amount of water
available to downstream sensitive areas during low flow months,
resulting in dewatering of channels and stranding of mussels, leading
to desiccation and death. The Cape Fear River basin has 33 reservoirs,
many of them supplying water to some of the most populated areas in
North Carolina, including the Triad (Greensboro and High Point),

[[Page 51575]]

Chapel Hill, Fayetteville, and Wilmington. All told, this basin
contains one-fifth of the entire State's population and is the most
industrialized basin, as well as home to the most large-scale livestock
operations in the State. However, according to the 2011 National Land
Cover Data, all of the watersheds within the range of the Atlantic
pigtoe are affected by agricultural land uses, most with 20 percent or
more of the watershed having been converted for agricultural use.
Forest Management: A forested landscape provides many ideal
conditions for aquatic ecosystems, and managed forested watersheds tend
to have more natural watershed functions and better water quality than
other land uses (Edwards et al. 2015, p. 60). Silvicultural activities,
when performed according to strict forest practices guidelines (FPGs)
or best management practices (BMPs), can retain adequate conditions for
aquatic ecosystems; however, when FPGs/BMPs are not followed, these
practices can also contribute to the myriad of stressors facing aquatic
systems in the Southeast. Both small- and large-scale forestry
activities have been shown to have a significant impact upon the
physical, chemical, and biological characteristics of adjacent small
streams (Allan 1995, p. 107). The clearing of large areas of forested
wetlands and riparian systems can eliminate shade provided by these
canopies, exposing streams to more sunlight and increasing the instream
water temperature. The increase in stream temperature and light after
deforestation alters the macroinvertebrate and other aquatic species
richness and abundance composition in streams (Couceiro et al. 2007, p.
272; Kishi et al. 2004, p. 283; Caldwell et al. 2014, p. 3). As stated
above, the Atlantic pigtoe is sensitive to changes in temperature, and
sustained temperature increases will stress and possibly lead to
mortality for these mussels.
Forestry activities often include the construction of logging roads
through the riparian zone, which can directly degrade nearby stream
environments. Roads can cause localized sedimentation, as well as
sedimentation traveling downstream into more sensitive habitats. These
effects lead to stress and mortality for the Atlantic pigtoe, as
discussed in ``Development,'' above. While BMPs are currently widely
adhered to today, they were not always common practice in the past. The
average implementation rate of BMPs in the southeastern States is at 92
percent, including approximately 88 percent for Virginia and 90 percent
for North Carolina. While improper implementation is rare, it can have
drastic negative effects on sensitive aquatic species like freshwater
mussels. One small area of riparian zone that is removed can cause
sedimentation and habitat degradation for miles downstream.
Systemic Changes
Effects of Climate Change: Aquatic systems are encountering changes
and shifts in seasonal patterns of precipitation and runoff as a result
of climate change. While mussels evolved in habitats that experience
seasonal fluctuations in discharge, global weather patterns can have an
impact on the normal regimes (e.g., El Ni[ntilde]o or La Ni[ntilde]a).
Both excessively high (i.e., floods and storms) and excessively low
(i.e., droughts) flows can adversely affect the species.
As to droughts, even naturally occurring low flow events can cause
mussels to become stressed, either because they exert significant
energy to move to deeper waters or they may succumb to desiccation.
Because late summer and early fall are stressful periods for the
species due to low flows, droughts during this time of year can be
especially harmful, resulting in increased mortality rates. Atlantic
pigtoe habitat must have adequate flow to deliver oxygen, enable
passive reproduction, and deliver food to filter-feeding mussels.
Further, flow removes contaminants and fine sediments from interstitial
spaces preventing mussel suffocation. Droughts have impacted all river
basins within the range of Atlantic pigtoe, from an ``abnormally dry''
ranking for North Carolina and Virginia in 2001 on the Southeast
Drought Monitor scale to the highest ranking of ``exceptionally dry''
for the entire range of the species in 2002 and 2007. In 2015, the
entire Southeast ranged from ``abnormally dry'' to ``moderate drought''
or ``severe drought.'' These data covered the first week in September,
which, as noted above, is a very sensitive time for drought to be
affecting the species. The Middle Neuse tributaries of the Neuse River
basin had consecutive drought years from 2005 through 2012, indicating
sustained stress on the species over a long period of time.
Increases in the frequency and strength of storms events alter
stream habitat. Stream habitat is altered either directly via
channelization or clearing of riparian areas, or indirectly via high
stream flows that reshape the channel and cause sediment erosion. The
large volumes and velocity of water, combined with the extra debris and
sediment entering streams following a storm, stress, displace, or kill
Atlantic pigtoe and the host fish species on which they depend.
Sedentary freshwater mussels have limited ability to seek refuge
from droughts and floods, and they are completely dependent on specific
water temperatures to complete their physiological requirements.
Changes in water temperature lead to stress, increased mortality, and
also increase the likelihood of extinction.
Invasive Species: Nonnative species are invading aquatic
communities and altering biodiversity by competing with native species
for food, light, or breeding and nesting areas in many areas across the
range of Atlantic pigtoe. For example, the Asian clam (Corbicula
fluminea) alters benthic substrates, competes with native species for
limited resources, and causes ammonia spikes in surrounding water when
they die off en masse. Juvenile mussels need low levels of ammonia to
survive, and studies show that freshwater mollusks are more sensitive
than previously known to some chemical pollutants, including ammonia.
The Asian clam is ubiquitous across the southeastern United States and
is present in watersheds across the range of the Atlantic pigtoe.
The flathead catfish (Pylodictis olivaris) is an apex predator that
feeds on almost anything, including other fish, crustaceans, and
mollusks. Predation by flathead catfish diminishes host fish
communities, reducing the amount of fish available as hosts for the
mussels to complete their glochidia life stage. Introductions of
flathead catfish into rivers in North Carolina and Georgia have led to
steep declines in numbers of native fish (Service 2017). The flathead
catfish has been documented in six of the seven river systems currently
inhabited by the Atlantic pigtoe (James, Roanoke, Tar, Neuse, Cape
Fear, and Yadkin-Pee Dee).
Hydrilla (Hydrilla verticillata), an aquatic plant, alters habitat,
decreases flows, and contributes to sediment buildup in streams.
Hydrilla occurs in several watersheds where the Atlantic pigtoe occurs,
including recent documentation from the upper Neuse system and the Tar
River. The dense growth is altering the flow in these systems and
causing sediment buildup, which can cause suffocation in filter-feeding
mussels. While data are lacking on hydrilla currently having
population-level effects on Atlantic pigtoe, the spread of this
invasive plant is expected to increase in the future.
Barriers: Extinction and extirpation of North American freshwater
mussels can

[[Page 51576]]

be traced to impoundment and inundation of riffle habitats in all major
river basins of the central and eastern United States. Upstream of
dams, the change from flowing to impounded waters, increased depths,
increased buildup of sediments, decreased dissolved oxygen, and the
drastic alteration in resident fish populations can threaten the
survival of mussels and their overall reproductive success. Downstream
of dams, fluctuations in flow regimes, minimal releases and scouring
flows, seasonal dissolved oxygen depletion, reduced or increased water
temperatures, and changes in fish assemblages can also threaten the
survival and reproduction of many mussel species. Because Atlantic
pigtoes use smaller host fish (e.g., darters and minnows), they are
even more susceptible to impacts from habitat fragmentation due to
increasing distance between suitable habitat patches and a low
likelihood of host fish swimming over that distance. Even improperly
constructed culverts at stream crossings can act as significant
barriers and have some similar effects as dams on stream systems (see
discussion under Development, above). These barriers not only fragment
habitats along a stream course, they also contribute to genetic
isolation of the Atlantic pigtoe. Nearly all of the MUs containing
Atlantic pigtoe populations have been impacted by dams, with as few as
2 dams in Mill Creek in the James River basin to 237 dams throughout
the Middle Neuse basin (Service 2017, appendix D). The Middle Neuse
also contains over 5,000 stream crossings, so connectivity in that
basin has been severely affected by barriers. Only the Edisto River
basin within the range of the Atlantic pigtoe has not been impacted by
dams.
Synergistic Effects
In addition to impacting the species individually, it is likely
that several of the above summarized risk factors are acting
synergistically or additively on the species. The combined impact of
multiple stressors is likely more harmful than a single stressor acting
alone. For example, in the Meherrin River MU, there are four stream
reaches with 34 miles of impaired streams. They have low benthic-
macroinvertebrate scores, low dissolved oxygen, low pH, and contain
Escherichia coli (also known as E. coli). There are 16 non-major and 2
major discharges within this MU, along with 7 dams, and 676 road
crossings. Additionally, droughts were recorded for 4 consecutive years
(2007-2010) in this MU. The combination of all of these stressors on
the sensitive aquatic species in this habitat has probably impacted
Atlantic pigtoe, in that only two individuals have been recorded here
since 2005.
Conservation Actions
The Service and State wildlife agencies are working with numerous
partners to provide technical guidance and offering conservation tools
to meet both species and habitat needs in aquatic systems in North
Carolina. Land trusts are targeting key parcels for acquisition;
Federal and State biologists are surveying and monitoring species
occurrences; and, recently, there has been a concerted effort to ramp
up captive propagation and species population restoration via
augmentation, expansion, and reintroduction efforts. In 2014, North
Carolina Wildlife Resources Commission staff and partners began a
concerted effort to propagate the Atlantic pigtoe in hopes of
augmenting existing populations in the Tar and Neuse River basins. In
July 2015, 250 Atlantic pigtoes were stocked into Sandy Creek, a
tributary of the Tar River. Annual monitoring to evaluate growth and
survival is planned, and additional propagation and stocking efforts
will continue in upcoming years (Service 2017, p. 59).
Future Scenarios
For the purpose of this assessment, we define viability as the
ability of the species to sustain populations in the wild over time. To
help address uncertainty associated with the degree and extent of
potential future stressors and their impacts on the needs of the
species, the 3Rs were applied using four plausible future scenarios. We
devised these scenarios by eliciting expert information on the primary
stressors anticipated to affect the species into the future: Habitat
loss and degradation due to urbanization and the effects of climate
change. The models that were used to forecast both urbanization and
climate change projected out 50 years in the future. For more detailed
information on these models and their projections, please see the SSA
report (Service 2017, chapter 3).
For example, in scenario one, the ``status quo'' scenario, factors
that influence current populations of the Atlantic pigtoe were assumed
to remain constant over the 50-year time horizon. Climate models
predict that, if emissions of greenhouse gasses continue to increase,
the Southeast will experience an increase in low flow (drought) events.
Likewise, this scenario assumed the ``business as usual'' pattern of
urban growth, which predicts that urbanization will continue to
increase rapidly (using simulations that point to a future in which the
extent of urbanization in the Southeast is projected to increase by 101
to 192 percent). This continued growth in development means increases
in impervious surfaces, increased variability in streamflow,
channelization of streams or clearing of riparian areas, and other
negative effects explained above under Development. The ``status quo''
scenario also assumes that current conservation efforts would remain in
place but that no new conservation actions would be taken. In this
scenario, a substantial loss of resiliency, representation, and
redundancy is expected. Under this scenario, we predict the condition
of MUs as: Zero in high condition, two in moderate condition, and six
in low condition, with the remaining six likely to be extirpated. With
the likely extirpation of 6 out of 14 currently extant MUs, and only
the Tar population retaining more than one moderately resilient MU,
redundancy would be reduced. Representation would be reduced, with only
five (42 percent) of the former river basins occupied, and with
extremely limited variability in the Mountains and Coastal Plain, and
reduced variability in the Piedmont.
In the SSA Report we describe results for three more scenarios that
represent the full likely range of plausible future outcomes for
development, possible climate changes, and the species' expected
response to threats. Results for our full resiliency analysis for the
future projections is summarized in Table 1 below.

Table 1--Future Scenarios of Population Conditions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Populations: management units Current Status Quo Pessimistic Optimistic Opportunistic
--------------------------------------------------------------------------------------------------------------------------------------------------------
James: Craig Creek Subbasin.... Moderate............... Low................... x *................... Moderate.............. Moderate.
James: Middle James............ Very Low............... x..................... x..................... x..................... x.
Chowan: Nottoway............... Moderate............... x..................... x..................... Low................... Low.

[[Page 51577]]

Chowan: Meherrin............... Low.................... x..................... x..................... x..................... x.
Roanoke: Dan River Subbasin.... Low.................... x..................... x..................... Moderate.............. x.
Tar: Upper/Middle Tar.......... High................... Low................... Low................... Moderate.............. Low.
Tar: Lower Tar................. Low.................... Low................... x..................... Low................... x.
Tar: Fishing Creek............. High................... Moderate.............. Low................... High.................. Moderate.
Tar: Sandy-Swift............... High................... Moderate.............. Low................... High.................. Moderate.
Neuse: Upper Neuse............. Moderate............... Low................... x..................... Moderate.............. Low.
Neuse: Middle Neuse............ Moderate............... x..................... x..................... Low................... x.
Cape Fear: New Hope............ Moderate............... Low................... x..................... Low................... x.
Cape Fear: Deep River Subbasin. Low.................... x..................... x..................... Moderate.............. Low.
Pee Dee: Uwharrie/Little....... Low.................... Low................... Low................... Low................... Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* x= likely extirpated.

Determination

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. Under section 4(a)(1) of the Act, we may list a species based
on (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Atlantic pigtoe. 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 throughout all or a
significant portion of its range within the foreseeable future.''
We considered whether the Atlantic pigtoe is presently in danger of
extinction and determined that proposing endangered status is not
appropriate. The historical range of the Atlantic pigtoe included
streams and rivers in 12 Atlantic Slope drainages from the James River
Basin to the Altamaha River Basin, with the documented historical
distribution in 28 MUs within those basins. Currently, the Atlantic
pigtoe is presumed extirpated from 50 percent (14) of the historically
occupied MUs and 5 of the drainages. Of the remaining 14 occupied MUs,
3 (21 percent) are estimated to be highly resilient and 5 (36 percent)
moderately resilient, with 6 (43 percent) having low resiliency. Eight
moderate to high resiliency MUs provide the ability for the species to
withstand stochastic disturbance events. Scaling up from the MU to the
population level, 1 of 12 former populations (the Tar population) was
estimated to have high resiliency, 1 population (the Neuse population)
was estimated to have moderate resiliency, 5 populations (the James,
Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations) had low
estimated resiliency, and 5 of the former 12 populations are presumed
extirpated; this means that 42 percent of the species' historic range
has been eliminated. Seventy-one percent of streams that remain part of
the current species' range are estimated to be in low condition as
defined in the SSA report. The species continues to maintain
physiographic representation in all 3 regions it historically occupied,
although occupancy has decreased in each region by between 48 and 76
percent. However, while threats are currently acting on the species and
many of those threats are expected to continue into the future (see
below), we did not find that the species is currently in danger of
extinction throughout all of its range. With eight moderately or highly
resilient MUs in three physiographic regions, the current condition of
the species still provides for enough resiliency, redundancy, and
representation such that it is not at risk of extinction now.
However, estimates of future resiliency, redundancy, and
representation for the Atlantic pigtoe are also low. The Atlantic
pigtoe faces a variety of threats from declines in water quality, loss
of stream flow, riparian and instream fragmentation, and deterioration
of instream habitats (Factor A). These threats, which are expected to
be exacerbated by continued urbanization (Factor A) and the effects of
climate change (Factor E), were central to our assessment of the future
viability of the Atlantic pigtoe. Given current and future decreases in
resiliency, populations will become more vulnerable to extirpation from
stochastic events, in turn, resulting in concurrent losses in
representation and redundancy. The range of plausible future scenarios
of these Atlantic pigtoe habitat conditions and population factors
suggest possible extirpation in as many as five of seven currently
extant populations. Even the most optimistic model predicted that only
two MUs will be in high condition in 50 years and the remaining
populations are expected to be characterized by low occupancy and
abundance. Under most modeled scenarios, the species is likely to lose
enough resiliency, redundancy, and representation such that it is at
risk of not being viable. All four scenarios presented as
representative of plausible future scenarios create conditions where
the Atlantic pigtoe would not have enough resiliency, redundancy, or
representation to sustain populations over time. While determining the
probability of each scenario was not possible with the available data,
the entire risk profile that was provided by looking across the range
of the four plausible scenarios showed the species is continuing to
lose resiliency, redundancy, and representation throughout the range in
all likely scenarios. In short, our analysis of the species' current
and future conditions, as well as the conservation efforts discussed
above, show that the population and habitat factors used to determine
the resiliency, representation, and redundancy for the species will
continue to decline over the next 50 years so that the species is
likely to become in danger of extinction throughout its range within
the foreseeable future. Fifty years was considered ``foreseeable'' in
this case because it included projections from both available models
while taking into consideration that Atlantic pigtoes are slow-growing
and long-lived species, and, therefore, respond more slowly on a
population or species level to negative impacts on the ecosystem. We
can

[[Page 51578]]

reasonably rely on the future of 50 years as presented in the models of
predicted urbanization and climate change, and predict how those
threats will affect the status of the species.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
Atlantic pigtoe is likely to become an endangered species within the
foreseeable future throughout its range, we find it unnecessary to
proceed to an evaluation of potentially significant portions of the
range. Where the best available information allows the Services to
determine a status for the species rangewide, that determination should
be given conclusive weight because a rangewide determination of status
more accurately reflects the species' degree of imperilment and better
promotes the purposes of the statute. Under this reading, we should
first consider whether listing is appropriate based on a rangewide
analysis and proceed to conduct a ``significant portion of its range''
analysis if, and only if, a species does not qualify for listing as
either endangered or threatened according to the ``all'' language. We
note that the court in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not
address this issue, and our conclusion is therefore consistent with the
opinion in that case.
Therefore, on the basis of the best available scientific and
commercial information, we propose to list the Atlantic pigtoe as
threatened in accordance with sections 3(20) and 4(a)(1) of the Act.

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 results in public awareness and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop 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
reclassification (such as ``downlisting'' from endangered to
threatened) or removal from the Federal Lists of Endangered and
Threatened Wildlife and Plants (``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 Raleigh Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If we list the Atlantic pigtoe, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Virginia and North
Carolina would be eligible for Federal funds to implement management
actions that promote the protection or recovery of the Atlantic pigtoe.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/grants.
Although the Atlantic pigtoe is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).

II. Proposed Critical Habitat Designation

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as: An area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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

[[Page 51579]]

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 and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features 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 can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. We will determine whether unoccupied areas are essential for
the conservation of the species by considering the life-history,
status, and conservation needs of the species. This will be further
informed by any generalized conservation strategy, criteria, or outline
that may have been developed for the species to provide a substantive
foundation for identifying which features and specific areas are
essential to the conservation of the species and, as a result, the
development of the critical habitat designation. 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 Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) 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.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that the Secretary shall designate
critical habitat at the time the species is determined to be an
endangered or threatened species to the maximum extent prudent and
determinable. Our regulations (50 CFR 424.12(a)(1)) state that the
designation of critical habitat is not prudent when one or both of the
following situations exist:

[[Page 51580]]

(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species. In determining whether a designation would not be
beneficial, the factors the Service may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any areas meet the definition of
``critical habitat.''
There is currently no imminent threat of take attributed to
collection or vandalism identified under Factor B for this species, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In the absence of finding that the
designation of critical habitat would increase threats to a species, we
next determine whether such designation of critical habitat would not
be beneficial to the species. In the information provided above on
threats to the species, we determined that there are habitat-based
threats to the Atlantic pigtoe, so the designation of critical habitat
would be beneficial to the species through the application of section 7
of the Act to actions that affect habitat as well as those that affect
the species. Because we have determined that the designation of
critical habitat will not likely increase the degree of threat to the
species and would be beneficial, we find that designation of critical
habitat is prudent for the Atlantic pigtoe.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Atlantic pigtoe is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the species is
located. We find that this information is sufficient for us to conduct
both the biological and economic analyses required for the critical
habitat determination. Therefore, we conclude that the designation of
critical habitat is determinable for the Atlantic pigtoe.

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 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. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
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.
We derive the specific physical or biological features essential
for Atlantic pigtoe from studies of this species' habitat, ecology, and
life history. The primary habitat elements that influence resiliency of
the Atlantic pigtoe include water quality, water quantity, substrate,
and habitat connectivity. A full description of the needs of
individuals, populations, and the species is available from the SSA
report; the individuals' needs are summarized below in Table 2.

Table 2--Life History and Resource Needs of the Atlantic Pigtoe
------------------------------------------------------------------------
Resources and/or
circumstances needed
Life stage for individuals to Resource function
complete each life (BFSD *)
stage
------------------------------------------------------------------------
Fertilized Eggs--early spring Clear, B
flowing water.
Sexually
mature males
upstream from
sexually mature
females..
Appropriate ..................
spawning
temperatures.
Presence of ..................
gravid females.
Glochidia--late spring to Clear, B, D
early summer. flowing water.
Just enough
flow to attract
drift feeding
minnows..
Presence of ..................
host fish for
attachment.
Juveniles--excystment from Clear, F, S
host fish to ~20mm shell flowing water.
length. Host fish
dispersal..
Appropriate
interstitial
chemistry..
--Low salinity ..................
(~0.9 ppt)..
--Low ammonia ..................
(~0.7 mg/L)..
--Low levels of ..................
copper and other
contaminants..
--Dissolved oxygen ..................
>1.3 mg/L..
Appropriate ..................
substrate for
settlement.
Adequate ..................
food availability.
Adult-->20 mm shell length... Clear, F, S
flowing water.
Appropriate
substrate (silt-free
gravel and stable,
coarse sand)..
Adequate ..................
food availability
(phytoplankton and
detritus).
High ..................
dissolved oxygen
(>3mg/L).

[[Page 51581]]

Water ..................
temperature <35
[deg]C.
------------------------------------------------------------------------
* B=breeding; F=feeding; S=sheltering; D=dispersal

Summary of Essential Physical or Biological Features
In summary, we derive the specific physical or biological features
essential to the conservation of Atlantic pigtoe from studies of this
species' habitat, ecology, and life history as described above.
Additional information can be found in the SSA Report (Service 2017)
available on https://www.regulations.gov under Docket No. FWS-R4-ES-
2018-0046. We have determined that the following physical or biological
features are essential to the conservation of Atlantic pigtoe:
(1) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater mussel
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(2) Adequate flows, or a hydrologic flow regime (which includes the
severity, frequency, duration, and seasonality of discharge over time),
necessary to maintain benthic habitats where the species is found and
to maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the mussel's and
fish host's habitat, food availability, spawning habitat for native
fishes, and the ability for newly transformed juveniles to settle and
become established in their habitats.
(3) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(4) The presence and abundance of fish hosts necessary for
recruitment of the Atlantic pigtoe.

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 which 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 Atlantic
pigtoe may require special management considerations or protections to
reduce the following threats: (1) Urbanization of the landscape,
including (but not limited to) land conversion for urban and commercial
use, infrastructure (roads, bridges, utilities), and urban water uses
(water supply reservoirs, wastewater treatment, etc.); (2) nutrient
pollution from agricultural activities that impact water quantity and
quality; (3) significant alteration of water quality; (4) improper
forest management or silviculture activities that remove large areas of
forested wetlands and riparian systems; (5) culvert and pipe
installation that creates barriers to movement; (6) impacts from
invasive species; (7) changes and shifts in seasonal precipitation
patterns as a result of climate change; and (8) 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 best management practices (BMPs)
designed to reduce sedimentation, erosion, and bank side destruction;
protection of riparian corridors and leaving sufficient canopy cover
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; and reduction of
other watershed and floodplain disturbances that release sediments,
pollutants, or nutrients into the water.
In summary, we find that the occupied areas we are proposing to
designate as critical habitat contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. Special
management considerations or protection may be required of the Federal
action agency to eliminate, or to reduce to negligible levels, the
threats affecting the physical and biological features of each unit.

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.
The current distribution of the Atlantic pigtoe is much reduced
from its historical distribution. We anticipate that recovery will
require continued protection of existing populations and habitat, as
well as ensure there are adequate numbers of mussels in stable
populations and that these populations occur over a wide geographic
area. This strategy will help to ensure that catastrophic events, such
as the effects of hurricanes (e.g., flooding that causes excessive
sedimentation, nutrients, and debris to disrupt stream ecology), cannot
simultaneously affect all known populations. Rangewide recovery
considerations, such as maintaining existing genetic diversity and
striving for representation of all major portions of the species'
current range, were considered in formulating this proposed critical
habitat.
Sources of data for this proposed critical habitat include multiple
databases maintained by universities and State agencies for Virginia
and North Carolina, and numerous survey reports on streams throughout
the species' range (see SSA report). We have also reviewed available
information that pertains to the habitat requirements of this species.
Sources of information on habitat requirements include studies
conducted at occupied sites and published in peer-reviewed articles,
agency reports, and data collected during monitoring efforts (Service
2017).

[[Page 51582]]

Areas Occupied at the Time of Listing
We identified stream channels that currently support populations of
the Atlantic pigtoe. We defined ``current'' as stream channels with
observations of the species from 2005 to the present. Due to the
breadth and intensity of survey effort done for freshwater mussels
throughout the known range of the species, it is reasonable to assume
that streams with no positive surveys since 2005 should not be
considered occupied for the purpose of our analysis. However, since
each particular area is not surveyed every year, and these cryptic
mussels have a 0.42 detection probability, only one negative survey
would not be sufficient to determine that the species is not present.
Therefore, it is reasonable to assume that if the species had been seen
within the past ten years that it could be considered currently
occupied. Specific habitat areas were delineated based on Natural
Heritage Element Occurrences (EOs) following NatureServe's occurrence
delineation protocol for freshwater mussels (NatureServe 2018). These
EOs provide habitat for Atlantic pigtoe subpopulations and are large
enough to be self-sustaining over time, despite fluctuations in local
conditions. The EOs contain stream reaches with interconnected waters
so that host fish containing Atlantic pigtoe glochidia can move between
areas, at least during certain flows or seasons.
We consider the following streams to be occupied by the species at
the time of proposed listing: Craig Creek, Mill Creek, Middle James
River, Nottoway River Subbasin, Meherrin River, Dan River, Aarons
Creek, Upper/Middle Tar River, Sandy/Swift Creek, Fishing Creek
Subbasin, Lower Tar River, Upper Neuse River Subbasin, Middle Neuse
River Subbasin, New Hope Creek, Deep River Subbasin, and Little River
Subbasin (see Unit Descriptions, below). The proposed critical habitat
designation does not include all streams known to have been occupied by
the species historically; instead, it includes only the occupied
streams within the historical range that have also retained the
physical or biological features that will allow for the maintenance and
expansion of existing populations.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are not proposing to designate any areas outside the
geographical area currently occupied by the species because we did not
find any unoccupied areas that were essential for the conservation of
the species. The protection of eight moderately or highly resilient
management units across the physiographic representation of the range
would sufficiently reduce the risk of extinction. Improving the
resiliency of populations in the currently occupied streams will
increase viability to the point that the protections of the Act are no
longer necessary.
General Information on the Maps of the Proposed Critical Habitat
Designation
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Atlantic pigtoe. 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 proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation under the Act with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the proposed critical
habitat designation in the discussion of individual units below. 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 under
Docket No. FWS-R4-ES-2018-0046, and at the field office responsible for
the designation (see FOR FURTHER INFORMATION CONTACT, above).

Proposed Critical Habitat Designation

We are proposing to designate approximately 542 river mi (872 river
km) in 16 units as critical habitat for the Atlantic pigtoe. All of the
units are currently occupied by the species and contain all of the
physical and biological features essential to the conservation of the
species. These proposed critical habitat areas, described below,
constitute our current best assessment of areas that meet the
definition of critical habitat for the Atlantic pigtoe. Table 3 shows
the name, land ownership of the riparian areas surrounding the units,
and approximate river miles of the proposed designated units for the
Atlantic pigtoe. Because all streambeds are navigable waters, the
actual critical habitat units are all owned by the State in which they
are located.

Table 3--Proposed Critical Habitat Units for the Atlantic Pigtoe
------------------------------------------------------------------------
River miles
Critical habitat unit Riparian ownership (kilometers)
------------------------------------------------------------------------
1. JR1--Craig Creek............ Federal................ 29 (46.7)
2. JR2--Mill Creek............. Federal................ 1 (1.6)
3. JR3--Middle James River..... Private................ 3 (4.8)
4. CR1--Nottoway River Subbasin Private; Federal....... 50 (80.5)
5. CR2--Meherrin River......... Private................ 5 (8)
6. RR1--Dan River.............. Private................ 7 (11.3)
7. RR2--Aarons Creek........... Private................ 12 (19.3)
8. TR1--Upper/Middle Tar River. Private; Easements..... 85 (136.8)
9. TR2--Sandy/Swift Creek...... Private; State; 58 (93.3)
Easements.
10. TR3--Fishing Creek Subbasin Private; State; 85 (136.8)
Easements.
11. TR4--Lower Tar River....... Private; State; 30 (48.3)
Easements.
12. NR1--Upper Neuse River Private; State; 60 (95)
Subbasin. Easements.
13. NR2--Middle Neuse River.... Private; State; County; 61 (98.2)
Easements.
14. CF1--New Hope Creek........ Private; Easements..... 6 (9.7)
15. CF2--Deep River............ Private................ 10 (16.1)

[[Page 51583]]

16. YR1--Little River.......... Private; Easements..... 40 (64.4)
---------------
Total...................... ....................... 542 (872)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all proposed units, and reasons
why they meet the definition of critical habitat for Atlantic pigtoe,
below.
James River Population
Unit 1: JR1--Craig Creek
Unit 1 consists of 29 river mi (46.7 river km) of Craig Creek in
Craig and Botecourt Counties, Virginia. The land adjacent to Craig
Creek is primarily private, although some land along the river is
federally owned by George Washington and Jefferson National Forest (GWJ
NF). The unit currently supports all breeding, feeding, and sheltering
needs for the species.
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the creek
and serve as indicators of other forms of pollution such as bacteria
and toxins, reducing water quality for the species. Sources of these
types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff. Five stream reaches, totaling approximately 21
miles, are impaired for aquatic life in the lower Craig Creek
watershed. Impairment is indicated by low benthic-macroinvertebrate
bioassessments, pH issues, high temperature, and fecal coliform.
The GWJ NF surrounds the Craig Creek Subbasin; protections and
management of the National Forest will likely enable habitat conditions
(water quality, water quantity/flow, instream substrate, and
connectivity) to remain high into the future. Targeted species
restoration in conjunction with current associated-species restoration
efforts in Johns, Dicks, and Little Oregon Creeks within the Craig
Creek Subbasin will likely improve the Atlantic pigtoe's resiliency in
these areas. Maintenance of forested buffer conditions is essential to
retaining high-quality instream habitat in this unit.
Unit 2: JR2--Mill Creek
Unit 2 consists of a 1-mile (1.6-km) segment of Mill Creek at the
VA39 (Mountain Valley Road) crossing in Bath County, Virginia. The land
surrounding the creek is privately owned. The unit currently supports
all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within Unit 2 to address excess nutrients, sediment, and pollutants
that enter the creek and serve as indicators of other forms of
pollution such as bacteria and toxins. Sources of these types of
pollution are wastewater, agricultural runoff, and urban stormwater
runoff.
The GWJ NF surrounds most of the Mill Creek watershed; protections
and management of the National Forest will likely enable habitat
conditions to remain high into the future. Targeted species restoration
in conjunction with current associated-species restoration efforts in
the Cowpasture River Basin will likely improve the Atlantic pigtoe's
resiliency in these areas. Maintenance of forested buffer conditions is
essential to retaining high-quality instream habitat in this unit.
Unit 3: JR3--Middle James River
Unit 3 consists of a 3-mile (4.8-km) segment of the Middle James
River downstream of its confluence with the Slate River, under the
crossing of VA Hwy 15 (James Madison Highway) along the boundary of
Fluvanna and Buckingham Counties, Virginia. The riparian areas on
either side of the river are privately owned. The unit currently
supports all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within Unit 3 to address excess nutrients, sediment, and pollutants
that enter the river and serve as indicators of other forms of
pollution such as bacteria and toxins. Sources of these types of
pollution are wastewater, agricultural runoff, and urban stormwater
runoff.
Chowan River Population
Unit 4: CR1--Nottoway River Subbasin
Unit 4 consists of 50 river miles (80.5 river km) of the Nottoway
River in Nottoway, Lunenburg, Brunswick, Dinwiddie, and Greenville
Counties, Virginia. The proposed designation begins downstream of the
Nottoway River's confluence with Dickerson Creek and ends at its
confluence with Buckskin Creek. Land bordering the river is primarily
privately owned, although some of the land along the river is part of
the Fort Pickett National Guard Installation (see Exemptions, below).
The unit currently supports all breeding, feeding, and sheltering needs
of the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. In the past decade,
the Nottoway River suffered from several seasonal drought events, which
not only caused very low dissolved oxygen conditions but also decreased
food delivery because of minimal flows. In addition, these conditions
led to increased predation rates on potential host fishes that were
concentrated into low-flow refugia (e.g., pools). Urban stormwater and
nonpoint source pollution have been identified as contributing to water
quality issues in this unit; therefore, special management
considerations for riparian buffer restoration, reduced surface and
groundwater withdrawals, and stormwater retrofits will benefit the
habitat in this unit. Additional threats to this system include oil and
gas pipeline projects that propose to cross streams at locations where
the species occurs. Additional special management considerations or
protection may be required within this unit to address low water levels
as a result of water withdrawals and drought, as well as recommendation
of alternate routes for oil and gas pipelines, or directional bore for
those projects.
Unit 5: CR2--Meherrin River
Unit 5 consists of 5 miles (8 km) of the Meherrin River in
Brunswick County, Virginia, from approximately 1.5 river miles below
the confluence with Saddletree Creek under VA Hwy 46 (Christana
Highway) to VA715 (Iron Bridge Road). The land on either side of the
proposed critical habitat unit is privately owned. The unit currently
supports all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Like the Nottoway
River, the Meherrin River has been affected by seasonal droughts,
resulting in low flow

[[Page 51584]]

conditions and low dissolved oxygen conditions. The rural nature of the
unit will benefit from following agricultural and silvicultural BMPs.
Additional special management considerations or protection may be
required within this unit to address low water levels as a result of
water withdrawals and drought.
Roanoke River Population
Unit 6: RR1--Dan River
Unit 6 consists of 7 miles (11.3 km) of the Dan River along the
border of Virginia and North Carolina from the Stateline Bridge Road in
Pittsylvania County, Virginia, downstream to the confluence with
Williamson Creek in Rockingham County, North Carolina. The land on
either side of the proposed critical habitat unit is privately owned.
The unit currently supports all breeding, feeding, and sheltering needs
for the species.
Special management considerations or protection may be required
within this unit to address threats. For example, a Duke Energy Coal
Ash spill occurred upstream of this unit in February 2014; subsequent
actions related to mitigating the effects of the spill will ultimately
benefit the habitat in this unit, potentially allowing species
restoration efforts.
Unit 7: RR2--Aarons Creek
Unit 7 consists of 12 miles (19.3 km) of Aarons Creek, from NC96 in
Granville County, North Carolina, downstream across the North Carolina-
Virginia border to VA602 (White House Road) along the Mecklenburg
County-Halifax County line in Virginia. Land on either side of the
proposed critical habitat unit is privately owned. The unit currently
supports all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. There are two
impaired stream reaches totaling approximately 12 miles (19.3 km) in
the Aarons Creek watershed. An ``impairment'' designation by the State
here is a result of low dissolved oxygen and low benthic-
macroinvertebrate assessment scores. Special management focused on
maintaining riparian buffers and following BMPs will be important for
the habitat in this unit.
Tar River Population
Unit 8: TR1--Upper/Middle Tar River
This unit consists of 85 miles (136.8 km) of the mainstem of the
upper and middle Tar River as well as several tributaries (Bear Swamp
Creek, Crooked Creek, Cub Creek, and Shelton Creek), all in North
Carolina. Land bordering the river and creeks is mostly privately owned
(74 mi (119 km)), with some areas in public ownership or easements (11
mi (17 km)). The unit currently supports all breeding, feeding, and
sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing too much growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen. As
a result, there are six ``impaired'' stream reaches (as defined on the
State's 303d list) totaling approximately 32 miles in the unit.
Expansion or addition of new wastewater discharges are also a threat to
habitat in this unit. Special management focused on agricultural BMPs,
implementing highest levels of treatment of wastewater practicable,
maintenance of forested buffers, and connection of protected riparian
corridors will benefit habitat for the species in this unit.
Unit 9: TR2--Sandy/Swift Creek
This unit consists of a 58-mile (93.3-km) segment of Sandy/Swift
Creek in Granville, Vance, Franklin, and Nash Counties, North Carolina.
Land bordering the river and creeks is mostly privately owned (50 mi
(80 km)) with some areas covered by protective easements (8 mi (13km)).
The unit currently supports all breeding, feeding, and sheltering needs
for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen;
there is one ``impaired'' stream reach totaling approximately 5 miles
(8 km) in this unit. Special management focused on agricultural BMPs,
maintenance of forested buffers, and connection of protected riparian
corridors will benefit habitat for the species in this unit.
Unit 10: TR3--Fishing Creek Subbasin
This unit consists of 85 miles (136.8 km) in Fishing Creek, Little
Fishing Creek, Shocco Creek, and Maple Branch located in Warren,
Halifax, Franklin, and Nash Counties, North Carolina. The land
bordering the creeks includes private parcels (56 miles (90 km)),
protective easements (14 miles (23 km)), and State game lands (15 miles
(24 km)). The unit currently supports all breeding, feeding, and
sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen.
Special management focused on agricultural BMPs, maintenance of
forested buffers, and connection of protected riparian corridors will
benefit habitat for the species in this unit.
Unit 11: TR4--Lower Tar River
This unit consists of 30 miles (48.3 km) of the Lower Tar River and
Fishing Creek in Edgecombe County, North Carolina, from NC97 near
Leggett, North Carolina, to the Edgecombe-Pitt County line near NC33.
Land along the river is divided between private parcels, protective
easements, State game lands, and State park land. The unit currently
supports all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen.
Special management focused on agricultural BMPs, maintenance of
forested buffers, and connection of protected riparian corridors will
benefit habitat for the species in this unit.
Neuse River Population
Unit 12: NR1--Upper Neuse River Subbasin
This unit consists of 60 river miles (95 river km) in four subunits
including Flat River, Little River, Eno River, and the Upper Eno River.
The unit currently supports all breeding, feeding, and sheltering needs
for the species.
The Flat River subunit consists of 19 river miles (30.6 river km)
in the Flat River Subbasin in Person and Durham Counties, North
Carolina, including the South Flat River downstream of Dick Coleman
Road, the North Flat River near Parsonage Road, and Deep Creek near
Helena-Moriah Road downstream where each river converges into the Flat
River downstream of State Forest Road. Land along the Flat River
subunit includes private parcels, easements, and State forest land.

[[Page 51585]]

The Little River subunit includes 18 river miles (29 river km) of
the North Fork and South Fork Little Rivers in Orange and Durham
Counties, North Carolina, bordered by both private land and easements.
The Upper Eno River subunit consists of 4 river miles (6.4 river
km) in Orange County, North Carolina, including the West Fork Eno River
upstream of Cedar Grove Road to the confluence with McGowan Creek. This
subunit is bordered by 3 miles (4.8 km) of private land and 1 mile (1.6
km) of conservation parcels.
The Eno River subunit consists of 18 river miles (29 river km) in
Orange and Durham Counties, North Carolina, from below Eno Mountain
Road to NC15-501. Land bordering the river contains private land, State
park land, and conservation parcels.
Special management considerations or protection may be required
within this unit to address a variety of threats. Large quantities of
nutrients (especially nitrogen) contributed by fertilizers and animal
waste washed from lawns, urban developed areas, farm fields, and animal
operations are impacting aquatic ecosystems in this unit. More than 300
permitted point-source sites discharge wastewater into streams and
rivers in the basin. Development is also impacting areas along the
Upper Neuse River.
Special management considerations in this unit include using the
highest available wastewater treatment technologies, retrofitting
stormwater systems, eliminating direct stormwater discharges,
increasing open space, maintaining connected riparian corridors, and
treating invasive species (like hydrilla).
Unit 13: NR2--Middle Neuse River
This unit consists of 61 river miles (98.2 river km) in five
subunits including Swift Creek, Middle Creek, Upper Little River,
Middle Little River, and Contentnea Creek, all in North Carolina. The
unit currently supports all breeding, feeding, and sheltering needs for
the species.
The Middle Creek subunit is 19 river miles (30.6 river km), and the
Swift Creek subunit is 25 river miles (40.2 river km), both in Wake and
Johnston Counties. They are primarily bordered by private land with
some easement parcels.
The Upper Little River subunit includes 4 miles (6.4 km) of the
Upper Little River from the confluence with Perry Creek to Fowler Road
in Wake County, North Carolina. The land along this subunit is
primarily county-owned with some private parcels.
The Middle Little River subunit includes 11 river miles (17.7 river
km) in Johnston County, North Carolina. This area is bordered
predominantly by private land and some conservation parcels.
The Contentnea Creek subunit consists of 2 river miles (3.2 river
km) near NC581 in Wilson County, North Carolina, bordered entirely by
private land.
Special management considerations or protection may be required
within this unit to address a variety of threats. Large quantities of
nutrients (especially nitrogen) contributed by fertilizers and animal
waste washed from lawns, urban developed areas, farm fields, and animal
operations are impacting aquatic ecosystems in this unit. More than 300
permitted point-source sites discharge wastewater into streams and
rivers in the basin. Development is also impacting areas along the
Middle Neuse River.
There are 49 State-defined ``impaired'' stream reaches totaling
approximately 447 miles (719.4 km) in this unit. There are many factors
that cause an impairment label to be given by the State, including low
benthic-macroinvertebrate assessment scores, low pH, poor fish
community scores, low dissolved oxygen, polychlorinated biphenyls
(PCBs), copper, and zinc. There are 349 non-major and 6 major (Apex
Water Reclamation Facility, Central Johnston County Waste Water
Treatment Plant, Cary Waste Water Treatment Plant, City of Raleigh
Wastewater Treatment Plant, Dempsey Benton Water Treatment Plant, and
Terrible Creek Waste Water Treatment Plant) permitted discharges in
this MU. Special management related to developed areas, including using
the best available wastewater treatment technologies, retrofitting
stormwater systems, eliminating direct stormwater discharges,
increasing open space in the watershed, and maintaining connected
riparian corridors, will be important to maintain habitat in this unit.
Cape Fear Population
Unit 14: CF1--New Hope Creek
This unit consists of 6 mi (9.7 km) of habitat in the New Hope
Creek in Orange County, North Carolina. The land bordering the creek
includes private parcels and some easements. The unit currently
supports all breeding, feeding, and sheltering needs for the species.
Special management considerations or protection may be required
within this unit to address a variety of threats. Large quantities of
nutrients (especially nitrogen) contributed by fertilizers and animal
waste washed from lawns, urban developed areas, farm fields, and animal
operations are impacting aquatic ecosystems in this unit. More than 200
permitted point-source sites discharge wastewater into streams and
rivers in the basin. Development is also impacting areas along New Hope
Creek.
Special management, including using the best available wastewater
treatment technologies, retrofitting stormwater systems, eliminating
direct stormwater discharges, increasing open space in the watershed,
and maintaining connected riparian corridors, may be required to
maintain habitat in this unit.
Unit 15: CF2--Deep River
The Deep River Subbasin unit consists of 10 river miles (16.1 river
km) in Randolph County, North Carolina, including the mainstem as well
as Richland Creek and Brush Creek. Land bordering the area is privately
owned. The unit currently supports all breeding, feeding, and
sheltering needs for the species.
The Deep River Subbasin is situated in a mostly rural part of the
Cape Fear River Basin, and large-scale agriculture and livestock
operations are present. Special management considerations or protection
may be required within this unit to insure the use of agriculture BMPs,
especially preventing cattle access to streams, as well as protecting
forested riparian buffers to benefit habitat in this unit.
Yadkin-Pee Dee River Population
Unit 16: YR1--Little River
This unit consists of 40 miles (64.4 km) of Little River in
Randolph and Montgomery Counties, North Carolina. Land along the river
is predominantly privately owned with some parcels in conservation
easements. The unit currently supports all breeding, feeding, and
sheltering needs for the species.
Habitat fragmentation from dams and reservoirs is impacting the
aquatic ecosystems in this unit. Sedimentation from intensive
agriculture is the top pollution problem in the basin. Special
management considerations or protection may include the use of
agricultural BMPs, especially preventing cattle access to streams, as
well as protecting forested riparian buffers to benefit habitat in this
unit.

Exemptions

Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the

[[Page 51586]]

conservation and management of natural resources to complete an
integrated natural resources management plan (INRMP) by November 17,
2001. An INRMP integrates implementation of the military mission of the
installation with stewardship of the natural resources found on the
base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) 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 prepared under section 670a of this title [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.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyze INRMPs
developed by military installations located within the range of
proposed critical habitat designations to determine if they meet the
criteria for exemption from critical habitat under section 4(a)(3) of
the Act.
We have identified one area within the proposed critical habitat
designation that consists of Department of Defense lands with a
completed, Service-approved INRMP. The Army National Guard--Maneuver
Training Center Fort Pickett (Fort Pickett) is located in southeastern
North Carolina on 41,000 acres in three counties: Nottoway, Brunswick,
and Dinwiddie. Fort Pickett is federally owned land that is managed by
the Virginia Army National Guard and is subject to all federal laws and
regulations. The Fort Pickett INRMP covers fiscal years 2017-2021, and
serves as the principal management plan governing all natural resource
activities on the installation. Among the goals and objectives listed
in the INRMP is habitat management for rare, threatened, and endangered
species, and the Atlantic pigtoe is included in this plan. Management
actions that benefit the Atlantic pigtoe include maintenance and
improvement of habitat, monitoring mussel populations, and improving
water quality. Additional elements of the management actions included
in the INRMP that will benefit Atlantic pigtoe and its habitat are
forest management, stream and wetland protection zones, and public
outreach and education.
Fourteen miles (22.5 km) of Unit 4 (CR1--Nottoway River Subbasin)
are located within the area covered by this INRMP. Based on the above
considerations, and in accordance with section 4(a)(3)(B)(i) of the
Act, we have determined that the identified streams are subject to the
Fort Pickett National Guard Training Center INRMP and that conservation
efforts identified in the INRMP will provide a benefit to the Atlantic
pigtoe. Therefore, streams within this installation are exempt from
critical habitat designation under section 4(a)(3) of the Act. We are
not including approximately 14 river miles (22.5 river km) of habitat
in this proposed critical habitat designation because of this
exemption.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if 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. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
As discussed below, we are not proposing to exclude any areas from
critical habitat. However, the final decision on whether to exclude any
areas will be based on the best scientific data available at the time
of the final designation, including information obtained during the
comment period and information about the economic impact of
designation.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate whether a specific critical habitat designation may
restrict or modify specific land uses or activities for the benefit of
the species and its habitat within the areas proposed. We then identify
which conservation efforts may be the result of the species being
listed under the Act versus those attributed solely to the designation
of critical habitat. The probable economic impact of a proposed
critical habitat designation is analyzed by comparing scenarios both
``with critical habitat'' and ``without critical habitat.'' The
``without critical habitat'' scenario represents the baseline for the
analysis, which includes the existing regulatory and socioeconomic
burden imposed on landowners, managers, or other resource users
potentially affected by the designation of critical habitat (e.g.,
under the Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
For this proposed designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts

[[Page 51587]]

that may result from this proposed designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the Atlantic pigtoe (IEc, 2018, entire). The purpose of the
screening analysis is to filter out the geographic areas in which the
critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. Ultimately, the screening analysis allows
us to focus our analysis on evaluating the specific areas or sectors
that may incur probable incremental economic impacts as a result of the
designation. This screening analysis, combined with the information
contained in our IEM, constitutes our draft economic analysis (DEA) of
the proposed critical habitat designation for the Atlantic pigtoe, and
is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the proposed critical habitat designation. In our March 19, 2018, IEM
describing probable incremental economic impacts that may result from
the proposed designation, we first identified probable incremental
economic impacts associated with each of the following categories of
activities: (1) Federal lands management (National Park Service, U.S.
Forest Service, Department of Defense); (2) agriculture; (3) forest
management/silviculture/timber; (4) development; (5) recreation; (6)
restoration activities; and (7) transportation. Additionally, we
considered whether the activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we list the species, as proposed
in this document, in areas where the Atlantic pigtoe is present, under
section 7 of the Act, Federal agencies would be required to consult
with the Service on activities they fund, permit, or implement that may
affect the species.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Atlantic pigtoe. Because the designation of critical habitat is being
proposed concurrently with the listing, it has been our experience that
it is more difficult to discern which conservation efforts are
attributable to the species being listed and those which would result
solely from the designation of critical habitat. However, the following
specific circumstances in this case help to inform our evaluation: (1)
The essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Atlantic pigtoe would also
likely adversely affect the essential physical or biological features
of critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Atlantic pigtoe
totals approximately 542 river miles (872 river km), all of which are
currently occupied by the species. In these areas, any actions that may
affect the species or its habitat would likely also affect proposed
critical habitat, and it is unlikely that any additional conservation
efforts would be required to address the adverse modification standard
over and above those recommended as necessary to avoid jeopardizing the
continued existence of the species. Therefore, the only additional
costs that are expected in all of the proposed critical habitat
designation are administrative costs, due to the fact that this
additional analysis will require time and resources by both the Federal
action agency and the Service. However, it is believed that, in most
circumstances, these costs would not reach the threshold of
``significant'' under E.O. 12866. We anticipate a maximum of 109
section 7 consultations annually at a total incremental cost of less
than $230,000 per year.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
required determinations. See ADDRESSES, above, for information on where
to send comments. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
public comment period. In particular, we may exclude an area from
critical habitat if we determine that the benefits of excluding the
area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.

Exclusions

Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. As discussed
above, we prepared an analysis of the probable economic impacts of the
proposed critical habitat designation and related factors. The
Secretary does not propose to exercise his discretion to exclude any
areas from the final designation based on economic impacts. However,
during the development of a final designation, we will consider any
additional economic impact information we receive during the public
comment period, which may result in areas being excluded from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts or Homeland Security
Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this proposal, we have
determined that, other than the land exempted under section
4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP,
the lands within the proposed

[[Page 51588]]

designation of critical habitat for the Atlantic pigtoe are not owned
or managed by the Department of Defense or Department of Homeland
Security, and, therefore, we anticipate no impact on national security.
Consequently, the Secretary does not propose to exercise his discretion
to exclude any areas from the final designation based on impacts on
national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether 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 proposal, we have determined that there are
currently no HCPs or other management plans for the Atlantic pigtoe,
and the proposed designation does not include any tribal lands or trust
resources. We anticipate no impact on tribal lands, partnerships, or
HCPs from this proposed critical habitat designation. Accordingly, the
Secretary does not propose to exercise his discretion to exclude any
areas from the final designation based on other relevant impacts.

Effects of Critical Habitat Designation

Section 7 Consultation
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. Section 7(a)(2) of the Act requires
Federal agencies, including the Service, to ensure that any action they
fund, authorize, or carry out is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of designated critical habitat
of such species. In addition, section 7(a)(4) of the Act requires
Federal agencies to confer with the Service on any agency action which
is likely to jeopardize the continued existence of any species proposed
to be listed under the Act or result in the destruction or adverse
modification of proposed critical habitat.
We published a final 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 or that involve some other
Federal action. Federal agency actions within the species' habitat that
may require conference or consultation or both include management and
any other landscape-altering activities on Federal lands administered
by the U.S. Fish and Wildlife Service, Army National Guard, U.S. Forest
Service, and National Park Service; issuance of section 404 Clean Water
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; and construction and maintenance of roads or highways by the
Federal Highway Administration. Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded or 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 Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 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 Atlantic pigtoe. Such alterations
may include, but are not limited to, those that alter the physical or
biological features essential to the conservation of the 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

[[Page 51589]]

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 Atlantic pigtoe. These activities include, but are
not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, water withdrawal, and
hydropower generation. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of the Atlantic
pigtoe and its fish host by decreasing or altering flows to levels that
would adversely affect their ability to complete their life cycles.
(2) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals (including pharmaceuticals, metals, and salts),
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 mussel or its host fish and
result in direct or cumulative adverse effects to these individuals and
their life cycles.
(3) 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 mussel and its fish host by increasing the sediment
deposition to levels that would adversely affect their ability to
complete their life cycles.
(4) Actions that would significantly increase the filamentous algal
community within the stream channel. Such activities could include, but
are not limited to, release of nutrients into the surface water or
connected groundwater at a point source or by dispersed release (non-
point source). These activities can result in excessive filamentous
algae filling streams and reducing habitat for the mussel and its fish
hosts, degrading water quality during their decay, and decreasing
oxygen levels at night from their respiration to levels below the
tolerances of the mussel and/or its fish host. Algae can also directly
compete with mussel offspring by covering the sediment that prevents
the glochidia from settling into the sediment.
(5) 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 mussel or its fish host and/or their habitats. These
actions can also lead to increased sedimentation and degradation in
water quality to levels that are beyond the tolerances of the mussel or
its fish host.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on the
Atlantic pigtoe. Possible actions could include, but are not limited
to, stocking of nonnative fishes, stocking of sport fish, or other
related actions. These activities can introduce parasites or disease
for host fish, and can result in direct predation, or affect the
growth, reproduction, and survival, of Atlantic pigtoes.

III. Proposed Rule Issued Under Section 4(d) of the Act

Background

The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to threatened wildlife.
Under section 4(d) of the Act, the Secretary has the discretion to
issue such regulations as he deems necessary and advisable to provide
for the conservation of threatened species. The Secretary also has the
discretion to prohibit, by regulation with respect to any threatened
species of fish or wildlife, any act prohibited under section 9(a)(1)
of the Act. The same prohibitions of section 9(a)(1) of the Act,
codified at 50 CFR 17.31, make it illegal for any person subject to the
jurisdiction of the United States to take (which includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to
attempt any of these) threatened wildlife within the United States or
on the high seas. In addition, it is unlawful to import; export;
deliver, receive, carry, transport, or ship in interstate or foreign
commerce in the course of commercial activity; or sell or offer for
sale in interstate or foreign commerce any listed species. It is also
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. To the extent the section
9(a)(1) prohibitions apply only to endangered species, this proposed
rule would apply those same prohibitions to the Atlantic pigtoe with
some exceptions.
In accordance with section 4(d) of the Act, the regulations
implementing the Act include a provision that generally applies to
threatened wildlife the same prohibitions and exceptions that apply to
endangered wildlife (50 CFR 17.31(a), 17.32). However, for any
threatened species, the Service may instead develop a protective
regulation that is specific to the conservation needs of that species.
Such a regulation would contain all of the protections applicable to
that species (50 CFR 17.31(c)); this may include some of the general
prohibitions and exceptions under 50 CFR 17.31 and 17.32, but would
also include species-specific protections that may be more or less
restrictive than the general provisions at 50 CFR 17.31.

Proposed 4(d) Rule for Atlantic Pigtoe

Under this proposed 4(d) rule, except as noted below, all
prohibitions and provisions of 50 CFR 17.31 and 17.32 would apply to
the Atlantic pigtoe:
(1) Species restoration efforts by State wildlife agencies,
including collection of broodstock, tissue collection for genetic
analysis, captive propagation, and subsequent stocking into currently
occupied and unoccupied areas within the historical range of the
species.
(2) Channel restoration projects that create natural, physically
stable, ecologically functioning streams (or stream and wetland
systems) that are reconnected with their groundwater aquifers. These
projects can be accomplished using a variety of methods, but the
desired outcome is a natural channel with low shear stress (force of
water moving against the channel); bank heights that enable
reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools comprised of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and

[[Page 51590]]

inclusion of riparian wetlands. Second- to third-order, headwater
streams reconstructed in this way would offer suitable habitats for the
Atlantic pigtoe and contain stable channel features, such as pools,
glides, runs, and riffles, which could be used by the species and its
host fish for spawning, rearing, growth, feeding, migration, and other
normal behaviors.
(3) Bank stabilization projects that use bioengineering methods to
replace pre-existing, bare, eroding stream banks with vegetated, stable
stream banks, thereby reducing bank erosion and instream sedimentation
and improving habitat conditions for the species. Following these
bioengineering methods, stream banks may be stabilized using live
stakes (live, vegetative cuttings inserted or tamped into the ground in
a manner that allows the stake to take root and grow), live fascines
(live branch cuttings, usually willows, bound together into long, cigar
shaped bundles), or brush layering (cuttings or branches of easily
rooted tree species layered between successive lifts of soil fill).
These methods would not include the sole use of quarried rock (rip-rap)
or the use of rock baskets or gabion structures.
(4) Silviculture practices and forest management activities that:
(a) Implement highest-standard best management practices,
particularly for Streamside Management Zones, stream crossings, and
forest roads; and
(b) Comply with forest practice guidelines related to water quality
standards, or comply with Sustainable Forestry Initiative/Forest
Stewardship Council/American Tree Farm System certification standards
for both forest management and responsible fiber sourcing.
These BMPs are publicly available on websites for these
organizations, and can currently be found below:

https://www.ncasi.org/Downloads/Download.ashx?id=10204
https://reports.oah.state.nc.us/
https://us.fsc.org/download.fsc-us-forest-management-standard-v1-0.95.htm
https://www.treefarmsystem.org/certification-american-tree-farm-standards

These actions and activities may have some minimal level of
mortality, harm, or disturbance to the Atlantic pigtoe, but are not
expected to adversely affect the species' conservation and recovery
efforts. In fact, we expect they would have a net beneficial effect on
the species. Across the species' range, instream habitats have been
degraded physically by sedimentation and by direct channel disturbance.
The activities proposed in this rule will correct some of these
problems, creating more favorable habitat conditions for the species.
These provisions are necessary because, absent protections, the species
is likely to become in danger of extinction in the foreseeable future.
Additionally, these provisions are advisable because the species needs
active conservation to improve the quality of its habitat. By exempting
some of the general prohibitions of 50 CFR 17.31 and 17.32, these
provisions can encourage cooperation by landowners and other affected
parties in implementing conservation measures. This will allow for use
of the land while at the same time ensuring the preservation of
suitable habitat and minimizing impact on the species.
We may issue permits to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.32. With regard to
threatened wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance propagation or survival, for
economic hardship, for zoological exhibition, for educational purposes,
for incidental taking, or for special purposes consistent with the
purposes of the Act. There are also certain statutory exemptions from
the prohibitions, which are found in sections 9 and 10 of the Act.

IV. Required Determinations

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

Executive Order 13771

This proposed rule is not an Executive Order (E.O.) 13771
(``Reducing Regulation and Controlling Regulatory Costs'') (82 FR 9339,
February 3, 2017) regulatory action because this rule is not
significant under E.O. 12866.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs 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

[[Page 51591]]

small organizations such as independent nonprofit organizations; small
governmental jurisdictions, including school boards and city and town
governments that serve fewer than 50,000 residents; and small
businesses (13 CFR 121.201). Small businesses include manufacturing and
mining concerns with fewer than 500 employees, wholesale trade entities
with fewer than 100 employees, retail and service businesses with less
than $5 million in annual sales, general and heavy construction
businesses with less than $27.5 million in annual business, special
trade contractors doing less than $11.5 million in annual business, and
agricultural businesses with annual sales less than $750,000. To
determine if potential economic impacts to these small entities are
significant, we considered the types of activities that might trigger
regulatory impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and, therefore, are 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 would be directly regulated if we adopt the proposed
critical habitat designation. There is no requirement under RFA to
evaluate the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities would be directly regulated by this rulemaking, the
Service certifies that, if promulgated, the proposed critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.

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

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this proposed critical habitat will 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 proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While 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 proposed rule would significantly
or uniquely affect small governments because the lands being proposed
for critical habitat designation are owned by the States of Virginia
and North Carolina. These government entities do not fit the definition
of ``small governmental jurisdiction.'' Therefore, a Small Government
Agency Plan is not required.

Takings--Executive Order 12630

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

[[Page 51592]]

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, if adopted, this designation of critical habitat for
Atlantic pigtoe does not pose significant takings implications for
lands within or affected by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in Virginia, North Carolina,
South Carolina, and Georgia. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary 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 requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
areas of designated critical habitat are presented on maps, and the
proposed rule provides several options for the interested public to
obtain more detailed location information, if desired.

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

This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

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

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA), need not be prepared in connection
with listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
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 NEPA 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. There are no tribal lands in the
proposed critical habitat designation.
Authors
The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service Species Assessment Team and Raleigh
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec. 17.11 paragraph (h) by adding an entry for ``Pigtoe,
Atlantic'' to the ``List of Endangered and Threatened Wildlife'' in
alphabetical order under CLAMS to read as set forth below:

[[Page 51593]]

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

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

* * * * * * *
Clams

* * * * * * *
Pigtoe, Atlantic.............. Fusconaia masoni Wherever found.. T [Federal Register citation when
published as a final rule]; 50
CFR 17.45(a)4d; 50 CFR
17.95(f)CH.

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

0
3. Amend Sec. 17.45 to read as set forth below:

Sec. 17.45 Special rules--snails and clams.

(a) Atlantic pigtoe (Fusconaia masoni).
(1) Prohibitions. Except as noted in paragraph (a)(2) of this
section, all prohibitions and provisions of Sec. Sec. 17.31 and 17.32
apply to the Atlantic pigtoe.
(2) Exceptions from prohibitions. Incidental take of the Atlantic
pigtoe will not be considered a violation of the Act if the take
results from any of the following activities:
(i) Species restoration efforts by State wildlife agencies,
including collection of broodstock, tissue collection for genetic
analysis, captive propagation, and subsequent stocking into currently
occupied and unoccupied areas within the historical range of the
species.
(ii) Channel restoration projects that create natural, physically
stable, ecologically functioning streams (or stream and wetland
systems) that are reconnected with their groundwater aquifers. These
projects can be accomplished using a variety of methods, but the
desired outcome is a natural channel with low shear stress (force of
water moving against the channel); bank heights that enable
reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools comprised of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands. Second- to third-
order, headwater streams reconstructed in this way would offer suitable
habitats for the Atlantic pigtoe and contain stable channel features,
such as pools, glides, runs, and riffles, which could be used by the
species and its host fish for spawning, rearing, growth, feeding,
migration, and other normal behaviors.
(iii) Bank stabilization projects that use bioengineering methods
to replace pre-existing, bare, eroding stream banks with vegetated,
stable stream banks, thereby reducing bank erosion and instream
sedimentation and improving habitat conditions for the species.
Following these bioengineering methods, stream banks may be stabilized
using live stakes (live, vegetative cuttings inserted or tamped into
the ground in a manner that allows the stake to take root and grow),
live fascines (live branch cuttings, usually willows, bound together
into long, cigar shaped bundles), or brush layering (cuttings or
branches of easily rooted tree species layered between successive lifts
of soil fill). These methods would not include the sole use of quarried
rock (rip-rap) or the use of rock baskets or gabion structures.
(iv) Silviculture practices and forest management activities that:
(A) Implement highest-standard best management practices,
particularly for Streamside Management Zones, stream crossings, and
forest roads; and
(B) Comply with forest practice guidelines related to water quality
standards, or comply with Sustainable Forestry Initiative/Forest
Stewardship Council/American Tree Farm System certification standards
for both forest management and responsible fiber sourcing.
(b) [Reserved]
0
4. Amend Sec. 17.95 paragraph (f) by adding, immediately following the
entry for ``Rabbitsfoot (Quadrilla cylindrica cylindrica),'' an entry
for ``Atlantic Pigtoe (Fusconaia masoni)'' to read as set forth below:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(f) Clams and Snails.
* * * * *
Atlantic Pigtoe (Fusconaia masoni)
(1) Critical habitat units are depicted for Craig, Botecourt, Bath,
Fluvanna, Buckingham, Nottoway, Lunenburg, Brunswick, Dinwiddie,
Greensville, and Pittsylvania Counties, Virginia; and Rockingham,
Granville, Mecklenburg, Halifax, Vance, Franklin, Nash, Warren,
Leggett, Edgecombe, Person, Durham, Wake, Johnston, Orange, Randolph,
and Montgomery Counties, North Carolina, on the maps below.
(2) Within these areas, the physical or biological features
essential to the conservation of Atlantic pigtoe consist of the
following components:
(i) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater mussel
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(ii) Adequate flows, or a hydrologic flow regime (which includes
the severity, frequency, duration, and seasonality of discharge over
time), necessary to maintain benthic habitats where the species is
found and to maintain connectivity of streams with the floodplain,
allowing the exchange of nutrients and sediment for maintenance of the
mussel's and fish host's habitat, food availability, spawning habitat
for native fishes, and the ability for newly transformed juveniles to
settle and become established in their habitats.
(iii) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(iv) The presence and abundance of fish hosts necessary for
recruitment of the Atlantic pigtoe.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they

[[Page 51594]]

are located existing within the legal boundaries on the effective date
of this rule.
(4) Critical habitat map units. Data layers defining map units were
created by overlaying Natural Heritage Element Occurrence data and U.S.
Geological Survey (USGS) hydrologic data for stream reaches. The
hydrologic data used in the critical habitat maps were extracted from
the USGS 1:1M scale nationwide hydrologic layer (https://nationalmap.gov/small_scale/mld/1nethyd.html) with a projection of
EPSG:4269--NAD83 Geographic. The North Carolina and Virginia Natural
Heritage program species presence data were used to select specific
stream segments for inclusion in the critical habitat layer. 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 https://www.regulations.gov under Docket No.
FWS-R4-ES-2018-0046 and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP11OC18.005

(6) Map of Unit JR1--Craig Creek follows:

[[Page 51595]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.006

(7) Map of Unit JR2--Mill Creek follows:
[GRAPHIC] [TIFF OMITTED] TP11OC18.007

[[Page 51596]]

(8) Map of Unit JR3--Middle James River follows:
[GRAPHIC] [TIFF OMITTED] TP11OC18.008

(9) Map of Unit CR1--Nottoway River Subbasin follows:

[[Page 51597]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.009

(10) Map of Unit CR2--Meherrin River follows:

[[Page 51598]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.010

(11) Map of Unit RR1--Dan River follows:

[[Page 51599]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.011

(12) Map of Unit RR2--Aarons Creek follows:

[[Page 51600]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.012

(13) Map of Unit TR1--Upper/Middle Tar River follows:

[[Page 51601]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.013

(14) Map of Unit TR2--Sandy/Swift Creek follows:

[[Page 51602]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.014

(15) Map of Unit TR3--Fishing Creek Subbasin follows:

[[Page 51603]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.015

(16) Map of Unit TR4--Lower Tar River follows:

[[Page 51604]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.016

(17) Map of Unit NR1--Upper Neuse River Subbasin follows:

[[Page 51605]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.017

(18) Map of Unit NR2--Middle Neuse River follows:

[[Page 51606]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.018

(19) Map of Unit CF1--New Hope Creek follows:

[[Page 51607]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.019

(20) Map of Unit CF2--Deep River follows:

[[Page 51608]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.020

(21) Map of Unit YR1-- Little River follows:

[[Page 51609]]

[GRAPHIC] [TIFF OMITTED] TP11OC18.021

* * * * *

Dated: September 20, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-21798 Filed 10-10-18; 8:45 am]
BILLING CODE 4333-15-C

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