Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog and Endangered Species Status for Carolina Madtom and Proposed Designations of Critical Habitat, 23644-23691 [2019-10379]

Download as PDF 23644 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules DEPARTMENT OF THE INTERIOR shown in FOR FURTHER INFORMATION by July 8, 2019. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R4–ES–2018–0092, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rules 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– 0092, 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 http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, 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 http:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0092, 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 http://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: CONTACT Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2018–0092; 4500030113] RIN 1018–BC28 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog and Endangered Species Status for Carolina Madtom and Proposed Designations of Critical Habitat AGENCY: Fish and Wildlife Service, Interior. Proposed rule. ACTION: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list two North Carolina species, the Neuse River waterdog (Necturus lewisi) and the Carolina madtom (Noturus furiosus), as endangered or threatened under the Endangered Species Act of 1973, as amended (Act). The Neuse River waterdog is an aquatic salamander. The Carolina madtom is a freshwater fish. After review of the best available scientific and commercial information, we find that listing both species is warranted. Accordingly, we propose to list the Neuse River waterdog as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’) and the Carolina madtom as an endangered species under the Act. If we finalize this rule as proposed, it would add these species to the List of Endangered and Threatened Wildlife and extend the Act’s protections to both species. We also propose to designate critical habitat for both species under the Act. In total, approximately 738 river miles (1,188 river kilometers) in 16 units in North Carolina fall within the boundaries of the proposed critical habitat designation for the Neuse River waterdog. Approximately 257 river miles (414 river kilometers) in 7 units in North Carolina are being proposed as critical habitat for the Carolina madtom. Finally, we announce the availability of a draft economic analysis of the proposed critical habitat designations. DATES: We will accept comments received or postmarked on or before July 22, 2019. 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 jbell on DSK3GLQ082PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Supporting Documents A species status assessment (SSA) team prepared SSA reports for the Neuse River waterdog and the Carolina madtom. The SSA team was composed of Service and North Carolina Wildlife Resources Commission biologists, in consultation with other species experts. The SSA reports represent a compilation of the best scientific and PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting each species. Both SSA reports underwent independent peer review by scientists with expertise in fish or amphibian biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA reports and other materials relating to this proposal can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS–R4–ES–2018–0092. 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. What this document does. We propose the listing of the Neuse River waterdog as a threatened species with a rule under section 4(d) of the Act and the Carolina madtom as an endangered species under the Act, and we propose the designation of critical habitat for both species. 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 both species. 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 E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules the effects of climate change (Factor E). There are no existing regulatory mechanisms that are adequate to reduce these threats so that the species does not warrant listing (Factor D). Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the extent prudent and determinable. Section 4(b)(2) of the Act states that the Secretary will make the designation on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Section 3(5) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed if such areas are essential to the conservation of the species. 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 13 appropriate specialists regarding the SSA reports, which informed this proposed rule. The purpose of peer review is to ensure that the science behind our listing determinations, the critical habitat designations, and 4(d) rule are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and stressors to the species. Information Requested jbell on DSK3GLQ082PROD with PROPOSALS2 Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The species’ biology, range, and population trends, including: (a) Biological or ecological requirements of these species, including VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 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 these species, their habitats, 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 these 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 these species, including the locations of any additional populations of either species. (5) Information on activities that are necessary and advisable for the conservation of the Neuse River waterdog 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. (a) Additional provisions the Service may wish to consider for a 4(d) rule in order to conserve, recover, and manage the Neuse River waterdog, such as the best management practices used in agriculture. (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 Neuse River waterdog or Carolina madtom 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 23645 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. (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. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via http:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot E:\FR\FM\22MYP2.SGM 22MYP2 23646 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Public Hearing Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified above in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. Previous Federal Actions On April 20, 2010, we received a petition from Center for Biological Diversity and others to list 404 aquatic species in the southeastern United States, including the Neuse River waterdog and the Carolina madtom. In response to the petition, we completed a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we stated that the petition contained substantial information that listing may be warranted for both species. We conducted a status review for each species. This proposed listing rule also constitutes our 12-month petition findings for the two species. I. Proposed Listing Determination Background jbell on DSK3GLQ082PROD with PROPOSALS2 Neuse River Waterdog A thorough review of the taxonomy, life history, and ecology of the Neuse River waterdog (Necturus lewisi) is presented in the SSA Report Version 1.1. The Neuse River waterdog is a permanently aquatic salamander species endemic to the Tar-Pamlico and Neuse River drainages in North Carolina. The species occurs in riffles, runs, and pools in medium to large streams and rivers with moderate gradient in both the Piedmont and Coastal Plain physiographic regions. Neuse River waterdogs are from an ancient lineage of permanently aquatic salamanders in the VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 genus Necturus, one of three species of Necturus in North Carolina. Neuse River waterdogs have a reddish brown skin with black spots, reaching up to 9 inches (in) in length as adults. Their underside is brownish grey, and they have external bushy dark red gills. They eat large aquatic arthropods, any aquatic and terrestrial invertebrates, and even some vertebrates like small fish. Like most waterdogs, they are opportunistic feeders who lie in wait for a small organism to swim or float by. All prey are ingested whole, and larger items are sometimes regurgitated and then re-swallowed. Neuse River waterdogs are found in streams ranging from larger headwater streams in the Piedmont to coastal streams up to the point of saltwater intrusion. None have been found in lakes or ponds. They are usually found in streams wider than 15 meters (m), deeper than 100 centimeters (cm), and with a main channel flow rate greater than 10cm/second. Further, they need clean, flowing water characterized by high dissolved oxygen concentrations. The preferred habitats vary with the season, temperature, dissolved oxygen content, flow rate and precipitation; however, the waterdogs maintain home retreat areas under rocks, in burrows, or under substantial cover in backwater or eddy areas. Longevity of Neuse River waterdogs is not known; however, their close relative N. maculosus may live for 30+ years. Like many long-lived animals, breeding is delayed until a minimum body size is reached and they tend to grow slowly. Generation time for Neuse River waterdogs is 10–15 years. They breed once per year, with mating in the fall or winter and spawning in the spring. Females lay a clutch of about 25–90 eggs under large rocks with sand and gravel beneath them and then guard the rudimentary nest. Carolina Madtom A thorough review of the taxonomy, life history, and ecology of the Carolina madtom (Noturus furiosus) is presented in the SSA Report. The Carolina madtom is a moderatesized catfish with a short, chunky body and a distinct color pattern of three dark saddles and a wide black stripe along its side. Furiosus means ‘‘mad’’ or ‘‘raging,’’ as the Carolina madtom is the most strongly armed of the North American catfishes with stinging spines containing a potent poison in their pectoral fins. They are found in medium to large flowing streams of moderate gradient in both the Piedmont and Coastal Plain physiographic regions in the Neuse and Tar River basins. Suitable PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 instream habitats are described as riffles, runs, and pools with current, and during the warm months the madtoms are found in or near swift current at depths of 1 to 3 feet (.3 to .9 meters). Stream bottom substrate composition is important for benthic Carolina madtoms; leaf litter, sand, gravel, and small cobble are all common substrates associated with the species, although it is most often found over sand mixed with pea-sized gravel and leaf litter. During the breeding season, Carolina madtoms shift to areas of moderate to slow flow with abundant cover used for nesting. The nesting season extends from about mid-May to late July. Nest sites are often found under or in relic freshwater mussel shells, under large pieces of water-logged tree bark, or in discarded beverage bottles and cans partially buried on the stream bottom. The female produces about 80 to 300 eggs, and the male guards the nest until the eggs hatch. Clutch sizes average 152 larvae, and life expectancy for these fish is at least 4 years. The Carolina madtom is a bottomdwelling insectivore that feeds primarily during the night, with peaks at dawn and dusk. More than 95 percent of the food organisms in the Carolina madtom stomachs were larval midges, mayflies, caddisflies, dragonflies, and beetle larvae (Burr et al. 1989, p. 78). Summary of Biological Status and Threats Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations in title 50 of the Code of Federal 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. E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules 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 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. The SSA reports document the results of our comprehensive biological status review for each species, including an VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 assessment of the potential stressors to the species. They do 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. They do, however, provide the scientific basis that informs our regulatory decisions, 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 reports; the full SSA reports can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS–R4–ES–2018–0092. Summary of Analysis To assess Neuse River waterdog and Carolina madtom viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, the 3 Rs) (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); representation supports the ability of the species to adapt over time to longterm changes in the environment (for example, climate changes); and redundancy supports 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 species’ life-history needs. The next stage involved an assessment of the historical and current condition of the species’ demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species’ responses to positive PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 23647 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 utilize this information to inform our regulatory decision. Neuse River Waterdog To evaluate the current and future viability of the Neuse River waterdog, we assessed a range of conditions to allow us to consider the species’ resiliency, representation, and redundancy. For the purposes of this assessment, populations were delineated using the three river basins that Neuse River waterdogs have historically occupied (i.e., Tar-Pamlico, Neuse, and Trent River basins). Because the river basin level is at a very coarse scale, populations were further delineated using Management Units (MUs). MUs were defined as one or more HUC10 (hydrologic unit code) watersheds that species experts identified as most appropriate for assessing population-level resiliency. To assess resiliency, we analyzed MU occupancy over time and site occupancy over time (‘‘population factors’’) as well as four habitat elements that were determined in our analysis of the species’ needs to have the most influence on the species: Water quality, water quantity, substrate, and habitat connectivity (‘‘habitat elements’’). We then assessed the overall condition of each population. Overall population condition rankings were determined by combining the two population factors and four habitat elements. For a more detailed explanation of the condition categories, see Table 1, below. Representation for the Neuse River waterdog can be described in terms of the size and range of the river systems it inhabits (medium streams to large rivers in three river basins), and physiographic variability (Piedmont and Coastal Plain). High redundancy for Neuse River waterdog is defined as multiple resilient populations (inclusive of multiple, resilient MUs) distributed throughout the species’ historical range. That is, highly resilient populations, coupled with a relatively broad distribution, have a positive relationship to species-level redundancy. E:\FR\FM\22MYP2.SGM 22MYP2 23648 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules TABLE 1—POPULATION AND HABITAT CHARACTERISTICS USED TO CREATE CONDITION CATEGORIES FOR RESILIENCY ASSESSMENT FOR NEUSE RIVER WATERDOG [MU = Management Unit; HUC10 = hydrologic unit code; ARA = active river area] Population factors Habitat elements Condition category jbell on DSK3GLQ082PROD with PROPOSALS2 MU occupancy Site occupancy Water quality Water quantity Connectivity Instream habitat (substrate) Very little (if any) known habitat fragmentation issues (<10 dams per MU; avg # of Road Crossings <300 per MU). Some habitat fragmentation issues (10–30 dams per MU; Avg # of Road Crossings 300–500 per MU). Habitat severely fragmented (30+ dams in MU; 500+ Avg Road Crossings per MU). Habitat extremely fragmented and unable to support species survival. N/A ....................... Predominantly natural (>70% forested) ARA; <6% impervious surfaces in HUC10 watershed. High ................................... <10% decline or a positive increase in occupied HUC10s over time. <10% decline in site occupancy over time. Very few (if any) known impairment or contaminant problems (<5 miles impaired streams; no major discharges, <10 non-major discharges). Optimal flowing water conditions to remove fine sediments, allow for food delivery, and maximize reproduction; no known flow issues; isolated low flow/drought periods; not flashy flow regime. Moderate ........................... 11–30% decline in occupied HUC10s over time. 11–30% decline in site occupancy over time. Impairment or contaminants known to be an issue, but not at a level to put population at risk of being eliminated (5–50 miles impaired streams; 1–3 major discharges; 10–25 non-major discharges. Low ................................... 31–70% decline in occupied HUC10s over time. 31–70% decline in site occupancy over time. Very Low ........................... >70% decline in occupied HUC10s over time. >70% decline in site occupancy over time. Impairment or contaminants at levels high enough to put the population at risk of being eliminated (>50 miles impaired streams; >4 major discharges; 25+ non-major discharges). Impairment or contaminant at levels that cannot support species survival. Water flow not sufficient to consistently remove fine sediments, drying conditions which could impact both food delivery and successful reproduction; moderate flow issues, including 3 to 4 years of consecutive drought or moderately flashy flows. Water not flowing—either inundated or dry; severe flow issues; more than 4 consecutive years of drought; flashy flow regime. Total Loss ............ Total Loss ............ N/A ...................................................... Current Condition of Neuse River Waterdog The historical range of the Neuse River waterdog included 3rd and 4th order streams and rivers in the Tar, Neuse, and Trent drainages (basins), with documented historical distribution in 40 HUC10s in 9 MUs across the 3 populations. Currently, the Neuse River waterdog is extant in all nine identified MUs; however, within those MUs, it is presumed extirpated from 35 percent (14/40) of the historically occupied HUC10s, and another 25 percent of the streams are in low or very low condition. Of the nine occupied MUs, two (22%) are estimated to have high resiliency, three (33%) moderate resiliency, and four (45%) low resiliency. At the population level, one of three populations (Tar) is estimated to have moderate resiliency, and two (Neuse and Trent) are estimated to have low resiliency. We estimated that the Neuse River waterdog currently has moderate adaptive potential, primarily due to ecological representation in three river basins and two physiographic regions. The species retains nearly all of its known River Basin variability; however, the variability within the basins is reduced compared to historical distribution. In addition, compared to historical occupancy, the species currently retains moderate Physiographic Variability in the Coastal Plain (87%) and in the Piedmont (67%). However, the Piedmont has experienced significant declines in occupancy, with VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Flow conditions do no support species survival. N/A ...................................................... nearly half of the MUs losing species occurrence. Of the 16 historically occupied Piedmont HUC10s, 7 are no longer occupied, and 9 have experienced loss. The range of the Neuse River waterdog has always been very narrow, limited to the Tar, Trent, and Neuse River drainages. Within the identified representation areas (i.e., river basins), the species retains redundancy in terms of occupied HUC10s within the Tar River population (82%) and the Neuse River population (70%), although 67 percent of redundancy has been lost in the Trent River population. Overall, the species has lost 27 percent (11 out of 40 historically occupied HUC10s) of its redundancy across its narrow, endemic range. Carolina Madtom To evaluate the current and future viability of the Carolina madtom, we assessed a similar range of conditions as described above for Neuse River waterdog to allow us to consider the species’ resiliency, representation, and redundancy. We assessed resiliency for the Carolina madtom using population factors (MU occupancy over time, approximate abundance, and recruitment) and habitat elements (water quality, water quantity, habitat connectivity, and instream substrate). Populations were delineated using the same three river basins that Carolina madtoms have historically occupied, namely the Tar-Pamlico, Neuse, and Trent River basins. As with the PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 20–70% forested ARA; 6–15% impervious surfaces in HUC10 watershed. <20% forested ARA; >15% impervious surfaces in HUC10 watershed. Instream habitat unable to support species survival. N/A. waterdog, populations were further delineated using MUs, again defined as one or more HUC10 watersheds that species experts identified as the most appropriate unit for assessing population-level resiliency. Resiliency is characterized, and overall population condition rankings and habitat condition rankings were determined, in the same way as for the waterdog. Representation for the Carolina madtom can be described in terms of River Basin Variability (Tar, Trent, and Neuse River basins) and Physiographic Variability (eastern Piedmont and Coastal Plain). We assessed Carolina madtom redundancy by first evaluating occupancy within each of the hydrologic units (i.e., HUC10s) that constitute MUs, and then we evaluated occupancy at the MU and ultimately the population level. Current Condition of Carolina Madtom The historical range of the Carolina madtom included three populations, one in each of the same three river basins in North Carolina as the Neuse River waterdog. The results of surveys conducted from 2011 to 2016 suggest that the currently occupied range of the Carolina madtom includes four MUs from two populations, corresponding to the Tar and Neuse River basins; however, only one population (Tar) has multiple documented occurrences within the past 5 years. The species has been extirpated from the southern portion of its range, including a large portion of the Neuse River basin and the E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules entire Trent River basin. The Carolina madtom currently occupies 8 of the 31 historically occupied HUC10s (with ‘‘currently’’ defined as the observation of at least one specimen from 2011 to 2016), 7 of which are in the Tar River Basin and 1 in the Neuse River Basin. At the population level, the overall current condition (= resiliency) was estimated to be moderate for the Tar population, very low for the Neuse population, and likely extirpated for the Trent population. We estimated that the Carolina madtom currently has low adaptive potential due to limited representation in two river basins and two physiographic regions. The species retains 33 percent of its known River Basin variability, considering greatly reduced variability observed in the Neuse River population. In addition, compared to historical occupancy, the species currently retains very limited physiographic variability in the Coastal Plain (14%) and moderate variability in the Piedmont (56%). The range of the Carolina madtom has always been very narrow, limited to the Tar, Trent, and Neuse River drainages. Within the identified representation areas, the species retains redundancy within the Tar River population (3 MUs currently extant); however, it has no redundancy (only 1 MU extant in the Neuse River population and no redundancy (extirpated) in the Trent River population. Overall, the species has lost 64 percent of its redundancy across its narrow, endemic range. jbell on DSK3GLQ082PROD with PROPOSALS2 Risk Factors for Neuse River Waterdog and Carolina Madtom A multitude of natural and anthropogenic factors may impact the status of species within aquatic systems. 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 Neuse River waterdog and Carolina madtom involve habitat degradation from stressors influencing the four habitat elements: Water quality, water quantity, instream habitat, and habitat connectivity. All of these factors are exacerbated by the effects of climate change. 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 for each species. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Environmental Stressors Development and Pollution 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 stream-side) (Service 2018, p. 40). Urbanization increases the amount of impervious surfaces. ‘‘Impervious surface’’ refers to all hard surfaces like paved roads, parking lots, roofs, and even highly compacted soils like sports fields. Impervious surfaces prevent the natural soaking of rainwater into the ground and slow seepage into streams. Instead, the rainwater accumulates and flows rapidly into storm drains, which drain as runoff to local streams. This degrades stream habitat in three ways: Water quantity (high flow during storms), water quality (pollutants washing into streams), and increased water temperatures due to the surfaces heating the water. 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. 1,311). Water infrastructure development, including water supply, reclamation, and wastewater treatment, results in several pollution point discharges to streams. A major result of urbanization is road development. By its nature, road development increases impervious surfaces as well as land clearing and habitat fragmentation. Roads are generally associated with negative effects on the biotic integrity of aquatic ecosystems, including changes in surface water temperatures and patterns of runoff; sedimentation; and adding heavy metals (especially lead), salts, organics, ozone, and nutrients to stream systems (Trombulak and Frissell 2000, p. 18). These changes affect streamdwelling organisms such as the Carolina madtom and Neuse River waterdog by displacing them from once-preferred habitats, as well as increasing exposure and assimilation of pollutants that can result in growth defects, decreased immune response, and even death. In addition, a possible major impact of road development is improperly constructed culverts at stream crossings. These culverts act as barriers, either because flow through the culvert varies significantly from the rest of the stream PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 23649 or because the culvert ends up being perched, so that aquatic organisms such as these species cannot pass through them. Carolina madtoms prefer clean water with permanent flow and are not tolerant of siltation and turbidity. Benthic fish, such as the madtom, have disproportionate rates of imperilment and extirpation due to pollution because stream bottoms are often the first habitats affected. Furthermore, the Carolina madtom is classified as an ‘‘intolerant’’ species according to the NC Division of Water Resources, meaning the species is most affected by environmental perturbations (NCDWR 2013, p. 19). All three of the river basins within the range of the Carolina madtom are affected by development, from an average of 7 percent in the Tar River Basin to an average of 13 percent in the Neuse River Basin (based on the 2011 National Land Cover Data). For example, the Neuse River Basin contains one-sixth of the entire State’s human population, indicating heavy development pressure on the watershed. The Middle Neuse MU contains 182 impaired stream miles, 9 major discharges, 272 minor discharges, and nearly 4,000 road crossings, all affecting the quality of the habitat for both species. The Middle Neuse is also 31 percent developed, with nearly 8 percent impervious surface, which changes natural streamflow, reduces appropriate stream habitat, and decreases water quality throughout the MU. For complete data on all of the populations, refer to appendices A and D of the SSA reports. Agricultural Practices: The main impacts to the Neuse River waterdog and Carolina madtom from agricultural practices, not following best management practices (BMPs) for conservation, are caused by nutrient and chemical pollution and by 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. 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 or groundwater. Confined animal feeding operations and feedlots can cause degradation of aquatic ecosystems, primarily because of manure management issues. Fertilized soils, manure, and livestock can be significant sources of nitrogen-based compounds like ammonia and nitrogen oxides. Ammonia can be harmful to aquatic life if large amounts are E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 23650 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules deposited to surface waters. For fish like the Carolina madtom, excess ammonia can cause a number of problems, including alteration of metabolism, injury to gill tissue, and reduced growth rates. Extreme levels of ammonia can cause death. Excessive water withdrawal or water withdrawal done illegally (without the necessary permit, during dry times of year), may cause impacts to the amount of water available to downstream sensitive areas during low flow months, resulting in dewatering of channels and displacement of fish and aquatic salamanders, leading in turn to desiccation and death. According to the 2011 National Land Cover Data, all of the watersheds within the range of the Carolina madtom and Neuse River waterdog are affected by agricultural land uses, most with 25 percent or more of the watershed having been converted for agricultural use. Forest Management: Silvicultural activities, when performed according to strict forest practices guidelines (FPGs) or 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, including North Carolina. Both small- and largescale forestry activities have been shown to have a significant impact upon the physical, chemical, and biological characteristics of adjacent small streams (Service 2018, p. 41). The clearing of large areas of forested wetlands and riparian systems can eliminate shade provided by forest canopies, exposing streams to more sunlight and increasing the in-stream water temperature. The increase in stream temperature and light after deforestation alters the macroinvertebrate and other aquatic species richness and abundance composition in streams. As stated above, both the Neuse River waterdog and Carolina madtom are sensitive to changes in temperature, and sustained temperature increases will stress and possibly lead to mortality for these species. Forestry activities often include the construction of logging roads through the riparian zone, and this can directly degrade nearby stream environments. Roads can cause point-source pollution and sedimentation, as well as sedimentation traveling downstream into more sensitive habitats. These effects lead to stress and mortality for both species, as discussed in ‘‘Development,’’ above. While BMPs are widely adhered to, they were not always common practice. The most recent surveys of Southeastern U.S. States VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 show that the average implementation rate is at 92 percent, so while improper implementation is rare, it can have drastic negative effects on sensitive aquatic species. Further, many forestry activities do not require a permit for wetland or stream fill. Systematic Changes Climate Change: Aquatic systems are encountering changes and shifts in seasonal patterns of precipitation and runoff as a result of climate change. While both of these species have evolved in habitats that experience seasonal fluctuations in discharge, global weather patterns (e.g., El Nin˜o or La Nin˜a) can have an impact on the normal regimes. Even during naturally occurring low flow events, amphibians and fish either become stressed because they exert significant energy to move to deeper waters or they may succumb to desiccation. Because low flows in late summer and early fall are stressinducing, droughts during this time of year result in an increase in stress and, potentially, an increased rate of mortality. Droughts have impacted all river basins within the range of both species, from an ‘‘abnormally dry’’ ranking for North Carolina in 2001 on the Southeast Drought Monitor scale to the highest ranking of ‘‘exceptionally dry’’ for the entire range of both species in 2002 and 2007. The 2015 drought data indicated that the entire Southeast was under conditions ranging from ‘‘abnormally dry’’ to ‘‘moderate drought’’ or ‘‘severe drought.’’ These data are from the first week in September, which as noted above is a very sensitive time for drought to be affecting both species. The Middle Neuse tributaries of the Neuse River basin had consecutive drought years in the period 2005–2012, indicating sustained stress on the species over a long period of time. Amphibians and fish have limited refugia from disturbances such as 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 for both species. Increases in the frequency and strength of storm events, which are caused by climate change, alter stream habitat, either directly via channelization or clearing of riparian areas or indirectly via high streamflows 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, PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 displace, or kill Neuse River waterdogs and Carolina madtoms, as well as the host species on which the latter depend. Invasive Species: There are many areas across North Carolina where invasive species have invaded aquatic communities; are competing with native species for food, light, or breeding and nesting areas; and are impacting biodiversity. The flathead catfish is an invasive species that may have an impact on Neuse River waterdog and Carolina madtom distribution. The flathead catfish is an apex predator, known to influence native fish populations, including predation on benthic fishes, including madtoms, and it occurs in both the Neuse and Tar River basins. It is not known whether or not this fish also preys on waterdogs, but it is speculated that Neuse River waterdog inactivity during warmer months is in part due to the avoidance of large, predatory fishes (Braswell 2005, p. 870). Hydrilla (Hydrilla verticillata), an invasive aquatic plant, alters stream habitat, decreases flows, and contributes to sediment buildup in streams (NCANSMPC 2015, p. 57). High sedimentation can cause suffocation and reduce stream flow necessary for madtom survival. Hydrilla occurs in several watersheds where both species occur, and has been recently documented from the Neuse system and the Tar River. While there are no data to indicate that hydrilla currently has population-level effects on these two species, its spread is expected to increase in the future. Dams and Barriers: Extinction of some North American freshwater fish can 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 fish and aquatic salamanders 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 aquatic species. Dams have also been identified as causing genetic segregation or isolation in river systems—resident fish can no longer move freely through different habitats and may become genetically isolated from other fish populations throughout the river. Even E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules improperly constructed culverts at stream crossings can act as significant barriers, and have some similar effects as dams on stream systems. Fluctuating flows through the culvert can vary significantly from the rest of the stream, preventing fish passage and scouring downstream habitats. If a culvert ends up being perched above the stream bed, aquatic organisms cannot pass through it. All of the MUs containing Neuse River waterdogs and Carolina madtom populations have been impacted by dams, with as few as 11 dams in the Contentnea Creek MU to 287 dams in the Middle Neuse MU. Energy Production and Mining: The Neuse River waterdog and its habitat face impacts from oil and gas production, coal power, hydropower, and the use of biofuels. Coal mined from other States is used for energy production in North Carolina. Damage to fish and wildlife from exposure to coal ash slurry ranges from physiological, developmental, and behavioral toxicity to major populationand community-level changes. Coalcombustion residue contamination of aquatic habitats can result in the accumulation of metals and trace elements in larval amphibians, including arsenic, cadmium, chromium, copper, mercury, lead, selenium, and vanadium, potentially leading to developmental, behavioral, and physiological effects (Rowe et al. 2002, entire). As recently as October 2016, Neuse River waterdogs in the Neuse River were exposed to coal ash slurry when Hurricane Matthew caused inundation of coal ash storage ponds. Coal-fired power plants pump large volumes of water to produce electricity and aquatic organisms such as larval waterdogs can be pulled in and killed unless measures are sufficient to keep organisms from being impacted. After water is used for electricity production, it is returned to surface waters, but the temperature can be considerably higher than the temperature of the stream, reducing the ability of the species to spawn. Hydropower as a domestic energy source is becoming more prevalent in North Carolina, including areas where the Neuse River waterdog occurs. Like other impoundments, streams and rivers impounded by hydropower dams are changed from lotic systems to lentic systems, fragmenting habitats and disrupting movements and migrations of fish and other aquatic organisms like the Neuse River waterdog. Downstream water quality can also suffer from low dissolved oxygen levels and altered temperatures. In addition, hydropower generation can significantly change flow VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 regimes downstream of hydropower dams, and can affect other riverine processes, such as sediment transport, nutrient cycling, and woody debris transport. Potential impacts to both species from oil and gas extraction are numerous; they include water quality and water quantity impacts, riparian habitat fragmentation and conversion, increased sand mining (used in oil and gas extraction), and increased road and utility corridors. While oil and gas extraction currently does not, and likely will not, occur in the Tar River Basin due to lack of subsurface shale deposits, impacts from shale gas extraction could occur in the Neuse River Basin (Service 2018, p. 46). Future impacts from oil and gas exploration and production are certain, as North Carolina has recently begun to allow fracking operations to drill for natural gas State-wide. Synergistic Effects In addition to individually impacting the species, it is likely that several of the above summarized risk factors are acting synergistically or additively on both species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in the Middle Neuse MU, there are 182 miles of impaired streams. They have low benthicmacroinvertebrate scores, low dissolved oxygen, low pH, and contain Escherichia coli (also known as E. coli). There are 9 major and 272 minor discharges within this MU, along with 287 dams, almost 4,000 road crossings, and droughts recorded for 3 consecutive years in 2008–2010. For example, if a small but improperly installed culvert at a road crossing prevents fish from moving up or downstream, the fish would not be able to escape to deeper areas of the stream during droughts. Similarly, a discharge into a stream has more impact on aquatic species if there are no precipitation events immediately following to help flush the system. These combinations of stressors on the sensitive aquatic species in this habitat likely impact both species more severely in combination than any one factor alone. In our analysis of the factors affecting both of these species, we found that there are no existing regulatory mechanisms that adequately address threats to both species such that they do not warrant listing under the Act (Factor D). We found no evidence of population- or species-level impacts from overutilization for commercial, recreational, scientific, or educational purposes (Factor B). Nor was there any evidence to support that there are PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 23651 impacts due to disease or predation (Factor C). 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, State, and university biologists are surveying and monitoring species occurrences; and recently there has been increased interest in efforts to consider captive propagation and species population restoration via augmentation, expansion, and reintroduction efforts. However, some of these programs are in their infancy, and none covers enough area to provide species-level protection at a scale such that the species would not warrant listing under the Act. 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 address uncertainty associated with the degree and extent of potential future stressors and their impacts on species’ requisites, the 3Rs were assessed using four plausible future scenarios. These scenarios were based, in part, on the results of urbanization and climate models that predict changes in habitat used by the Neuse River waterdog and the Carolina madtom. We devised scenarios by eliciting expert information on the primary stressors, urbanization and climate change. The models that were used to forecast both of these factors projected 50 years into the future. Using the best available data to forecast plausible future scenarios allows the Service to determine if a species may become an endangered species in the foreseeable future. Relatively long life spans, well-developed downscaled climate models specific to the region, and good growth data available for the Southeast region provide some confidence in the range of outcomes predicted over 50 years. Beyond that timeframe, there is too much uncertainty in threats that will be occurring on the landscape and how the species may respond to those threats. For more detailed information on these models and their projections, please see the SSA reports (Service, 2017). In scenario one, the ‘‘Status Quo’’ scenario, factors that influence current populations of the Neuse River waterdog and the Carolina madtom were assumed to follow current trends over the 50-year time horizon. Climate E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 23652 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules models predict that, if emissions continue at current rates, the Southeast will experience an increase in low flow (drought) events (IPCC 2013, p. 7). Likewise, this scenario assumed the ‘business as usual’ pattern of urban growth, which predicts that urbanization will continue to increase rapidly (Terando et al. 2014, p. 1). 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 assumed that current conservation efforts would remain in place but that no new actions would be taken. In scenario two, the ‘‘Pessimistic’’ scenario, factors that negatively influence Neuse River waterdog and the Carolina madtom populations get worse; reflecting Climate Model RCP8.5 (Wayne 2013, p. 11), effects of climate change are expected to be magnified beyond what is experienced in the ‘‘Status Quo’’ scenario. These predicted effects include extreme heat, more storms and flooding, and exacerbated drought conditions (IPCC 2013, p. 7). Based on the results of the SLEUTH BAU model (Terando et al. 2014, entire), urbanization in the relevant watersheds could expand to triple the amount of developed area, resulting in large increases of impervious surface cover and, potentially, consumptive water use. Increased urbanization and climate change effects are likely to result in increased impacts to water quality, water flow, and habitat connectivity, and we predict that there is limited capacity for species restoration under this scenario. Scenario three is labeled the ‘‘Optimistic’’ scenario, and factors that influence population and habitat conditions of the Neuse River waterdog and the Carolina madtom are expected to be somewhat improved. Reflecting Climate Model RCP2.6 (Wayne 2013, p. 11), climate change effects are predicted to be minimal under this scenario and would not include increased temperatures, and storms or droughts are as set forth in the ‘‘Status Quo’’ and ‘‘Pessimistic’’ scenario predictions. Urbanization is also predicted to have less impact in this scenario, as reflected by effects that are slightly lower than BAU model predictions (Terando et al. 2014; Table 5–1). Because water quality, water flow, and habitat impacts are predicted to be less severe in this scenario as compared to others, it is expected that the species will maintain or have a slightly positive response. Targeted permanent protection of VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 riparian areas is a potential conservation activity that could benefit these species, and current efforts are considered successful as part of the Optimistic Scenario. In scenario four, the ‘‘Opportunistic’’ scenario, those landscape-level factors (e.g., development and climate change) that are influencing populations of the Neuse River waterdog and the Carolina madtom get moderately worse, reflecting Climate Change Model RCP4.5 (Wayne 2013, p. 11) and SLEUTH BAU (Terando et al. 2014; Table 5–1). Effects of climate change are expected to be moderate, resulting in some increased impacts from heat, storms, and droughts (IPCC 2013, p. 7). Urbanization in this scenario reflects the moderate BAU SLEUTH levels, indicating approximately double the amount of developed area compared to current levels. Overall, it is expected that the synergistic impacts of changes in water quality, flow, and habitat connectivity will negatively affect both species, although current land conservation efforts will benefit the species in some watersheds. Determination Neuse River Waterdog The historical range of the Neuse River Waterdog likely included all 3rd and 4th order streams and rivers throughout the Tar, Neuse, and Trent drainages, with documented historical distribution in nine MUs within three populations. Of those nine occupied MUs, two (22%) are estimated to have high resiliency, two (22%) moderate resiliency, and five (56%) low resiliency. Scaling up from the MU to the population level, one of three populations (the Tar population) was estimated to have moderate resiliency, and two (the Neuse and Trent populations) were characterized by low resiliency. In short, 60 percent of streams that were once part of the species’ range are estimated to be in low condition or likely extirpated. The species is known to occupy streams in two physiographic regions, but it has lost physiographic representation with an estimated 43 percent loss in Piedmont watersheds and an estimated 13 percent loss in Coastal Plain watersheds. The Neuse River waterdog faces threats from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats (Factor A). These threats are expected to be exacerbated by continued urbanization (Factor A) and effects of climate change (Factor E). Given current PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 and future decreases in resiliency, populations 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 Neuse River waterdog habitat conditions and population factors suggest reduced viability into the future. Under Scenario 1, the ‘‘Status Quo’’ option, a loss of resiliency, representation, and redundancy is expected. Under this scenario, we predicted that no MUs would remain in high condition, two in moderate condition, four in low condition, and three MUs would be likely extirpated. Redundancy would be reduced to four MUs in the Tar Population and two in the Neuse Population. Representation would also be reduced, primarily with reduced variability in the Piedmont and Coastal Plain. Under scenario two, the ‘‘Pessimistic’’ option, we predicted substantial losses of resiliency, representation, and redundancy. Redundancy would be reduced to four MUs in one population, and the resiliency of that population is expected to be low. Several (5) MUs were predicted to be extirpated, and, of the remaining four MUs, all would be in low condition. All measures of representation are predicted to decline under this scenario, leaving remaining Neuse River waterdog populations underrepresented in river basin and physiographic variability. Under scenario three, the ‘‘Optimistic’’ option, we predicted slightly higher levels of resiliency, representation, and redundancy than was estimated under the Status Quo or Pessimistic options. Three MUs would be in high condition, one in moderate condition, and the remaining five would be in low condition. Despite predictions of population persistence in the Neuse and Trent River Basins, these populations are expected to retain only low levels of resiliency, thus levels of representation are also predicted to decline under this scenario. Finally, under scenario four, the ‘‘Opportunistic’’ option, we predicted reduced levels of resiliency, representation, and redundancy. One MU would be in high condition, three would be in moderate condition, three in low condition, and two would be likely extirpated. Redundancy would be reduced with the loss of the Trent population. Under the Opportunistic scenario, representation is predicted to be reduced with 67 percent of formerly occupied river basins remaining occupied and with reduced variability in the Piedmont and Coastal Plain Physiographic Regions. Both the E:\FR\FM\22MYP2.SGM 22MYP2 23653 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules optimistic and opportunistic scenarios were determined to be ‘‘unlikely’’ in the analysis, while the most likely scenarios were status quo and pessimistic. Under either of these more likely scenarios, resiliency is low in most of the remaining populations, many populations are likely extirpated so that redundancy and representation are significantly reduced. This expected reduction in both the number and distribution of resilient populations is likely to make the species vulnerable to catastrophic disturbance. TABLE 2—PREDICTED NEUSE RIVER WATERDOG POPULATION CONDITIONS UNDER EACH OF FOUR PLAUSIBLE SCENARIOS Future scenarios of population conditions jbell on DSK3GLQ082PROD with PROPOSALS2 Populations: Management units Current #1 Status quo #2 Pessimistic #3 Optimistic Tar: Upper Tar .................................................... Low ................. Likely Extirpated. Moderate ........ High ................ High ................ Low ................. Low ................. High ................ High ................ High ................ Moderate ........ Low ................. Moderate. Moderate. High. Moderate. Low. Neuse: Middle Neuse ......................................... Low ................. Low ................. Low. Trent ................................................................... Low ................. Likely Extirpated. Low ................. Low ................. Low ................. Low ................. Likely Extirpated. Likely Extirpated. Likely Extirpated. Low ................. Tar: Middle Tar ................................................... Tar: Lower Tar .................................................... Tar: Sandy-Swift ................................................. Tar: Fishing Ck ................................................... Neuse: Upper Neuse .......................................... Likely Extirpated. Low ................. Moderate ......... Moderate ........ Low ................. Likely Extirpated. Low ................. Low ................. Likely Extirpated. Carolina Madtom The historical range of the Carolina madtom included 3rd and 4th order streams and rivers in the Tar, Neuse, and Trent drainages, with documented historical distribution in 11 MUs within 3 former populations, the Tar, Neuse, and Trent. The Carolina madtom is presumed extirpated from 64 percent (7) of the historically occupied MUs. Of the four MUs that remain occupied, one is estimated to have high resiliency, one with moderate resiliency, one with low resiliency, and one with very low resiliency. Scaling up from the MU to the population level, the Tar population is estimated to have moderate resiliency, the Neuse population is characterized by very low resiliency, and the Trent population is presumed to be extirpated. Of streams that were once part of the species’ range, 82 percent are estimated to be in low condition or likely extirpated. Once known to occupy streams in two physiographic regions, the species has also lost substantial physiographic representation with an estimated 44 percent loss in Piedmont watersheds and an estimated 86 percent loss in Coastal Plain watersheds. Estimates of current resiliency for Carolina madtom are low, as are estimates for representation and redundancy. The Carolina madtom faces a variety of ongoing threats from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats (Factor A). This species also faces the threat of predation from the invasive flathead catfish (Factor C). These threats are expected to VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Likely Extirpated. be exacerbated by continued urbanization (Factor A) and climate change (Factor E). Given current rates of resiliency, populations are vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. 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 Neuse River waterdog and the Carolina madtom meet either of these definitions, and find that Neuse River waterdog meets the definition of a threatened species, and Carolina madtom meets the definition of an endangered species. Neuse River waterdog. 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 Neuse River waterdog will continue to decline so it is likely to become in danger of extinction throughout all or a significant portion of the range within the foreseeable future. First, we considered whether the Neuse River waterdog is presently in danger of extinction and determined that proposing endangered status is not appropriate. The current conditions as assessed in the Neuse River waterdog SSA report show that the species exists in nine MUs over three different populations (river systems) over a PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 #4 Opportunistic majority (65 percent) of the species’ historical range. The Neuse River waterdog still exhibits representation across both physiographic regions, and extant populations remain across the range. In short, while the primary threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all of its range. However, according to our assessment of plausible future scenarios, the species is likely to become an endangered species in the foreseeable future throughout all of its range. Fifty years was considered ‘‘foreseeable’’ in this case because it included projections from both available models, and Neuse River waterdogs are a long-lived and slow-growing species. We can 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 over that timeframe. As discussed above, the range of plausible future scenarios of Neuse River waterdog habitat conditions and population factors suggest reduced viability into the future. Both the optimistic and opportunistic scenarios were determined to be ‘‘unlikely’’ in the analysis, while the most likely scenarios were status quo and pessimistic. Under either of these more likely scenarios, resiliency is low in most of the remaining populations, and many populations are likely extirpated so that redundancy and representation are significantly reduced. This expected reduction in both the number and E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 23654 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules distribution of resilient populations is likely to make the species vulnerable to catastrophic disturbance. 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 Neuse River waterdog 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 are proposing to list the Neuse River waterdog as a threatened species across its entire range in accordance with sections 3 and 4(a)(1) of the Act. Carolina madtom. The current conditions as assessed in the Carolina madtom SSA report show that 64 percent of the management units over three populations (river systems) are presumed extirpated. The Carolina madtom currently has two of three remaining populations, but one of those populations (Neuse) is characterized by ‘‘very low’’ resiliency. Once known to occupy streams in two physiographic regions, the species has also lost substantial physiographic representation with an estimated 44 percent loss in Piedmont watersheds and an estimated 86 percent loss in Coastal Plain watersheds. Resiliency, redundancy, and representation are all at levels that put the species at risk of extinction throughout its range now. We conclude that the species is currently in danger of extinction throughout all of its range. We find that a threatened species status is not appropriate for the Carolina madtom because the threats are ongoing VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 currently and are expected to continue or worsen into the future. Because the species is already in danger of extinction throughout its range, a threatened status is not appropriate. 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 Carolina madtom is in danger of extinction 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 Carolina madtom as an endangered species across its entire range in accordance with sections 3 and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries, and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 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 from endangered to threatened (‘‘downlisting’’) or removal from the List of Endangered and Threatened Wildlife or 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 outlines, draft recovery plans, and the final recovery plans will be available on our website (http://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 E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules on private, State, and Tribal lands. If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of North Carolina would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Neuse River waterdog and Carolina madtom. Information on our grant programs that are available to aid species recovery can be found at: http:// www.fws.gov/grants. Although the Neuse River waterdog and Carolina madtom are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the species’ habitat that may require conference or consultation or both as described in the preceding paragraph may include, but are not limited to, management and any other landscapealtering activities on Federal lands administered by the Service, 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 VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 or highways by the Federal Highway Administration. II. Proposed Rule Issued Under Section 4(d) of the Act for the Neuse River Waterdog 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. 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. For the reasons discussed below, the Service has determined to develop a specific rule under section 4(d) for the Neuse River waterdog. Proposed 4(d) Rule Under this proposed 4(d) rule, all prohibitions and provisions of section 9(a)(1) of the Act would apply to the Neuse River waterdog, except that the PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 23655 following actions would not be prohibited: (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 composed 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 Neuse River waterdog and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species 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, cigarshaped 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 (BMPs), particularly for Streamside Management Zones, stream crossings, and forest roads; and (b) Comply with forest practice guidelines related to water quality E:\FR\FM\22MYP2.SGM 22MYP2 23656 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 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: http://www.ncasi.org/Downloads/ Download.ashx?id=10204 http://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 Neuse River waterdog, 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 exempted from prohibition 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 section 9(a)(1), 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. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act for Carolina madtoms and the proposed 4(d) rule above for Neuse River waterdog; this list is not comprehensive: (1) Unauthorized handling or collecting of the species; (2) Destruction or alteration of the species’ habitat by discharge of fill material, dredging, snagging, impounding, channelization, or modification of stream channels or banks; (3) Destruction of riparian habitat directly adjacent to stream channels that causes significant increases in sedimentation and destruction of natural stream banks or channels; (4) Discharge of pollutants into a stream or into areas hydrologically connected to a stream occupied by the species; (5) Diversion or alteration of surface or ground water flow; and (6) Pesticide/herbicide applications in violation of label restrictions. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). III. 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. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 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 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 E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules 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, VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 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 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 23657 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: (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.’’ As discussed above, we did not identify any imminent threat of take attributed to collection or vandalism for either the Neuse River waterdog or the Carolina madtom, and there is no indication that identification and mapping of critical habitat is likely to initiate any such threats. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is appropriate. The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat would not likely increase the degree of threat to these species and may provide some measure of benefit, designation of critical habitat is prudent for both the Neuse River waterdog and Carolina madtom. E:\FR\FM\22MYP2.SGM 22MYP2 23658 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for both species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) 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 both species and habitat characteristics where the species are 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 Neuse River waterdog and Carolina madtom. 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 Neuse River waterdog and Carolina madtom from studies of both species’ habitat, ecology, and life history. The primary habitat elements that influence resiliency of both species 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 reports; the individuals’ needs are summarized below in Tables 3 and 4. TABLE 3—LIFE HISTORY AND RESOURCE NEEDS OF THE NEUSE RIVER WATERDOG Life stage Resources and/or circumstances needed for INDIVIDUALS to complete each life stage Egg/Embryo—May–June ........... • • • • • Clean, flowing water with moderate current (∼10–50 cm/sec) Sexually mature males and females (∼6 years old) Appropriate spawning temperatures (8–22 °C) Nest sites (large flat rocks with gravel bottoms) Adequate flow for oxygenation (7–9 ppm DO) ....................... B Hatchling—late summer ............ • • • • Clean, non-turbid, flowing water (∼10–50 cm/sec) ................. Adequate food availability Clean, flowing water (∼10–50 cm/sec) .................................... Adequate food availability (opportunistic feeding; primarily invertebrates) Clean, flowing water (∼10–50 cm/sec) .................................... Adequate food availability (primarily invertebrates) Cover (large rocks/boulders, outcrops, burrows) for retreat areas Clean, flowing water deeper than 100 cm with flows 10–50 cm/sec. Streams >15m wide High dissolved oxygen (7–9 ppm) Appropriate substrate (hard clay bottom with leaf litter, gravel, cobble) Little to no siltation Adequate food availability (aquatic and terrestrial invertebrates) Cover (large rocks/boulders, outcrops, burrows) for retreat areas B, S Post-hatchling Larvae—1–2 inches long. Juveniles—Up to 5.5–6.5 years; 2–4 inches long. • • • Adults—6–30+ years—5–9 inches long. • • • • • • • jbell on DSK3GLQ082PROD with PROPOSALS2 Resource function (BFSD *) —Pudney et al. 1985, p. 54. —Cooper and Ashton 1985, p. 5. —Braswell and Ashton 1985, p. 21. — Ashton 1985, p. 95. —Cooper and Ashton 1985, p. 5. —Ashton 1985, p. 95. F, S F, S —Ashton 1985, p. 95. —Braswell 2005, p. 867. F, S, D —Braswell and Ashton 1985, pp. 13, 22, 28. —Ashton 1985, p. 95 —Braswell 2005, p. 868. *B = Breeding, F = Feeding, S = Sheltering, D = Dispersal. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 Information source E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules 23659 TABLE 4—LIFE HISTORY AND RESOURCE NEEDS OF THE CAROLINA MADTOM Life stage Egg/Embryo—May–July ............ Hatchling—late summer ............ Juveniles—2–3 years; >2.5 inches long. Adults—3+ years—>4 inches long. Resources and/or circumstances needed for INDIVIDUALS to complete each life stage • • • • • • • • • • • • • • Clear, flowing water ................................................................. Sexually mature males and females Appropriate spawning temperatures Nest sites (rocks, bottles, shells, cobble) Adequate flow for oxygenation Clear, flowing water Cohesive schooling behavior to avoid predation Clear, flowing water Adequate food availability (midges, caddisflies, mayflies, etc.) Cover (shells, bottles, cans, tires, woody debris, etc.) Clear, flowing water 1 to 3 feet deep Appropriate substrate (leaf litter, sand, gravel, cobble) Adequate food availability (midges, caddisflies, mayflies, etc.) Cover (shells, bottles, cans, tires, woody debris, etc.) Resource function (BFSD *) Information source B —Burr et al. 1989, p. 75. B, S —Burr et al. 1989, p. 78. F, S —Burr et al. 1989, p. 78. F, S, D —Burr et al. 1989, p. 63 —Midway et al. 2010, p. 326. jbell on DSK3GLQ082PROD with PROPOSALS2 * 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 Neuse River waterdog from studies of this species’ habitat, ecology, and life history as described above. Additional information can be found in the SSA Report (Service 2018) available on http:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0092. We have determined that the following physical or biological features are essential to the conservation of Neuse River waterdog: (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 native aquatic fauna (such as, stable riffle-run-pool habitats that provide flow refuges consisting of siltfree gravel, small cobble, coarse sand, and leaf litter substrates) as well as abundant cover and burrows used for nesting. (2) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain instream 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 waterdog’s habitat, food availability, and ample oxygenated flow for spawning and nesting habitat. (3) Water quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 heavy metals, and chemical constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages. (4) Invertebrate and fish prey items, which are typically hellgrammites, crayfish, mayflies, earthworms, snails, beetles, centipedes, slugs, and small fish. We derive the specific physical or biological features essential to the conservation of Carolina madtom from studies of this species’ habitat, ecology, and life history as described above. Additional information can be found in the SSA Report (Service 2018) available on http://www.regulations.gov under Docket No. FWS–R4–ES–2018–0092. We have determined that the following physical or biological features are essential to the conservation of Carolina madtom: (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 native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of silt-free gravel, small cobble, coarse sand, and leaf litter substrates) as well as abundant cover used for nesting. (2) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain instream habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 nutrients and sediment for maintenance of the fish’s habitat, food availability, and ample oxygenated flow for spawning and nesting habitat. (3) Water 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) Aquatic macroinvertebrate prey items, which are typically dominated by larval midges, mayflies, caddisflies, dragonflies, and beetle larvae. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Neuse River waterdog and Carolina madtom 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 E:\FR\FM\22MYP2.SGM 22MYP2 23660 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 systems; (5) dams, culverts, and utility 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 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. 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 both species is much reduced from their historical distributions. We anticipate that recovery will require continued protection of existing populations and habitat, as well as ensuring there are adequate numbers of Neuse River waterdogs and Carolina madtoms 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 NC State VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 University, the NC Wildlife Resources Commission, and the NC Natural Heritage Program 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 2018). Areas Occupied at the Time of Listing Neuse River Waterdog We identified stream channels that currently support populations of Neuse River waterdog. We defined ‘‘currently’’ as stream channels with observations of the species from 2010 to the present. Due to the breadth and intensity of survey effort done for amphibians throughout the known range of the species, it is reasonable to assume that streams with no positive surveys since 2010 should not be considered occupied for the purpose of our analysis. Specific occupied habitat areas were delineated based on Natural Heritage Element Occurrences (EOs) following NatureServe’s occurrence delineation protocol for freshwater fish (NatureServe 2018). These EOs provide habitat for Neuse River waterdog 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 waterdogs can move between areas, at least during certain flows or seasons. Based on this information, we consider the following subbasins to be currently occupied by the species at the time of proposed listing: Upper, Middle, and Lower Tar River subbasins, SandySwift Creek, Fishing Creek subbasin, Upper, Middle, and Lower Neuse River subbasins, and the Trent River (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. Carolina Madtom We identified stream channels that currently support populations of Carolina madtom. As with the Neuse River waterdog, we defined ‘‘current’’ as stream channels with observations of PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 the species from 2010 to the present. Due to the breadth and intensity of survey effort done for freshwater fish throughout the known range of the species, it is reasonable to assume that streams with no positive surveys since 2010 should not be considered occupied for the purpose of our analysis. Specific habitat areas were delineated based on Natural Heritage Element Occurrences (EOs) following NatureServe’s occurrence delineation protocol for freshwater fish (NatureServe 2018). These EOs provide habitat for Carolina madtom 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 fish 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: Upper Tar, Fishing Creek, Sandy-Swift Creek, and the Little River (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 Neuse River waterdog because we did not find any unoccupied areas that were essential for the conservation of the species. The protection of the nine currently occupied management units across the physiographic representation of the range would sufficiently reduce the risk of extinction, by improving the resiliency of populations in these currently occupied streams to increase viability to the point that the protections of the Act are no longer necessary. We are proposing three currently unoccupied units for the Carolina madtom that we determined to be essential for the conservation of the species. Carolina madtoms have been completely extirpated from the Trent River basin, four of the five Neuse River units, and two of the five Tar River basin management units. There is currently only one occupied management unit currently remaining in the Neuse River basin, and that population was found to be in ‘‘very low’’ condition in our resiliency analysis. Having at least three resilient E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules populations in both the Tar and Neuse River basins and at least one population in the Trent River basin is essential for the conservation of the Carolina madtom. Accordingly, we propose to designate one unoccupied unit in the Trent River basin and two in the Neuse River basin. Because there are already three populations in the Tar River basin, we do not consider an unoccupied unit in this basin to be essential for the species’ conservation. General Information on the Maps of the Proposed Critical Habitat Designation 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 http:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0092, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above). 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 Neuse River waterdog or Carolina madtom. 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. Proposed Critical Habitat Designation Neuse River Waterdog We are proposing to designate approximately 738 river mi (1,188 river 23661 km) in 16 units in North Carolina as critical habitat for the Neuse River waterdog. All of the units are currently occupied by the species and contain some or all of the physical and biological features essential to the conservation of the species. All units may require special management considerations or protection to address 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. These stressors are primarily related to habitat changes: The buildup of fine sediments, the loss of flowing water, instream habitat fragmentation, and impairment of water quality; these are all exacerbated by climate change. Table 5 shows the name, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated units for the Neuse River waterdog. Because all streambeds are navigable waters, the actual critical habitat units are all owned by the State of North Carolina. TABLE 5—PROPOSED CRITICAL HABITAT UNITS FOR THE NEUSE RIVER WATERDOG Critical habitat unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit Unit River miles (kilometers) Riparian ownership 1. TAR1–Upper Tar River ................................................... 2. TAR2–Upper Fishing Creek ............................................ 3. TAR3a–Fishing Creek Subbasin ..................................... 4. TAR3b–Sandy/Swift Creek ............................................. 5. TAR3c–Middle Tar River Subbasin ................................ 6. TAR3d–Lower Tar River Subbasin ................................. 7. NR1–Eno River ............................................................... 8. NR2–Flat River ................................................................ 9. NR3–Middle Creek .......................................................... 10. NR4–Swift Creek ........................................................... 11. NR5a–Little River .......................................................... 12. NR5b–Mill Creek ........................................................... 13. NR5c–Middle Neuse River ............................................ 14. NR6–Contentnea Creek/Lower Neuse River Subbasin 15. NR7–Swift Creek (Lower Neuse) .................................. 16. TR1–Trent River ............................................................ Private; Easements .................................................................... Private; Easements .................................................................... Private; Easements; State ......................................................... Private; Easements; State ......................................................... Private; Easements; State ......................................................... Private; Easements; State ......................................................... Private; Easements; State ......................................................... Private; Easements .................................................................... Private; Easements; Local ......................................................... Private ........................................................................................ Private; Easements .................................................................... Private; Easements .................................................................... Private; State; Easements ......................................................... Private; Easements .................................................................... Private; Easements .................................................................... Private ........................................................................................ 8.6 (13.8) 10.5 (16.9) 62.8 (101) 68.3 (110) 100 (161) 60.6 (97.5) 41.5 (66.8) 17.4 (28) 7.6 (12.2) 23.4 (37.7) 89.6 (144) 19 (30.6) 40 (64.4) 117 (188.3) 10 (16) 62 (100) Total ..................................................................................... .................................................................................................... 738 (1,188) Note: Area sizes may not sum due to rounding. Tar Population jbell on DSK3GLQ082PROD with PROPOSALS2 Unit 1: TAR1–Upper Tar River Unit 1 consists of 8.6 river mi (13.8 river km) of the Upper Tar River in Granville County from approximately SR1004 (Old NC 75) downstream to NC 96. The riparian land adjacent to this unit is primarily privately owned (86%), VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 with several conservation parcels or easements (14%). (94%) with several conservation parcels or easements (6%). Unit 2: TAR2–Upper Fishing Creek Unit 3: TAR3a–Fishing Creek Subbasin Unit 2 consists of 10.5 river mi (16.9 river km) of Upper Fishing Creek in Warren County. This unit extends from SR1118 (No Bottom Drive) downstream to NC58. The riparian land adjacent to the unit is primarily privately owned Unit 3 consists of approximately 63 river mi (101 river km) of lower Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of SR1214 (Silvertown Rd) downstream to the confluence with Fishing Creek, and PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\22MYP2.SGM 22MYP2 23662 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules including the mainstem of Fishing Creek to the confluence with the Tar River in Halifax, Nash, and Edgecombe Counties. The riparian land adjacent to the unit includes private land (91%), several conservation parcels (6%), and State Game Lands (3%). Unit 4: TAR3b–Sandy/Swift Creek Unit 4 consists of an approximately 68-river-mi (110-river-km) segment of Sandy Creek downstream of SR 1451 (Leonard Road) to the confluence with the Tar River, including Red Bud Creek downstream of the Franklin/Nash county line to the confluence with Swift Creek. This unit is located in Franklin, Nash, and Edgecombe Counties. The riparian land adjacent to this unit includes private lands (97%), conservation parcels (1%), and State Game Lands (2%). Unit 5: TAR3c–Middle Tar River Subbasin Unit 5 consists of an approximately 100-river-mi (161-river-km) segment of the Middle Tar River from the confluence with Cedar Creek downstream to the confluence with Fishing Creek, including Stony Creek below SR1300 (Boddies’ Millpond Rd), downstream to the confluence with the Tar River. This unit is located in Franklin, Nash, and Edgecombe Counties. The riparian land adjacent to this unit is nearly all private lands (99%), with less than 1% conservation parcels, local parks, and a research station. Unit 6: TAR3d–Lower Tar River Subbasin Unit 6 consists of approximately 60 river mi (96.6 river km) in the Lower Tar River Subbasin from the confluence with Fishing Creek downstream to the confluence with Barber Creek near SR1533 (Port Terminal Road). This includes portions of Town Creek below NC111 to the confluence with the Tar River, Otter Creek below SR1251 to the confluence with the Tar River, and Tyson Creek below SR1258 to the confluence with the Tar River. This unit is located in Edgecombe and Pitt Counties. The riparian land adjacent to this unit consists of private land (97%), conservation parcels (2.5%), and State Game Lands (0.5%). jbell on DSK3GLQ082PROD with PROPOSALS2 Unit 7: NR1–Eno River Unit 7 consists of approximately 41.5 river mi (66.8 river km) of the Eno River from NC86 downstream to the inundated portion of Falls Lake in Orange and Durham Counties. The riparian land adjacent to this unit 18:06 May 21, 2019 Unit 8: NR2–Flat River Unit 8 is a 17.4-river-mi (28-river-km) segment of the Flat River from SR1739 (Harris Mill Road) downstream to the inundated portion of Falls Lake, located in Person and Durham Counties. The riparian land adjacent to this unit consists of some private land (49%) and extensive conservation parcels (51%), including demonstration forest, recreation areas, and State Game Lands. Unit 9: NR3–Middle Creek Unit 9 is a 7.6-river-mi (12.2-river-km) stretch of Middle Creek from Southeast Regional Park downstream to the Interstate 40 crossing, located in Wake and Johnston Counties. The riparian land adjacent to this unit is predominantly privately owned (92%) with a few conservation parcels (8%). Jkt 247001 land (7%), and the Seymour Johnson Air Force Base (0.05%). The 2 miles of river segment located on the land owned by the Air Force Base is exempt from critical habitat under section 4(a)(3) of the Act (see Exemptions, below). Unit 14: NR6–Contentnea Creek/Lower Neuse River Subbasin Unit 14 is an approximately 117-rivermi (188.3-river-km) reach, including Contentnea Creek from NC581 downstream to its confluence with the Neuse River, Nahunta Swamp from the Wayne/Greene County line to the confluence with Contentnea Creek, and the Neuse River from the confluence with Contentnea Creek to the confluence with Pinetree Creek, located in Greene, Wilson, Wayne, Lenoir, Pitt, and Craven Counties. The riparian land adjacent to this unit is nearly all privately owned land (99%), with <1% conservation parcels. Unit 10 is a 23.35-river-mi (37.6-riverkm) stretch of Swift Creek from NC42 downstream to the confluence with the Neuse River, located in Johnston County. The riparian land adjacent to this unit is entirely privately owned. Unit 15: NR7–Swift Creek Unit 15 is a 10.13-river-mi (16.3-riverkm) reach of Swift Creek from SR1931 (Beaver Camp Rd) downstream to SR1440 (Streets Ferry Rd) located in Craven County. The riparian land adjacent to this unit is nearly all privately owned (99%) with some conservation parcels (1%). Unit 11: NR5a–Little River Trent Population Unit 11 is an 89.6-river-mi (144.2river-km) segment of the Little River from near NC96 downstream to the confluence with the Neuse River, including Buffalo Creek from NC39 to the confluence with Little River, located in Franklin, Wake, Johnston, and Wayne Counties. The riparian land adjacent to this unit is predominantly privately owned (90%) with some (10%) local municipal conservation parcels (Little River Reservoir). Unit 16: TR1–Trent River Unit 16 is a 62-river-mi (100-river-km) reach that includes Beaver Creek from SR1316 (McDaniel Fork Rd) to the confluence with the Trent River, and Trent River from the confluence with Poplar Branch downstream to SR1121 (Oak Grove Rd) crossing at the Marine Corps Cherry Point property, in Jones County. The riparian land adjacent to this unit is entirely privately owned. Unit 10: NR4–Swift Creek (Middle Neuse) Unit 12: NR5b–Mill Creek Unit 12 is an 18.7-river-mi (30-riverkm) segment of Mill Creek from upstream of US701 downstream to the confluence with the Neuse River located in Johnston and Wayne Counties. The riparian land adjacent to this unit is predominantly privately owned (95%) with some conservation parcels (5%). Unit 13: NR5c–Middle Neuse River Neuse Population VerDate Sep<11>2014 includes private lands (61%), State Park Lands (25%), local government conservation parcels (12%), and State Game Lands (2%). Unit 13 is a 39.8-river-mi (64-riverkm) segment of the Middle Neuse River from the confluence with Mill Creek downstream to the Wayne/Lenoir County line, located in Wayne County. The riparian land adjacent to this unit includes privately owned land (92%), conservation parcels (0.95%), State Park PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Carolina Madtom We are proposing to designate approximately 257 river miles (414 river kilometers) in 7 units in North Carolina as critical habitat for the Carolina madtom. Four of the units are currently occupied by the species and contain some or all of the physical and biological features essential to the conservation of the species. Three of the units are unoccupied but are essential to the conservation of the species. All units proposed may require special management considerations or protection to address 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 E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules suitability. These stressors are primarily related to habitat changes: the buildup of fine sediments, the loss of flowing water, instream habitat fragmentation, and impairment of water quality; these are all exacerbated by climate change. Table 6 shows the name, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated 23663 units for the Carolina madtom. Because all streambeds are navigable waters, the actual critical habitat units are all owned by the State of North Carolina. TABLE 6—PROPOSED CRITICAL HABITAT UNITS FOR THE CAROLINA MADTOM Unit Unit Unit Unit Unit Unit Unit Length of unit in river miles (kilometers) Occupied at the time of listing Riparian ownership TAR1–Upper Tar River .............................................. TAR2–Sandy/Swift Creek ........................................... TAR3–Fishing Creek Subbasin .................................. NR1–Upper Neuse River Subbasin (Eno River) ........ NR2–Little River ......................................................... NR3–Contentnea Creek ............................................. TR1–Trent River ......................................................... Yes ................. Yes ................. Yes ................. No .................. Yes ................. No .................. No .................. Private ................................................................. Private; Easements ............................................ Private; Easements; State .................................. Easements; State; Private .................................. Private; Easements ............................................ Private ................................................................. Private ................................................................. 26 (42) 66 (106) 86 (138) 20 (32) 28 (45) 15 (24) 15 (24) Total ................................................................................ ........................ ............................................................................. 257 (414) Critical habitat unit 1. 2. 3. 4. 5. 6. 7. Note: Area sizes may not sum due to rounding. privately owned parcels (89%), State Game Lands and State Park land (5%), and conservation parcels (6%). Tar Population Unit 1: TAR1–Upper Tar River Unit 1 consists of 26 river mi (42 river km) of the Upper Tar River, from the confluence with Sand Creek to the confluence with Sycamore Creek, in Granville, Vance, and Franklin Counties. Unit 1 is occupied by the species and contains all of the physical and biological features essential to the conservation of the species. The riparian land adjacent to the river is entirely privately owned. Unit 2: TAR2–Sandy/Swift Creek Unit 2 consists of 66 river mi (106 river km) of Sandy and Swift Creeks, located downstream from NC561 to the confluence with the Tar River, in Edgecombe, Vance, Warren, Halifax, Franklin, and Nash Counties. This unit is occupied and contains all of the physical and biological features necessary for the conservation of the species. The riparian land adjacent to this unit is predominantly privately owned (96%), with conservation parcels (2%) and State Game Lands (2%). jbell on DSK3GLQ082PROD with PROPOSALS2 Unit 3: TAR3–Fishing Creek Subbasin Unit 3 consists of approximately 86 river mi (138 river km), including Fishing Creek from the confluence with Hogpen Branch to the confluence with the Tar River, and Little Fishing Creek from Medoc Mountain Road (SR1002) to the confluence with Fishing Creek, located in Edgecombe, Warren, Halifax, Franklin, and Nash Counties. This unit is occupied by the species and contains all of the physical and biological features necessary for the conservation of the species. The riparian land adjacent to the unit is divided between VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Neuse River Population Unit 4: NR1–Upper Neuse River Subbasin (Eno River) Unit 4 consists of approximately 20 river mi (32 river km) of the Upper Neuse River extending from Eno River State Park downstream of NC70 to the confluence with Cabin Creek near Falls Lake impoundment, located in Orange and Durham Counties. This unit is not occupied by the species. There is one historical record of Carolina madtoms in this unit from 1961, but followup surveys in 2011 were not able to find any individuals. Although it is unoccupied, it does contain all of the physical and biological features necessary for the conservation of the species. This unit is itself essential for the conservation of the species because it will provide for population expansion and resiliency in portions of known historical habitat that is necessary to increase the resiliency, redundancy, and representation to increase viability of the species. Riparian land adjacent to the unit is almost entirely (95%) within State Park Lands, local government conservation parcels, and State Game Lands. Unit 5: NR2–Little River Unit 5 consists of 28 river mi (45 river km) of the Upper and Lower Little River from NC42 to Johnston/Wayne County line, located in Johnston County. This unit is occupied and contains all of the physical and biological features necessary for the conservation of the species. The riparian land adjacent to the unit is predominantly privately PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 owned (99%) with some (1%) State Conservation ownership. Unit 6: NR3–Contentnea Creek Unit 6 consists of approximately 15 river mi (24 river km) of Contentnea Creek from Buckhorn Reservoir to Wiggins Mill Reservoir, located in Wilson County. This unit is not occupied by the species. The last known documentation of the species was in 2007. Although it is unoccupied, it does contain all of the physical and biological features necessary for the conservation of the species. This unit itself is essential for the conservation of the species because it will provide for population expansion and resiliency in portions of known historical habitat that is necessary to increase the resiliency, redundancy, and representation to increase viability of the species. The riparian land adjacent to this unit is entirely privately owned. Trent Population Unit 7: TR1–Trent River Unit 7 consists of approximately 15 river mi (24 river km) of the Trent River between the confluence with Cypress Creek and Beaver Creek, in Jones County. This unit is unoccupied by the species. The last known documentation of the species here was in 1986. Although it is unoccupied, it does contain all of the physical and biological features necessary for the conservation of the species. This unit itself is essential for the conservation of the species because it will provide for population expansion and resiliency in portions of known historical habitat that is necessary to increase the resiliency, redundancy, and representation to increase viability of the species. All of E:\FR\FM\22MYP2.SGM 22MYP2 23664 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules the riparian land adjacent to this unit is privately owned. jbell on DSK3GLQ082PROD with PROPOSALS2 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 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 VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 that consists of Department of Defense lands with a completed, Serviceapproved INRMP. The Seymour Johnson Air Force Base (SJAFB) is located in Goldsboro, North Carolina, on 3,220 acres. SJAFB is federally owned land that is managed by the Air Force and is subject to all Federal laws and regulations. The SJAFB INRMP covers fiscal years 2015–2020, 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 prohibiting the introduction of exotic species, the preparation of a fish and wildlife management plan, the enforcement of game laws, the conservation of wildlife and migratory waterfowl, licenses and permits, regulating the use of chemical toxicants for controlling nuisance species, the protection of endangered and threatened species, and allowing public access to military property. Management actions that benefit the Neuse River waterdog include: Analyze the adequacy of existing stormwater facilities and BMPs; collect effluent data from each drainage basin within the context of an ecosystem goal for surface and ground water discharges from SJAFB to make it easier to evaluate the scientific, ecological, and economic value of current and proposed BMPs; collect seasonal and annual data concerning stormwater runoff and nonpoint source pollution to evaluate the contribution and water quality of stormwater runoff from SJAFB to the surrounding watersheds; address watershed protection and enhancement of water quality, and regulate the amounts of water used in future landscaping and grounds maintenance activities, including the use of herbicides, pesticides, and fertilizers; and the application of appropriate stormwater management practices. Two miles (3.2 km) of Unit 13 (NR5c– Middle Neuse River) 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 SJAFB INRMP and that conservation efforts identified in the INRMP will provide a benefit to the Neuse River waterdog. Therefore, streams within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 2 river mi (3.2 km) of habitat in this proposed critical habitat designation because of this exemption. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 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 E:\FR\FM\22MYP2.SGM 22MYP2 jbell on DSK3GLQ082PROD with PROPOSALS2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules 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) for each species considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEMs was then used to develop a screening analysis of the probable effects of the designation of critical habitat for both species (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 designations for the Carolina madtom and Neuse River waterdog, and is summarized in the narrative below. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 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 August 10, 2018, IEM, 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 the listing portion of this document, 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 Carolina madtom and Neuse River waterdog. 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 23665 species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to either species 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 the 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 Neuse River waterdog totals approximately 738 river miles (1,188 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. The proposed critical habitat designation for the Carolina madtom totals approximately 257 river miles (414 river km), most of which is currently occupied by the species, but with three unoccupied units. In the occupied 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 the occupied 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. Three of the proposed Carolina madtom critical habitat units (NR1, NR3, and TR1) are unoccupied. Two of these units (NR1 and NR3) overlap entirely with river miles proposed as critical habitat for Neuse River waterdog. The third unoccupied unit (TR1) overlaps partially with proposed Neuse River waterdog critical habitat, but includes approximately 7 E:\FR\FM\22MYP2.SGM 22MYP2 23666 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules river miles that do not overlap (representing approximately three percent of the Carolina madtom critical habitat). However, these river miles are located in a remote area where future section 7 consultations are not anticipated. It is believed that, in most circumstances, these costs would not reach the threshold of ‘‘significant’’ under E.O. 12866. For the critical habitat designations for both species, we anticipate a maximum of 115 section 7 consultations annually at a total incremental cost of approximately $270,000 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. 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. Based on the draft analysis, 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. jbell on DSK3GLQ082PROD with PROPOSALS2 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 or Department of Homeland Security where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for both species are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security (but see Exemptions, above). Consequently, the Secretary does not propose to exercise his discretion to exclude any areas from the final VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 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 Habitat Conservation Plans (HCPs), safe harbor agreements, or candidate conservation agreements with assurances, or whether there are nonpermitted 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 Carolina madtom or Neuse River waterdog, and the proposed designation does not include any Tribal lands or trust resources. 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 that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final regulation with a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214). Destruction or adverse modification means a direct or PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 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 Army National Guard; 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, E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (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 Carolina madtom or Neuse River waterdog. 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 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 VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Carolina madtom or Neuse River waterdog. 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 species 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 species 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 both species 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 both species, degrading water quality during their decay, and decreasing oxygen levels at night from their respiration to levels below the tolerances of the species. (5) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 23667 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 two species 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 species. (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 either species. 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, and can result in direct predation, or affect the growth, reproduction, and survival, of both species. 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. E:\FR\FM\22MYP2.SGM 22MYP2 23668 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. jbell on DSK3GLQ082PROD with PROPOSALS2 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 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 the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if 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 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 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 E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 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 State of 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 Neuse River waterdog and Carolina madtom in takings implications assessments. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for both species and concludes that, if adopted, this designation of critical habitat for Neuse River waterdog and Carolina madtom does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary 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 State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur. Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 23669 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 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. This determination is discussed in the October 1983 Federal Register document just mentioned. 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)). E:\FR\FM\22MYP2.SGM 22MYP2 23670 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules 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 Common name * to make information available to tribes. As we have already discussed, there are no tribal lands in the proposed critical habitat designation, or that will be otherwise affected by the proposed listing. Proposed Regulation Promulgation References Cited A complete list of references cited in the SSA Report is available on the internet at http://www.regulations.gov and upon request from the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Raleigh Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Scientific name * Where listed * Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by adding entries for ‘‘Waterdog, Neuse River’’ in alphabetical order under AMPHIBIANS and ‘‘Madtom, Carolina’’ in alphabetical order under FISHES to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * * Listing citations and applicable rules Status * * * * * Amphibians * Waterdog, Neuse River ... * * * Necturus lewisi ............... * * Wherever found .............. * * T * * * [Federal Register citation when published as a 4d final rule] 50 CFR 17.43(f) 50 CFR 17.95(d).CH * * * Fishes * Madtom, Carolina ............ * * * Noturus furiosus ............. * * 3. Amend § 17.43 by adding paragraph (f) to read as follows: ■ § 17.43 Special rules—amphibians. jbell on DSK3GLQ082PROD with PROPOSALS2 * * * * * (f) Neuse River waterdog (Necturus lewisi). (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 Neuse River waterdog. (2) Exceptions from prohibitions. Incidental take of the Neuse River waterdog will not be considered a violation of the Act if the take results from any of the following activities: VerDate Sep<11>2014 18:38 May 21, 2019 * Wherever found .............. Jkt 247001 * * E * (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 PO 00000 Frm 00028 Fmt 4701 * * [Federal Register citation when published as a final rule] 50 CFR 17.95(e).CH Sfmt 4702 * * 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 composed 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 Neuse River waterdog and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 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, cigarshaped 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. ■ 4. Amend § 17.95 by: ■ a. Adding to paragraph (d) an entry for ‘‘Neuse River waterdog (Necturus lewisi)’’ in the same alphabetical order as the species appears in the table in § 17.11(h), to read as set forth below; and ■ b. Adding to paragraph (e) an entry for ‘‘Carolina madtom (Noturus furiosus)’’ in the same alphabetical order as the species appears in the table in § 17.11(h), to read as set forth below: VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 § 17.95 Critical habitat—fish and wildlife. * * * * (d) Amphibians. * * * * * * Neuse River Waterdog (Necturus lewisi) (1) Critical habitat units are depicted for Craven, Durham, Edgecombe, Franklin, Granville, Greene, Halifax, Johnston, Jones, Lenoir, Nash, Orange, Person, Pitt, Wake, Warren, Wayne, and Wilson Counties, North Carolina, on the maps below. (2) Within these areas, the physical or biological features essential to the conservation of Neuse River waterdog 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 native aquatic fauna (such as, stable riffle-run-pool habitats that provide flow refuges consisting of siltfree gravel, small cobble, coarse sand, and leaf litter substrates) as well as abundant cover and burrows used for nesting. (ii) Adequate flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain instream 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 waterdog’s habitat, food availability, and ample oxygenated flow for spawning and nesting habitat. (iii) Water quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 23671 constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages. (iv) Invertebrate and fish prey items, which are typically hellgrammites, crayfish, mayflies, earthworms, snails, beetles, centipedes, slugs, and small fish. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL 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 Natural Heritage program’s 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 http://www.regulations.gov under Docket No. FWS–R4–ES–2018–0092 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: E:\FR\FM\22MYP2.SGM 22MYP2 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (6) Unit 1: TAR1–Upper Tar River, Granville County, North Carolina. (i) This unit consists of 8.6 river miles (13.8 river kilometers) of occupied VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 habitat in the Upper Tar River from approximately SR1004 (Old NC 75) PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 downstream to NC 96. Unit 1 includes stream habitat up to bank full height. (ii) Map of Unit 1 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.000</GPH> 23672 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 in Upper Fishing Creek from SR1118 (No Bottom Drive) downstream to NC58. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 Unit 2 includes stream habitat up to bank full height. (ii) Map of Unit 2 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.001</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (7) Unit 2: TAR2–Upper Fishing Creek, Warren County, North Carolina. (i) This unit consists of 10.5 river miles (16.9 river kilometers) of habitat 23673 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (8) Unit 3: TAR3a–Fishing Creek Subbasin, Edgecombe, Halifax, and Nash Counties, North Carolina; Unit 4: TAR3b–Sandy/Swift Creek, Edgecombe, Franklin, and Nash Counties, North Carolina; Unit 5: TAR3c–Middle Tar River Subbasin, Edgecombe, Franklin, and Nash Counties, North Carolina; and Unit 6: TAR3d–Lower Tar River Subbasin, Edgecombe and Pitt Counties, North Carolina. Units 3, 4, 5, and 6 include stream habitat up to bank full height. (i) Unit 3 consists of 63 river miles (101 river kilometers) of habitat in lower Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of SR1214 (Silvertown Rd) downstream to the VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 confluence with Fishing Creek, and including the mainstem of Fishing Creek to the confluence with the Tar River. (ii) Unit 4 consists of 68 river miles (110 river kilometers) of habitat in Sandy Creek downstream of SR 1451 (Leonard Road) to the confluence with the Tar River, including Red Bud Creek downstream of the Franklin/Nash county line to the confluence with Swift Creek. (iii) Unit 5 consists of approximately 100 river miles (161 river kilometers) of the Middle Tar River from the confluence with Cedar Creek downstream to the confluence with Fishing Creek, including Stony Creek PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 below SR1300 (Boddies’ Millpond Rd), downstream to the confluence with the Tar River. (iv) Unit 6 consists of approximately 60 river miles (96.6 river kilometers) in the Lower Tar River Subbasin from the confluence with Fishing Creek downstream to the confluence with Barber Creek near SR1533 (Port Terminal Road). This unit includes portions of Town Creek below NC111 to the confluence with the Tar River, Otter Creek below SR1251 to the confluence with the Tar River, and Tyson Creek below SR1258 to the confluence with the Tar River. (v) Map of Units 3, 4, 5, and 6 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.002</GPH> 23674 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 of habitat in the Eno River from NC86 downstream to the inundated portion of PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 Falls Lake. Unit 7 includes stream habitat up to bank full height. (ii) Map of Unit 7 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.003</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (9) Unit 7: NR1–Eno River, Durham and Orange Counties, North Carolina. (i) This unit consists of approximately 41.5 river miles (66.8 river kilometers) 23675 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (10) Unit 8: NR2–Flat River, Durham and Person Counties, North Carolina. (i) This unit consists of 17.4 river miles (28 river kilometers) of habitat in VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 the Flat River from SR1739 (Harris Mill Road) downstream to the inundated PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 portion of Falls Lake. Unit 8 includes stream habitat up to bank full height. (ii) Map of Unit 8 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.004</GPH> 23676 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 (i) This unit consists of 7.6 river miles (12.2 river kilometers) of habitat in the Middle Creek from Southeast Regional Park downstream to the Interstate 40 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 crossing. Unit 9 includes stream habitat up to bank full height. (ii) Map of Unit 9 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.005</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (11) Unit 9: NR3–Middle Creek, Johnston and Wake Counties, North Carolina. 23677 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (12) Unit 10: NR4–Swift Creek, Johnston County, North Carolina. (i) This unit consists of 23.4 river miles (37.6 river kilometers) of occupied VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 habitat in Swift Creek from NC42 downstream to the confluence with the PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 Neuse River. Unit 10 includes stream habitat up to bank full height. (ii) Map of Unit 10 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.006</GPH> 23678 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 (i) Unit 11 consists of 89.6 river miles (144.2 river kilometers) of habitat in the Little River from near NC96 downstream to the confluence with the Neuse River, including Buffalo Creek from NC39 to the confluence with the Little River. (ii) Unit 12 consists of 18.7 river miles (30 river kilometers) of Mill Creek from PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 upstream of US701 downstream to the confluence with the Neuse River. (iii) Unit 13 consists of 39.8 river miles (64 river kilometers) of the Middle Neuse River from the confluence with Mill Creek downstream to the Wayne/ Lenoir County line. (iv) Map of Units 11, 12, and 13 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.007</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (13) Unit 11: NR5a–Little River, Franklin, Johnston, Wake, and Wayne Counties, North Carolina; Unit 12: NR5b–Mill Creek, Johnston and Wayne Counties, North Carolina; and Unit 13: NR5c–Middle Neuse River, Wayne County, North Carolina. Units 11, 12, and 13 include stream habitat up to bank full height. 23679 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (14) Unit 14: NR6–Contentnea Creek/ Lower Neuse River Subbasin, Craven, Lenoir, Pitt, Wayne, and Wilson Counties, North Carolina. (i) This unit consists of 117 river miles (188.3 river kilometers) of habitat VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 in the Contentnea Creek from NC581 downstream to its confluence with the Neuse River, Nahunta Swamp from the Wayne/Greene County line to the confluence with Contentnea Creek, and the Neuse River from the confluence PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 with Contentnea Creek to the confluence with Pinetree Creek. Unit 14 includes stream habitat up to bank full height. (ii) Map of Unit 14 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.008</GPH> 23680 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Swift Creek from SR1931 (Beaver Camp Rd) downstream to SR1440 (Streets PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 Ferry Rd). Unit 15 includes stream habitat up to bank full height. (ii) Map of Unit 15 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.009</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (15) Unit 15: NR7–Swift Creek, Craven County, North Carolina. (i) This unit consists of 10 river miles (16.3 river kilometers) of habitat in 23681 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (16) Unit 16: TR1–Trent River, Jones County, North Carolina. (i) This unit consists of 62 river miles (100 river kilometers) of habitat in Beaver Creek from SR1316 (McDaniel VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Fork Rd) to the confluence with the Trent River, and Trent River from the confluence with Poplar Branch downstream to SR1121 (Oak Grove Rd) PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 crossing at the Marine Corps Cherry Point property. Unit 16 includes stream habitat up to bank full height. (ii) Map of Unit 16 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.010</GPH> 23682 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules (e) Fishes. * * * * jbell on DSK3GLQ082PROD with PROPOSALS2 Carolina madtom (Noturus furiosus) (1) Critical habitat units are depicted for Durham, Edgecombe, Franklin, Granville, Halifax, Jones, Johnston, Nash, Orange, Vance, Warren, and Wilson Counties, North Carolina, on the maps below. (2) Within these areas, the physical or biological features essential to the conservation of Carolina madtom 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 native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of silt-free gravel, small cobble, coarse sand, and leaf litter substrates) as well as abundant cover used for nesting. (ii) Adequate flows, or a hydrologic flow regime (which includes the VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 severity, frequency, duration, and seasonality of discharge over time), necessary to maintain instream 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 fish’s habitat, food availability, and ample oxygenated flow for spawning and nesting habitat. (iii) Water 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) Aquatic macroinvertebrate prey items, which are typically dominated by larval midges, mayflies, caddisflies, dragonflies, and beetle larvae. (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [EFFECTIVE DATE OF THE FINAL RULE]. (4) Critical habitat map units. Data layers defining map units were created PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 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 Natural Heritage program’s 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 http://www.regulations.gov under Docket No. FWS–R4–ES–2018–0092 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: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.011</GPH> * 23683 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (6) Unit 1: TAR1–Upper Tar River, Franklin, Granville, and Vance Counties, North Carolina. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 (i) This unit consists of 26 river miles (42 river kilometers) of habitat in the Upper Tar River from the confluence with Sand Creek to the confluence with PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 Sycamore Creek. Unit 1 includes stream habitat up to bank full height. (ii) Map of Unit 1 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.012</GPH> 23684 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 (i) This unit consists of 66 river miles (106 river kilometers) of occupied habitat in Sandy and Swift Creeks, located downstream from NC561 to the PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 confluence with the Tar River. Unit 2 includes stream habitat up to bank full height. (ii) Map of Unit 2 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.013</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (7) Unit 2: TAR2–Sandy/Swift Creek, Edgecombe, Franklin, Halifax, Nash, Vance, and Warren Counties, North Carolina. 23685 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (8) Unit 3: TAR3–Fishing Creek Subbasin, Edgecombe, Franklin, Halifax, Nash, and Warren Counties, North Carolina. VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 (i) This unit consists of 86 river miles (138 river kilometers) of habitat in Fishing Creek from the confluence with Hogpen Branch to the confluence with the Tar River, and Little Fishing Creek PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 from Medoc Mountain Road (SR1002) to the confluence with Fishing Creek. Unit 3 includes stream habitat up to bank full height. (ii) Map of Unit 3 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.014</GPH> 23686 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Upper Neuse River extending from Eno River State Park downstream of NC70 to the confluence with Cabin Creek near Falls Lake impoundment. Unit 4 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 includes stream habitat up to bank full height. (ii) Map of Unit 4 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.015</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (9) Unit 4: NR1–Upper Neuse River Subbasin (Eno River), Durham and Orange Counties, North Carolina. (i) This unit consists of 20 river miles (32 river kilometers) of habitat in the 23687 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (10) Unit 5: NR2–Little River, Johnston County, North Carolina. (i) This unit consists of 28 river miles (45 river kilometers) of habitat in the VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Upper and Lower Little River from NC42 to the Johnston/Wayne County PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 line. Unit 5 includes stream habitat up to bank full height. (ii) Map of Unit 5 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.016</GPH> 23688 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 Contentnea Creek from Buckhorn Reservoir to Wiggins Mill Reservoir. PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 Unit 6 includes stream habitat up to bank full height. (ii) Map of Unit 6 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.017</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 (11) Unit 6: NR3–Contentnea Creek, Wilson County, North Carolina. (i) This unit consists of 15 river miles (24 river kilometers) of habitat in 23689 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS2 (12) Unit 7: TR1–Trent River, Jones County, North Carolina. (i) This unit consists of 15 river miles (24 river kilometers) of unoccupied VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 habitat in the Trent River between the confluence with Cypress Creek and PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 Beaver Creek. Unit 7 includes stream habitat up to bank full height. (ii) Map of Unit 7 follows: E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.018</GPH> 23690 Federal Register / Vol. 84, No. 99 / Wednesday, May 22, 2019 / Proposed Rules * * * * 23691 Dated: April 2, 2019. Margaret E. Everson, Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service. * [FR Doc. 2019–10379 Filed 5–21–19; 8:45 am] VerDate Sep<11>2014 18:06 May 21, 2019 Jkt 247001 PO 00000 Frm 00049 Fmt 4701 Sfmt 9990 E:\FR\FM\22MYP2.SGM 22MYP2 EP22MY19.019</GPH> jbell on DSK3GLQ082PROD with PROPOSALS2 BILLING CODE 4333–15–P

Agencies

[Federal Register Volume 84, Number 99 (Wednesday, May 22, 2019)]
[Proposed Rules]
[Pages 23644-23691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10379]



[[Page 23643]]

Vol. 84

Wednesday,

No. 99

May 22, 2019

Part II





Federal Reserve System





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





12 CFR Part 43





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





Department of the Interior





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





Fish and Wildlife Service

50 CFR Part 17





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





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Neuse River Waterdog and Endangered 
Species Status for Carolina Madtom and Proposed Designations of 
Critical Habitat; Proposed Rule

Federal Register / Vol. 84 , No. 99 / Wednesday, May 22, 2019 / 
Proposed Rules

[[Page 23644]]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0092; 4500030113]
RIN 1018-BC28


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Neuse River Waterdog and Endangered 
Species Status for Carolina Madtom and Proposed Designations of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list two North Carolina species, the 
Neuse River waterdog (Necturus lewisi) and the Carolina madtom (Noturus 
furiosus), as endangered or threatened under the Endangered Species Act 
of 1973, as amended (Act). The Neuse River waterdog is an aquatic 
salamander. The Carolina madtom is a freshwater fish. After review of 
the best available scientific and commercial information, we find that 
listing both species is warranted. Accordingly, we propose to list the 
Neuse River waterdog as a threatened species with a rule issued under 
section 4(d) of the Act (``4(d) rule'') and the Carolina madtom as an 
endangered species under the Act. If we finalize this rule as proposed, 
it would add these species to the List of Endangered and Threatened 
Wildlife and extend the Act's protections to both species. We also 
propose to designate critical habitat for both species under the Act. 
In total, approximately 738 river miles (1,188 river kilometers) in 16 
units in North Carolina fall within the boundaries of the proposed 
critical habitat designation for the Neuse River waterdog. 
Approximately 257 river miles (414 river kilometers) in 7 units in 
North Carolina are being proposed as critical habitat for the Carolina 
madtom. Finally, we announce the availability of a draft economic 
analysis of the proposed critical habitat designations.

DATES: We will accept comments received or postmarked on or before July 
22, 2019. 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 July 8, 2019.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0092, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
check the Proposed Rules 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-2018-0092, 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 http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, 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 http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0092, 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 http://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: 

Supporting Documents

    A species status assessment (SSA) team prepared SSA reports for the 
Neuse River waterdog and the Carolina madtom. The SSA team was composed 
of Service and North Carolina Wildlife Resources Commission biologists, 
in consultation with other species experts. The SSA reports represent 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 
each species. Both SSA reports underwent independent peer review by 
scientists with expertise in fish or amphibian biology, habitat 
management, and stressors (factors negatively affecting the species) to 
the species. The SSA reports and other materials relating to this 
proposal can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket 
No. FWS-R4-ES-2018-0092.

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.
    What this document does. We propose the listing of the Neuse River 
waterdog as a threatened species with a rule under section 4(d) of the 
Act and the Carolina madtom as an endangered species under the Act, and 
we propose the designation of critical habitat for both species.
    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 both species. 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

[[Page 23645]]

the effects of climate change (Factor E). There are no existing 
regulatory mechanisms that are adequate to reduce these threats so that 
the species does not warrant listing (Factor D).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the extent prudent and determinable. Section 4(b)(2) of the Act states 
that the Secretary will make the designation on the basis of the best 
available scientific data after taking into consideration the economic 
impact, the impact on national security, and any other relevant impact 
of specifying any particular area as critical habitat. Section 3(5) of 
the Act defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed if such areas are essential to the conservation of the species.
    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 13 appropriate specialists regarding the SSA reports, which 
informed this proposed rule. The purpose of peer review is to ensure 
that the science behind our listing determinations, the critical 
habitat designations, and 4(d) rule are based on scientifically sound 
data, assumptions, and analyses. The peer reviewers have expertise in 
the biology, habitat, and stressors to the species.

Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of these 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 these species, their 
habitats, 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 these 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 these species, 
including the locations of any additional populations of either 
species.
    (5) Information on activities that are necessary and advisable for 
the conservation of the Neuse River waterdog 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.
    (a) Additional provisions the Service may wish to consider for a 
4(d) rule in order to conserve, recover, and manage the Neuse River 
waterdog, such as the best management practices used in agriculture.
    (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 Neuse River waterdog or Carolina 
madtom 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.
    (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.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot

[[Page 23646]]

guarantee that we will be able to do so. We will post all hardcopy 
submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Raleigh Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Public Hearing

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

Previous Federal Actions

    On April 20, 2010, we received a petition from Center for 
Biological Diversity and others to list 404 aquatic species in the 
southeastern United States, including the Neuse River waterdog and the 
Carolina madtom. In response to the petition, we completed a partial 
90-day finding on September 27, 2011 (76 FR 59836), in which we stated 
that the petition contained substantial information that listing may be 
warranted for both species. We conducted a status review for each 
species. This proposed listing rule also constitutes our 12-month 
petition findings for the two species.

I. Proposed Listing Determination

Background

Neuse River Waterdog

    A thorough review of the taxonomy, life history, and ecology of the 
Neuse River waterdog (Necturus lewisi) is presented in the SSA Report 
Version 1.1.
    The Neuse River waterdog is a permanently aquatic salamander 
species endemic to the Tar-Pamlico and Neuse River drainages in North 
Carolina. The species occurs in riffles, runs, and pools in medium to 
large streams and rivers with moderate gradient in both the Piedmont 
and Coastal Plain physiographic regions. Neuse River waterdogs are from 
an ancient lineage of permanently aquatic salamanders in the genus 
Necturus, one of three species of Necturus in North Carolina.
    Neuse River waterdogs have a reddish brown skin with black spots, 
reaching up to 9 inches (in) in length as adults. Their underside is 
brownish grey, and they have external bushy dark red gills. They eat 
large aquatic arthropods, any aquatic and terrestrial invertebrates, 
and even some vertebrates like small fish. Like most waterdogs, they 
are opportunistic feeders who lie in wait for a small organism to swim 
or float by. All prey are ingested whole, and larger items are 
sometimes regurgitated and then re-swallowed.
    Neuse River waterdogs are found in streams ranging from larger 
headwater streams in the Piedmont to coastal streams up to the point of 
saltwater intrusion. None have been found in lakes or ponds. They are 
usually found in streams wider than 15 meters (m), deeper than 100 
centimeters (cm), and with a main channel flow rate greater than 10cm/
second. Further, they need clean, flowing water characterized by high 
dissolved oxygen concentrations. The preferred habitats vary with the 
season, temperature, dissolved oxygen content, flow rate and 
precipitation; however, the waterdogs maintain home retreat areas under 
rocks, in burrows, or under substantial cover in backwater or eddy 
areas.
    Longevity of Neuse River waterdogs is not known; however, their 
close relative N. maculosus may live for 30+ years. Like many long-
lived animals, breeding is delayed until a minimum body size is reached 
and they tend to grow slowly. Generation time for Neuse River waterdogs 
is 10-15 years. They breed once per year, with mating in the fall or 
winter and spawning in the spring. Females lay a clutch of about 25-90 
eggs under large rocks with sand and gravel beneath them and then guard 
the rudimentary nest.

Carolina Madtom

    A thorough review of the taxonomy, life history, and ecology of the 
Carolina madtom (Noturus furiosus) is presented in the SSA Report.
    The Carolina madtom is a moderate-sized catfish with a short, 
chunky body and a distinct color pattern of three dark saddles and a 
wide black stripe along its side. Furiosus means ``mad'' or ``raging,'' 
as the Carolina madtom is the most strongly armed of the North American 
catfishes with stinging spines containing a potent poison in their 
pectoral fins. They are found in medium to large flowing streams of 
moderate gradient in both the Piedmont and Coastal Plain physiographic 
regions in the Neuse and Tar River basins. Suitable instream habitats 
are described as riffles, runs, and pools with current, and during the 
warm months the madtoms are found in or near swift current at depths of 
1 to 3 feet (.3 to .9 meters). Stream bottom substrate composition is 
important for benthic Carolina madtoms; leaf litter, sand, gravel, and 
small cobble are all common substrates associated with the species, 
although it is most often found over sand mixed with pea-sized gravel 
and leaf litter. During the breeding season, Carolina madtoms shift to 
areas of moderate to slow flow with abundant cover used for nesting.
    The nesting season extends from about mid-May to late July. Nest 
sites are often found under or in relic freshwater mussel shells, under 
large pieces of water-logged tree bark, or in discarded beverage 
bottles and cans partially buried on the stream bottom. The female 
produces about 80 to 300 eggs, and the male guards the nest until the 
eggs hatch. Clutch sizes average 152 larvae, and life expectancy for 
these fish is at least 4 years.
    The Carolina madtom is a bottom-dwelling insectivore that feeds 
primarily during the night, with peaks at dawn and dusk. More than 95 
percent of the food organisms in the Carolina madtom stomachs were 
larval midges, mayflies, caddisflies, dragonflies, and beetle larvae 
(Burr et al. 1989, p. 78).

Summary of Biological Status and Threats

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations in title 50 of the Code of Federal 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.

[[Page 23647]]

    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 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. The SSA reports 
document the results of our comprehensive biological status review for 
each species, including an assessment of the potential stressors to the 
species. They do 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. They do, however, provide the scientific basis 
that informs our regulatory decisions, 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 reports; the full SSA reports can be found 
on the Southeast Region website at https://www.fws.gov/southeast/ and 
at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0092.

Summary of Analysis

    To assess Neuse River waterdog and Carolina madtom viability, we 
used the three conservation biology principles of resiliency, 
representation, and redundancy (together, the 3 Rs) (Shaffer and Stein 
2000, pp. 306-310). Briefly, resiliency supports the ability of the 
species to withstand environmental and demographic stochasticity (for 
example, wet or dry, warm or cold years); representation supports the 
ability of the species to adapt over time to long-term changes in the 
environment (for example, climate changes); and redundancy supports 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 species' 
life-history needs. The next stage involved an assessment of the 
historical and current condition of the species' demographics and 
habitat characteristics, including an explanation of how the species 
arrived at its current condition. The final stage of the SSA involved 
making 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 utilize 
this information to inform our regulatory decision.

Neuse River Waterdog

    To evaluate the current and future viability of the Neuse River 
waterdog, we assessed a range of conditions to allow us to consider the 
species' resiliency, representation, and redundancy. For the purposes 
of this assessment, populations were delineated using the three river 
basins that Neuse River waterdogs have historically occupied (i.e., 
Tar-Pamlico, Neuse, and Trent River basins). Because the river basin 
level is at a very coarse scale, populations were further delineated 
using Management Units (MUs). MUs were defined as one or more HUC10 
(hydrologic unit code) watersheds that species experts identified as 
most appropriate for assessing population-level resiliency.
    To assess resiliency, we analyzed MU occupancy over time and site 
occupancy over time (``population factors'') as well as four habitat 
elements that were determined in our analysis of the species' needs to 
have the most influence on the species: Water quality, water quantity, 
substrate, and habitat connectivity (``habitat elements''). We then 
assessed the overall condition of each population. Overall population 
condition rankings were determined by combining the two population 
factors and four habitat elements. For a more detailed explanation of 
the condition categories, see Table 1, below.
    Representation for the Neuse River waterdog can be described in 
terms of the size and range of the river systems it inhabits (medium 
streams to large rivers in three river basins), and physiographic 
variability (Piedmont and Coastal Plain). High redundancy for Neuse 
River waterdog is defined as multiple resilient populations (inclusive 
of multiple, resilient MUs) distributed throughout the species' 
historical range. That is, highly resilient populations, coupled with a 
relatively broad distribution, have a positive relationship to species-
level redundancy.

[[Page 23648]]



         Table 1--Population and Habitat Characteristics Used To Create Condition Categories for Resiliency Assessment for Neuse River Waterdog
                                      [MU = Management Unit; HUC10 = hydrologic unit code; ARA = active river area]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Population factors                                             Habitat elements
                            ----------------------------------------------------------------------------------------------------------------------------
     Condition category                                                                                                                 Instream habitat
                                MU occupancy       Site occupancy        Water quality          Water quantity         Connectivity       (substrate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
High.......................  <10% decline or a   <10% decline in    Very few (if any)       Optimal flowing water   Very little (if    Predominantly
                              positive increase   site occupancy     known impairment or     conditions to remove    any) known         natural (>70%
                              in occupied         over time.         contaminant problems    fine sediments, allow   habitat            forested) ARA;
                              HUC10s over time.                      (<5 miles impaired      for food delivery,      fragmentation      <6% impervious
                                                                     streams; no major       and maximize            issues (<10 dams   surfaces in
                                                                     discharges, <10 non-    reproduction; no        per MU; avg # of   HUC10 watershed.
                                                                     major discharges).      known flow issues;      Road Crossings
                                                                                             isolated low flow/      <300 per MU).
                                                                                             drought periods; not
                                                                                             flashy flow regime.
Moderate...................  11-30% decline in   11-30% decline in  Impairment or           Water flow not          Some habitat       20-70% forested
                              occupied HUC10s     site occupancy     contaminants known to   sufficient to           fragmentation      ARA; 6-15%
                              over time.          over time.         be an issue, but not    consistently remove     issues (10-30      impervious
                                                                     at a level to put       fine sediments,         dams per MU; Avg   surfaces in
                                                                     population at risk of   drying conditions       # of Road          HUC10 watershed.
                                                                     being eliminated (5-    which could impact      Crossings 300-
                                                                     50 miles impaired       both food delivery      500 per MU).
                                                                     streams; 1-3 major      and successful
                                                                     discharges; 10-25 non-  reproduction;
                                                                     major discharges.       moderate flow issues,
                                                                                             including 3 to 4
                                                                                             years of consecutive
                                                                                             drought or moderately
                                                                                             flashy flows.
Low........................  31-70% decline in   31-70% decline in  Impairment or           Water not flowing--     Habitat severely   <20% forested
                              occupied HUC10s     site occupancy     contaminants at         either inundated or     fragmented (30+    ARA; >15%
                              over time.          over time.         levels high enough to   dry; severe flow        dams in MU; 500+   impervious
                                                                     put the population at   issues; more than 4     Avg Road           surfaces in
                                                                     risk of being           consecutive years of    Crossings per      HUC10 watershed.
                                                                     eliminated (>50 miles   drought; flashy flow    MU).
                                                                     impaired streams; >4    regime.
                                                                     major discharges; 25+
                                                                     non-major discharges).
Very Low...................  >70% decline in     >70% decline in    Impairment or           Flow conditions do no   Habitat extremely  Instream habitat
                              occupied HUC10s     site occupancy     contaminant at levels   support species         fragmented and     unable to
                              over time.          over time.         that cannot support     survival.               unable to          support species
                                                                     species survival.                               support species    survival.
                                                                                                                     survival.
                             Total Loss........  Total Loss.......  N/A...................  N/A...................  N/A..............  N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Current Condition of Neuse River Waterdog
    The historical range of the Neuse River waterdog included 3rd and 
4th order streams and rivers in the Tar, Neuse, and Trent drainages 
(basins), with documented historical distribution in 40 HUC10s in 9 MUs 
across the 3 populations. Currently, the Neuse River waterdog is extant 
in all nine identified MUs; however, within those MUs, it is presumed 
extirpated from 35 percent (14/40) of the historically occupied HUC10s, 
and another 25 percent of the streams are in low or very low condition. 
Of the nine occupied MUs, two (22%) are estimated to have high 
resiliency, three (33%) moderate resiliency, and four (45%) low 
resiliency. At the population level, one of three populations (Tar) is 
estimated to have moderate resiliency, and two (Neuse and Trent) are 
estimated to have low resiliency.
    We estimated that the Neuse River waterdog currently has moderate 
adaptive potential, primarily due to ecological representation in three 
river basins and two physiographic regions. The species retains nearly 
all of its known River Basin variability; however, the variability 
within the basins is reduced compared to historical distribution. In 
addition, compared to historical occupancy, the species currently 
retains moderate Physiographic Variability in the Coastal Plain (87%) 
and in the Piedmont (67%). However, the Piedmont has experienced 
significant declines in occupancy, with nearly half of the MUs losing 
species occurrence. Of the 16 historically occupied Piedmont HUC10s, 7 
are no longer occupied, and 9 have experienced loss.
    The range of the Neuse River waterdog has always been very narrow, 
limited to the Tar, Trent, and Neuse River drainages. Within the 
identified representation areas (i.e., river basins), the species 
retains redundancy in terms of occupied HUC10s within the Tar River 
population (82%) and the Neuse River population (70%), although 67 
percent of redundancy has been lost in the Trent River population. 
Overall, the species has lost 27 percent (11 out of 40 historically 
occupied HUC10s) of its redundancy across its narrow, endemic range.

Carolina Madtom

    To evaluate the current and future viability of the Carolina 
madtom, we assessed a similar range of conditions as described above 
for Neuse River waterdog to allow us to consider the species' 
resiliency, representation, and redundancy. We assessed resiliency for 
the Carolina madtom using population factors (MU occupancy over time, 
approximate abundance, and recruitment) and habitat elements (water 
quality, water quantity, habitat connectivity, and instream substrate). 
Populations were delineated using the same three river basins that 
Carolina madtoms have historically occupied, namely the Tar-Pamlico, 
Neuse, and Trent River basins. As with the waterdog, populations were 
further delineated using MUs, again defined as one or more HUC10 
watersheds that species experts identified as the most appropriate unit 
for assessing population-level resiliency. Resiliency is characterized, 
and overall population condition rankings and habitat condition 
rankings were determined, in the same way as for the waterdog.
    Representation for the Carolina madtom can be described in terms of 
River Basin Variability (Tar, Trent, and Neuse River basins) and 
Physiographic Variability (eastern Piedmont and Coastal Plain). We 
assessed Carolina madtom redundancy by first evaluating occupancy 
within each of the hydrologic units (i.e., HUC10s) that constitute MUs, 
and then we evaluated occupancy at the MU and ultimately the population 
level.
Current Condition of Carolina Madtom
    The historical range of the Carolina madtom included three 
populations, one in each of the same three river basins in North 
Carolina as the Neuse River waterdog. The results of surveys conducted 
from 2011 to 2016 suggest that the currently occupied range of the 
Carolina madtom includes four MUs from two populations, corresponding 
to the Tar and Neuse River basins; however, only one population (Tar) 
has multiple documented occurrences within the past 5 years. The 
species has been extirpated from the southern portion of its range, 
including a large portion of the Neuse River basin and the

[[Page 23649]]

entire Trent River basin. The Carolina madtom currently occupies 8 of 
the 31 historically occupied HUC10s (with ``currently'' defined as the 
observation of at least one specimen from 2011 to 2016), 7 of which are 
in the Tar River Basin and 1 in the Neuse River Basin. At the 
population level, the overall current condition (= resiliency) was 
estimated to be moderate for the Tar population, very low for the Neuse 
population, and likely extirpated for the Trent population.
    We estimated that the Carolina madtom currently has low adaptive 
potential due to limited representation in two river basins and two 
physiographic regions. The species retains 33 percent of its known 
River Basin variability, considering greatly reduced variability 
observed in the Neuse River population. In addition, compared to 
historical occupancy, the species currently retains very limited 
physiographic variability in the Coastal Plain (14%) and moderate 
variability in the Piedmont (56%).
    The range of the Carolina madtom has always been very narrow, 
limited to the Tar, Trent, and Neuse River drainages. Within the 
identified representation areas, the species retains redundancy within 
the Tar River population (3 MUs currently extant); however, it has no 
redundancy (only 1 MU extant in the Neuse River population and no 
redundancy (extirpated) in the Trent River population. Overall, the 
species has lost 64 percent of its redundancy across its narrow, 
endemic range.

Risk Factors for Neuse River Waterdog and Carolina Madtom

    A multitude of natural and anthropogenic factors may impact the 
status of species within aquatic systems. 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 Neuse River waterdog and 
Carolina madtom involve habitat degradation from stressors influencing 
the four habitat elements: Water quality, water quantity, instream 
habitat, and habitat connectivity. All of these factors are exacerbated 
by the effects of climate change. 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 for each species.
Environmental Stressors

Development and Pollution

    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 stream-side) (Service 2018, p. 40).
    Urbanization increases the amount of impervious surfaces. 
``Impervious surface'' refers to all hard surfaces like paved roads, 
parking lots, roofs, and even highly compacted soils like sports 
fields. Impervious surfaces prevent the natural soaking of rainwater 
into the ground and slow seepage into streams. Instead, the rainwater 
accumulates and flows rapidly into storm drains, which drain as runoff 
to local streams. This degrades stream habitat in three ways: Water 
quantity (high flow during storms), water quality (pollutants washing 
into streams), and increased water temperatures due to the surfaces 
heating the water.
    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. 1,311). Water infrastructure 
development, including water supply, reclamation, and wastewater 
treatment, results in several pollution point discharges to streams.
    A major result of urbanization is road development. By its nature, 
road development increases impervious surfaces as well as land clearing 
and habitat fragmentation. Roads are generally associated with negative 
effects on the biotic integrity of aquatic ecosystems, including 
changes in surface water temperatures and patterns of runoff; 
sedimentation; and adding heavy metals (especially lead), salts, 
organics, ozone, and nutrients to stream systems (Trombulak and 
Frissell 2000, p. 18). These changes affect stream-dwelling organisms 
such as the Carolina madtom and Neuse River waterdog by displacing them 
from once-preferred habitats, as well as increasing exposure and 
assimilation of pollutants that can result in growth defects, decreased 
immune response, and even death. In addition, a possible major impact 
of road development is improperly constructed culverts at stream 
crossings. These culverts act as barriers, either because flow through 
the culvert varies significantly from the rest of the stream or because 
the culvert ends up being perched, so that aquatic organisms such as 
these species cannot pass through them.
    Carolina madtoms prefer clean water with permanent flow and are not 
tolerant of siltation and turbidity. Benthic fish, such as the madtom, 
have disproportionate rates of imperilment and extirpation due to 
pollution because stream bottoms are often the first habitats affected. 
Furthermore, the Carolina madtom is classified as an ``intolerant'' 
species according to the NC Division of Water Resources, meaning the 
species is most affected by environmental perturbations (NCDWR 2013, p. 
19).
    All three of the river basins within the range of the Carolina 
madtom are affected by development, from an average of 7 percent in the 
Tar River Basin to an average of 13 percent in the Neuse River Basin 
(based on the 2011 National Land Cover Data). For example, the Neuse 
River Basin contains one-sixth of the entire State's human population, 
indicating heavy development pressure on the watershed. The Middle 
Neuse MU contains 182 impaired stream miles, 9 major discharges, 272 
minor discharges, and nearly 4,000 road crossings, all affecting the 
quality of the habitat for both species. The Middle Neuse is also 31 
percent developed, with nearly 8 percent impervious surface, which 
changes natural streamflow, reduces appropriate stream habitat, and 
decreases water quality throughout the MU. For complete data on all of 
the populations, refer to appendices A and D of the SSA reports.
    Agricultural Practices: The main impacts to the Neuse River 
waterdog and Carolina madtom from agricultural practices, not following 
best management practices (BMPs) for conservation, are caused by 
nutrient and chemical pollution and by 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. 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 or groundwater. 
Confined animal feeding operations and feedlots can cause degradation 
of aquatic ecosystems, primarily because of manure management issues. 
Fertilized soils, manure, and livestock can be significant sources of 
nitrogen-based compounds like ammonia and nitrogen oxides. Ammonia can 
be harmful to aquatic life if large amounts are

[[Page 23650]]

deposited to surface waters. For fish like the Carolina madtom, excess 
ammonia can cause a number of problems, including alteration of 
metabolism, injury to gill tissue, and reduced growth rates. Extreme 
levels of ammonia can cause death.
    Excessive water withdrawal or water withdrawal done illegally 
(without the necessary permit, during dry times of year), may cause 
impacts to the amount of water available to downstream sensitive areas 
during low flow months, resulting in dewatering of channels and 
displacement of fish and aquatic salamanders, leading in turn to 
desiccation and death. According to the 2011 National Land Cover Data, 
all of the watersheds within the range of the Carolina madtom and Neuse 
River waterdog are affected by agricultural land uses, most with 25 
percent or more of the watershed having been converted for agricultural 
use.
    Forest Management: Silvicultural activities, when performed 
according to strict forest practices guidelines (FPGs) or 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, including 
North Carolina. 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 (Service 2018, 
p. 41). The clearing of large areas of forested wetlands and riparian 
systems can eliminate shade provided by forest canopies, exposing 
streams to more sunlight and increasing the in-stream water 
temperature. The increase in stream temperature and light after 
deforestation alters the macroinvertebrate and other aquatic species 
richness and abundance composition in streams. As stated above, both 
the Neuse River waterdog and Carolina madtom are sensitive to changes 
in temperature, and sustained temperature increases will stress and 
possibly lead to mortality for these species.
    Forestry activities often include the construction of logging roads 
through the riparian zone, and this can directly degrade nearby stream 
environments. Roads can cause point-source pollution and sedimentation, 
as well as sedimentation traveling downstream into more sensitive 
habitats. These effects lead to stress and mortality for both species, 
as discussed in ``Development,'' above. While BMPs are widely adhered 
to, they were not always common practice. The most recent surveys of 
Southeastern U.S. States show that the average implementation rate is 
at 92 percent, so while improper implementation is rare, it can have 
drastic negative effects on sensitive aquatic species. Further, many 
forestry activities do not require a permit for wetland or stream fill.
Systematic Changes
    Climate Change: Aquatic systems are encountering changes and shifts 
in seasonal patterns of precipitation and runoff as a result of climate 
change. While both of these species have evolved in habitats that 
experience seasonal fluctuations in discharge, global weather patterns 
(e.g., El Ni[ntilde]o or La Ni[ntilde]a) can have an impact on the 
normal regimes. Even during naturally occurring low flow events, 
amphibians and fish either become stressed because they exert 
significant energy to move to deeper waters or they may succumb to 
desiccation. Because low flows in late summer and early fall are 
stress-inducing, droughts during this time of year result in an 
increase in stress and, potentially, an increased rate of mortality.
    Droughts have impacted all river basins within the range of both 
species, from an ``abnormally dry'' ranking for North Carolina in 2001 
on the Southeast Drought Monitor scale to the highest ranking of 
``exceptionally dry'' for the entire range of both species in 2002 and 
2007. The 2015 drought data indicated that the entire Southeast was 
under conditions ranging from ``abnormally dry'' to ``moderate 
drought'' or ``severe drought.'' These data are from the first week in 
September, which as noted above is a very sensitive time for drought to 
be affecting both species. The Middle Neuse tributaries of the Neuse 
River basin had consecutive drought years in the period 2005-2012, 
indicating sustained stress on the species over a long period of time. 
Amphibians and fish have limited refugia from disturbances such as 
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 for both species. Increases 
in the frequency and strength of storm events, which are caused by 
climate change, alter stream habitat, either directly via 
channelization or clearing of riparian areas or indirectly via high 
streamflows 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 
Neuse River waterdogs and Carolina madtoms, as well as the host species 
on which the latter depend.
    Invasive Species: There are many areas across North Carolina where 
invasive species have invaded aquatic communities; are competing with 
native species for food, light, or breeding and nesting areas; and are 
impacting biodiversity. The flathead catfish is an invasive species 
that may have an impact on Neuse River waterdog and Carolina madtom 
distribution. The flathead catfish is an apex predator, known to 
influence native fish populations, including predation on benthic 
fishes, including madtoms, and it occurs in both the Neuse and Tar 
River basins. It is not known whether or not this fish also preys on 
waterdogs, but it is speculated that Neuse River waterdog inactivity 
during warmer months is in part due to the avoidance of large, 
predatory fishes (Braswell 2005, p. 870).
    Hydrilla (Hydrilla verticillata), an invasive aquatic plant, alters 
stream habitat, decreases flows, and contributes to sediment buildup in 
streams (NCANSMPC 2015, p. 57). High sedimentation can cause 
suffocation and reduce stream flow necessary for madtom survival. 
Hydrilla occurs in several watersheds where both species occur, and has 
been recently documented from the Neuse system and the Tar River. While 
there are no data to indicate that hydrilla currently has population-
level effects on these two species, its spread is expected to increase 
in the future.
    Dams and Barriers: Extinction of some North American freshwater 
fish can 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 fish and aquatic salamanders 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 
aquatic species. Dams have also been identified as causing genetic 
segregation or isolation in river systems--resident fish can no longer 
move freely through different habitats and may become genetically 
isolated from other fish populations throughout the river. Even

[[Page 23651]]

improperly constructed culverts at stream crossings can act as 
significant barriers, and have some similar effects as dams on stream 
systems. Fluctuating flows through the culvert can vary significantly 
from the rest of the stream, preventing fish passage and scouring 
downstream habitats. If a culvert ends up being perched above the 
stream bed, aquatic organisms cannot pass through it. All of the MUs 
containing Neuse River waterdogs and Carolina madtom populations have 
been impacted by dams, with as few as 11 dams in the Contentnea Creek 
MU to 287 dams in the Middle Neuse MU.
    Energy Production and Mining: The Neuse River waterdog and its 
habitat face impacts from oil and gas production, coal power, 
hydropower, and the use of biofuels. Coal mined from other States is 
used for energy production in North Carolina. Damage to fish and 
wildlife from exposure to coal ash slurry ranges from physiological, 
developmental, and behavioral toxicity to major population- and 
community-level changes. Coal-combustion residue contamination of 
aquatic habitats can result in the accumulation of metals and trace 
elements in larval amphibians, including arsenic, cadmium, chromium, 
copper, mercury, lead, selenium, and vanadium, potentially leading to 
developmental, behavioral, and physiological effects (Rowe et al. 2002, 
entire). As recently as October 2016, Neuse River waterdogs in the 
Neuse River were exposed to coal ash slurry when Hurricane Matthew 
caused inundation of coal ash storage ponds. Coal-fired power plants 
pump large volumes of water to produce electricity and aquatic 
organisms such as larval waterdogs can be pulled in and killed unless 
measures are sufficient to keep organisms from being impacted. After 
water is used for electricity production, it is returned to surface 
waters, but the temperature can be considerably higher than the 
temperature of the stream, reducing the ability of the species to 
spawn.
    Hydropower as a domestic energy source is becoming more prevalent 
in North Carolina, including areas where the Neuse River waterdog 
occurs. Like other impoundments, streams and rivers impounded by 
hydropower dams are changed from lotic systems to lentic systems, 
fragmenting habitats and disrupting movements and migrations of fish 
and other aquatic organisms like the Neuse River waterdog. Downstream 
water quality can also suffer from low dissolved oxygen levels and 
altered temperatures. In addition, hydropower generation can 
significantly change flow regimes downstream of hydropower dams, and 
can affect other riverine processes, such as sediment transport, 
nutrient cycling, and woody debris transport.
    Potential impacts to both species from oil and gas extraction are 
numerous; they include water quality and water quantity impacts, 
riparian habitat fragmentation and conversion, increased sand mining 
(used in oil and gas extraction), and increased road and utility 
corridors. While oil and gas extraction currently does not, and likely 
will not, occur in the Tar River Basin due to lack of subsurface shale 
deposits, impacts from shale gas extraction could occur in the Neuse 
River Basin (Service 2018, p. 46). Future impacts from oil and gas 
exploration and production are certain, as North Carolina has recently 
begun to allow fracking operations to drill for natural gas State-wide.
Synergistic Effects
    In addition to individually impacting the species, it is likely 
that several of the above summarized risk factors are acting 
synergistically or additively on both species. The combined impact of 
multiple stressors is likely more harmful than a single stressor acting 
alone. For example, in the Middle Neuse MU, there are 182 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 9 major and 272 minor discharges within this MU, 
along with 287 dams, almost 4,000 road crossings, and droughts recorded 
for 3 consecutive years in 2008-2010. For example, if a small but 
improperly installed culvert at a road crossing prevents fish from 
moving up or downstream, the fish would not be able to escape to deeper 
areas of the stream during droughts. Similarly, a discharge into a 
stream has more impact on aquatic species if there are no precipitation 
events immediately following to help flush the system. These 
combinations of stressors on the sensitive aquatic species in this 
habitat likely impact both species more severely in combination than 
any one factor alone.
    In our analysis of the factors affecting both of these species, we 
found that there are no existing regulatory mechanisms that adequately 
address threats to both species such that they do not warrant listing 
under the Act (Factor D). We found no evidence of population- or 
species-level impacts from overutilization for commercial, 
recreational, scientific, or educational purposes (Factor B). Nor was 
there any evidence to support that there are impacts due to disease or 
predation (Factor C).

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, State, and university biologists are surveying and monitoring 
species occurrences; and recently there has been increased interest in 
efforts to consider captive propagation and species population 
restoration via augmentation, expansion, and reintroduction efforts. 
However, some of these programs are in their infancy, and none covers 
enough area to provide species-level protection at a scale such that 
the species would not warrant listing under the Act.

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 
address uncertainty associated with the degree and extent of potential 
future stressors and their impacts on species' requisites, the 3Rs were 
assessed using four plausible future scenarios. These scenarios were 
based, in part, on the results of urbanization and climate models that 
predict changes in habitat used by the Neuse River waterdog and the 
Carolina madtom. We devised scenarios by eliciting expert information 
on the primary stressors, urbanization and climate change. The models 
that were used to forecast both of these factors projected 50 years 
into the future. Using the best available data to forecast plausible 
future scenarios allows the Service to determine if a species may 
become an endangered species in the foreseeable future. Relatively long 
life spans, well-developed downscaled climate models specific to the 
region, and good growth data available for the Southeast region provide 
some confidence in the range of outcomes predicted over 50 years. 
Beyond that timeframe, there is too much uncertainty in threats that 
will be occurring on the landscape and how the species may respond to 
those threats. For more detailed information on these models and their 
projections, please see the SSA reports (Service, 2017).
    In scenario one, the ``Status Quo'' scenario, factors that 
influence current populations of the Neuse River waterdog and the 
Carolina madtom were assumed to follow current trends over the 50-year 
time horizon. Climate

[[Page 23652]]

models predict that, if emissions continue at current rates, the 
Southeast will experience an increase in low flow (drought) events 
(IPCC 2013, p. 7). Likewise, this scenario assumed the `business as 
usual' pattern of urban growth, which predicts that urbanization will 
continue to increase rapidly (Terando et al. 2014, p. 1). 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 assumed that 
current conservation efforts would remain in place but that no new 
actions would be taken.
    In scenario two, the ``Pessimistic'' scenario, factors that 
negatively influence Neuse River waterdog and the Carolina madtom 
populations get worse; reflecting Climate Model RCP8.5 (Wayne 2013, p. 
11), effects of climate change are expected to be magnified beyond what 
is experienced in the ``Status Quo'' scenario. These predicted effects 
include extreme heat, more storms and flooding, and exacerbated drought 
conditions (IPCC 2013, p. 7). Based on the results of the SLEUTH BAU 
model (Terando et al. 2014, entire), urbanization in the relevant 
watersheds could expand to triple the amount of developed area, 
resulting in large increases of impervious surface cover and, 
potentially, consumptive water use. Increased urbanization and climate 
change effects are likely to result in increased impacts to water 
quality, water flow, and habitat connectivity, and we predict that 
there is limited capacity for species restoration under this scenario.
    Scenario three is labeled the ``Optimistic'' scenario, and factors 
that influence population and habitat conditions of the Neuse River 
waterdog and the Carolina madtom are expected to be somewhat improved. 
Reflecting Climate Model RCP2.6 (Wayne 2013, p. 11), climate change 
effects are predicted to be minimal under this scenario and would not 
include increased temperatures, and storms or droughts are as set forth 
in the ``Status Quo'' and ``Pessimistic'' scenario predictions. 
Urbanization is also predicted to have less impact in this scenario, as 
reflected by effects that are slightly lower than BAU model predictions 
(Terando et al. 2014; Table 5-1). Because water quality, water flow, 
and habitat impacts are predicted to be less severe in this scenario as 
compared to others, it is expected that the species will maintain or 
have a slightly positive response. Targeted permanent protection of 
riparian areas is a potential conservation activity that could benefit 
these species, and current efforts are considered successful as part of 
the Optimistic Scenario.
    In scenario four, the ``Opportunistic'' scenario, those landscape-
level factors (e.g., development and climate change) that are 
influencing populations of the Neuse River waterdog and the Carolina 
madtom get moderately worse, reflecting Climate Change Model RCP4.5 
(Wayne 2013, p. 11) and SLEUTH BAU (Terando et al. 2014; Table 5-1). 
Effects of climate change are expected to be moderate, resulting in 
some increased impacts from heat, storms, and droughts (IPCC 2013, p. 
7). Urbanization in this scenario reflects the moderate BAU SLEUTH 
levels, indicating approximately double the amount of developed area 
compared to current levels. Overall, it is expected that the 
synergistic impacts of changes in water quality, flow, and habitat 
connectivity will negatively affect both species, although current land 
conservation efforts will benefit the species in some watersheds.

Determination

Neuse River Waterdog

    The historical range of the Neuse River Waterdog likely included 
all 3rd and 4th order streams and rivers throughout the Tar, Neuse, and 
Trent drainages, with documented historical distribution in nine MUs 
within three populations. Of those nine occupied MUs, two (22%) are 
estimated to have high resiliency, two (22%) moderate resiliency, and 
five (56%) low resiliency. Scaling up from the MU to the population 
level, one of three populations (the Tar population) was estimated to 
have moderate resiliency, and two (the Neuse and Trent populations) 
were characterized by low resiliency. In short, 60 percent of streams 
that were once part of the species' range are estimated to be in low 
condition or likely extirpated. The species is known to occupy streams 
in two physiographic regions, but it has lost physiographic 
representation with an estimated 43 percent loss in Piedmont watersheds 
and an estimated 13 percent loss in Coastal Plain watersheds.
    The Neuse River waterdog faces threats from declines in water 
quality, loss of stream flow, riparian and instream fragmentation, and 
deterioration of instream habitats (Factor A). These threats are 
expected to be exacerbated by continued urbanization (Factor A) and 
effects of climate change (Factor E). Given current and future 
decreases in resiliency, populations 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 Neuse River waterdog habitat conditions and population 
factors suggest reduced viability into the future. Under Scenario 1, 
the ``Status Quo'' option, a loss of resiliency, representation, and 
redundancy is expected. Under this scenario, we predicted that no MUs 
would remain in high condition, two in moderate condition, four in low 
condition, and three MUs would be likely extirpated. Redundancy would 
be reduced to four MUs in the Tar Population and two in the Neuse 
Population. Representation would also be reduced, primarily with 
reduced variability in the Piedmont and Coastal Plain.
    Under scenario two, the ``Pessimistic'' option, we predicted 
substantial losses of resiliency, representation, and redundancy. 
Redundancy would be reduced to four MUs in one population, and the 
resiliency of that population is expected to be low. Several (5) MUs 
were predicted to be extirpated, and, of the remaining four MUs, all 
would be in low condition. All measures of representation are predicted 
to decline under this scenario, leaving remaining Neuse River waterdog 
populations underrepresented in river basin and physiographic 
variability.
    Under scenario three, the ``Optimistic'' option, we predicted 
slightly higher levels of resiliency, representation, and redundancy 
than was estimated under the Status Quo or Pessimistic options. Three 
MUs would be in high condition, one in moderate condition, and the 
remaining five would be in low condition. Despite predictions of 
population persistence in the Neuse and Trent River Basins, these 
populations are expected to retain only low levels of resiliency, thus 
levels of representation are also predicted to decline under this 
scenario.
    Finally, under scenario four, the ``Opportunistic'' option, we 
predicted reduced levels of resiliency, representation, and redundancy. 
One MU would be in high condition, three would be in moderate 
condition, three in low condition, and two would be likely extirpated. 
Redundancy would be reduced with the loss of the Trent population. 
Under the Opportunistic scenario, representation is predicted to be 
reduced with 67 percent of formerly occupied river basins remaining 
occupied and with reduced variability in the Piedmont and Coastal Plain 
Physiographic Regions. Both the

[[Page 23653]]

optimistic and opportunistic scenarios were determined to be 
``unlikely'' in the analysis, while the most likely scenarios were 
status quo and pessimistic. Under either of these more likely 
scenarios, resiliency is low in most of the remaining populations, many 
populations are likely extirpated so that redundancy and representation 
are significantly reduced. This expected reduction in both the number 
and distribution of resilient populations is likely to make the species 
vulnerable to catastrophic disturbance.

                          Table 2--Predicted Neuse River Waterdog Population Conditions Under Each of Four Plausible Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Future scenarios of population conditions
  Populations: Management units   ----------------------------------------------------------------------------------------------------------------------
                                          Current            #1 Status quo        #2 Pessimistic       #3 Optimistic             #4 Opportunistic
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tar: Upper Tar...................  Low.................  Likely Extirpated...  Likely Extirpated..  Low................  Likely Extirpated.
Tar: Middle Tar..................  Moderate............  Low.................  Low................  High...............  Moderate.
Tar: Lower Tar...................  High................  Moderate............  Low................  High...............  Moderate.
Tar: Sandy-Swift.................  High................  Moderate............  Low................  High...............  High.
Tar: Fishing Ck..................  Low.................  Low.................  Low................  Moderate...........  Moderate.
Neuse: Upper Neuse...............  Low.................  Likely Extirpated...  Likely Extirpated..  Low................  Low.
Neuse: Middle Neuse..............  Low.................  Low.................  Likely Extirpated..  Low................  Low.
Trent............................  Low.................  Likely Extirpated...  Likely Extirpated..  Low................  Likely Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Carolina Madtom

    The historical range of the Carolina madtom included 3rd and 4th 
order streams and rivers in the Tar, Neuse, and Trent drainages, with 
documented historical distribution in 11 MUs within 3 former 
populations, the Tar, Neuse, and Trent. The Carolina madtom is presumed 
extirpated from 64 percent (7) of the historically occupied MUs. Of the 
four MUs that remain occupied, one is estimated to have high 
resiliency, one with moderate resiliency, one with low resiliency, and 
one with very low resiliency. Scaling up from the MU to the population 
level, the Tar population is estimated to have moderate resiliency, the 
Neuse population is characterized by very low resiliency, and the Trent 
population is presumed to be extirpated. Of streams that were once part 
of the species' range, 82 percent are estimated to be in low condition 
or likely extirpated. Once known to occupy streams in two physiographic 
regions, the species has also lost substantial physiographic 
representation with an estimated 44 percent loss in Piedmont watersheds 
and an estimated 86 percent loss in Coastal Plain watersheds.
    Estimates of current resiliency for Carolina madtom are low, as are 
estimates for representation and redundancy. The Carolina madtom faces 
a variety of ongoing threats from declines in water quality, loss of 
stream flow, riparian and instream fragmentation, and deterioration of 
instream habitats (Factor A). This species also faces the threat of 
predation from the invasive flathead catfish (Factor C). These threats 
are expected to be exacerbated by continued urbanization (Factor A) and 
climate change (Factor E). Given current rates of resiliency, 
populations are vulnerable to extirpation from stochastic events, in 
turn, resulting in concurrent losses in representation and redundancy.
    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 Neuse River 
waterdog and the Carolina madtom meet either of these definitions, and 
find that Neuse River waterdog meets the definition of a threatened 
species, and Carolina madtom meets the definition of an endangered 
species.
    Neuse River waterdog. 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 Neuse River waterdog 
will continue to decline so it is likely to become in danger of 
extinction throughout all or a significant portion of the range within 
the foreseeable future.
    First, we considered whether the Neuse River waterdog is presently 
in danger of extinction and determined that proposing endangered status 
is not appropriate. The current conditions as assessed in the Neuse 
River waterdog SSA report show that the species exists in nine MUs over 
three different populations (river systems) over a majority (65 
percent) of the species' historical range. The Neuse River waterdog 
still exhibits representation across both physiographic regions, and 
extant populations remain across the range. In short, while the primary 
threats are currently acting on the species and many of those threats 
are expected to continue into the future, we did not find that the 
species is currently in danger of extinction throughout all of its 
range. However, according to our assessment of plausible future 
scenarios, the species is likely to become an endangered species in the 
foreseeable future throughout all of its range. Fifty years was 
considered ``foreseeable'' in this case because it included projections 
from both available models, and Neuse River waterdogs are a long-lived 
and slow-growing species. We can 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 over that timeframe.
    As discussed above, the range of plausible future scenarios of 
Neuse River waterdog habitat conditions and population factors suggest 
reduced viability into the future. Both the optimistic and 
opportunistic scenarios were determined to be ``unlikely'' in the 
analysis, while the most likely scenarios were status quo and 
pessimistic. Under either of these more likely scenarios, resiliency is 
low in most of the remaining populations, and many populations are 
likely extirpated so that redundancy and representation are 
significantly reduced. This expected reduction in both the number and

[[Page 23654]]

distribution of resilient populations is likely to make the species 
vulnerable to catastrophic disturbance.
    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 
Neuse River waterdog 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 are proposing to list the Neuse River 
waterdog as a threatened species across its entire range in accordance 
with sections 3 and 4(a)(1) of the Act.
    Carolina madtom. The current conditions as assessed in the Carolina 
madtom SSA report show that 64 percent of the management units over 
three populations (river systems) are presumed extirpated. The Carolina 
madtom currently has two of three remaining populations, but one of 
those populations (Neuse) is characterized by ``very low'' resiliency. 
Once known to occupy streams in two physiographic regions, the species 
has also lost substantial physiographic representation with an 
estimated 44 percent loss in Piedmont watersheds and an estimated 86 
percent loss in Coastal Plain watersheds. Resiliency, redundancy, and 
representation are all at levels that put the species at risk of 
extinction throughout its range now. We conclude that the species is 
currently in danger of extinction throughout all of its range. We find 
that a threatened species status is not appropriate for the Carolina 
madtom because the threats are ongoing currently and are expected to 
continue or worsen into the future. Because the species is already in 
danger of extinction throughout its range, a threatened status is not 
appropriate.
    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 
Carolina madtom is in danger of extinction 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 Carolina madtom as an 
endangered species across its entire range in accordance with sections 
3 and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries, and calls for recovery actions to be 
carried out for listed species. The protection required by Federal 
agencies and the prohibitions against certain activities are discussed, 
in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop 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 from endangered to threatened (``downlisting'') or 
removal from the List of Endangered and Threatened Wildlife or 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 outlines, draft recovery plans, and the final recovery plans 
will be available on our website (http://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

[[Page 23655]]

on private, State, and Tribal lands. If these species are listed, 
funding for recovery actions will be available from a variety of 
sources, including Federal budgets, State programs, and cost share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the State of North Carolina would be eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the Neuse River waterdog and Carolina madtom. Information 
on our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although the Neuse River waterdog and Carolina madtom are only 
proposed for listing under the Act at this time, please let us know if 
you are interested in participating in recovery efforts for these 
species. Additionally, we invite you to submit any new information on 
these species whenever it becomes available and any information you may 
have for recovery planning purposes (see FOR FURTHER INFORMATION 
CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph may include, but are not limited to, management and any other 
landscape-altering activities on Federal lands administered by the 
Service, 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.

II. Proposed Rule Issued Under Section 4(d) of the Act for the Neuse 
River Waterdog

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.
    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. For the 
reasons discussed below, the Service has determined to develop a 
specific rule under section 4(d) for the Neuse River waterdog.

Proposed 4(d) Rule

    Under this proposed 4(d) rule, all prohibitions and provisions of 
section 9(a)(1) of the Act would apply to the Neuse River waterdog, 
except that the following actions would not be prohibited:
    (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 composed 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 Neuse River waterdog and contain stable channel 
features, such as pools, glides, runs, and riffles, which could be used 
by the species 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 (BMPs), 
particularly for Streamside Management Zones, stream crossings, and 
forest roads; and
    (b) Comply with forest practice guidelines related to water quality

[[Page 23656]]

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:

http://www.ncasi.org/Downloads/Download.ashx?id=10204
http://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 Neuse River waterdog, 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 exempted from prohibition 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 section 
9(a)(1), 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.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act for 
Carolina madtoms and the proposed 4(d) rule above for Neuse River 
waterdog; this list is not comprehensive:
    (1) Unauthorized handling or collecting of the species;
    (2) Destruction or alteration of the species' habitat by discharge 
of fill material, dredging, snagging, impounding, channelization, or 
modification of stream channels or banks;
    (3) Destruction of riparian habitat directly adjacent to stream 
channels that causes significant increases in sedimentation and 
destruction of natural stream banks or channels;
    (4) Discharge of pollutants into a stream or into areas 
hydrologically connected to a stream occupied by the species;
    (5) Diversion or alteration of surface or ground water flow; and
    (6) Pesticide/herbicide applications in violation of label 
restrictions.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Raleigh 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

III. 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 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

[[Page 23657]]

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:
    (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.''
    As discussed above, we did not identify any imminent threat of take 
attributed to collection or vandalism for either the Neuse River 
waterdog or the Carolina madtom, and there is no indication that 
identification and mapping of critical habitat is likely to initiate 
any such threats. Therefore, in the absence of finding that the 
designation of critical habitat would increase threats to the species, 
if there are benefits to the species from a critical habitat 
designation, a finding that designation is prudent is appropriate.
    The potential benefits of designation may include: (1) Triggering 
consultation under section 7 of the Act, in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is unoccupied; (2) focusing conservation 
activities on the most essential features and areas; (3) providing 
educational benefits to State or county governments or private 
entities; and (4) preventing people from causing inadvertent harm to 
the protected species. Because designation of critical habitat would 
not likely increase the degree of threat to these species and may 
provide some measure of benefit, designation of critical habitat is 
prudent for both the Neuse River waterdog and Carolina madtom.

[[Page 23658]]

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for both 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) 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 both species and habitat characteristics where the species are 
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 Neuse River waterdog and 
Carolina madtom.

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 Neuse River waterdog and Carolina madtom from studies of both 
species' habitat, ecology, and life history. The primary habitat 
elements that influence resiliency of both species 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 reports; the individuals' needs are 
summarized below in Tables 3 and 4.

                      Table 3--Life History and Resource Needs of the Neuse River Waterdog
----------------------------------------------------------------------------------------------------------------
                                            Resources and/or
                                        circumstances needed for     Resource  function
             Life stage               INDIVIDUALS to complete each        (BFSD *)          Information source
                                               life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-June................   Clean, flowing       B                     --Pudney et al. 1985,
                                       water with moderate current                         p. 54.
                                       (~10-50 cm/sec).                                   --Cooper and Ashton
                                       Sexually mature                             1985, p. 5.
                                       males and females (~6 years                        --Braswell and Ashton
                                       old).                                               1985, p. 21.
                                       Appropriate                                -- Ashton 1985, p. 95.
                                       spawning temperatures (8-22
                                       [deg]C).
                                       Nest sites (large
                                       flat rocks with gravel
                                       bottoms).
                                       Adequate flow for
                                       oxygenation (7-9 ppm DO).
Hatchling--late summer..............   Clean, non-turbid,   B, S                  --Cooper and Ashton
                                       flowing water (~10-50 cm/                           1985, p. 5.
                                       sec).
                                       Adequate food
                                       availability.
Post-hatchling Larvae--1-2 inches      Clean, flowing       F, S                  --Ashton 1985, p. 95.
 long.                                 water (~10-50 cm/sec).
                                       Adequate food
                                       availability (opportunistic
                                       feeding; primarily
                                       invertebrates).
Juveniles--Up to 5.5-6.5 years; 2-4    Clean, flowing       F, S                  --Ashton 1985, p. 95.
 inches long.                          water (~10-50 cm/sec).                             --Braswell 2005, p.
                                       Adequate food                               867.
                                       availability (primarily
                                       invertebrates).
                                       Cover (large rocks/
                                       boulders, outcrops,
                                       burrows) for retreat areas.
Adults--6-30+ years--5-9 inches long   Clean, flowing       F, S, D               --Braswell and Ashton
                                       water deeper than 100 cm                            1985, pp. 13, 22, 28.
                                       with flows 10-50 cm/sec.                           --Ashton 1985, p. 95
                                       Streams >15m wide..                        --Braswell 2005, p.
                                       High dissolved                              868.
                                       oxygen (7-9 ppm).
                                       Appropriate
                                       substrate (hard clay bottom
                                       with leaf litter, gravel,
                                       cobble).
                                       Little to no
                                       siltation.
                                       Adequate food
                                       availability (aquatic and
                                       terrestrial invertebrates).
                                       Cover (large rocks/
                                       boulders, outcrops,
                                       burrows) for retreat areas.
----------------------------------------------------------------------------------------------------------------
*B = Breeding, F = Feeding, S = Sheltering, D = Dispersal.


[[Page 23659]]


                         Table 4--Life history and resource needs of the Carolina madtom
----------------------------------------------------------------------------------------------------------------
                                            Resources and/or
                                        circumstances needed for     Resource  function
             Life stage               INDIVIDUALS to complete each        (BFSD *)          Information source
                                               life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-July................   Clear, flowing       B                     --Burr et al. 1989, p.
                                       water.                                              75.
                                       Sexually mature
                                       males and females.
                                       Appropriate
                                       spawning temperatures.
                                       Nest sites (rocks,
                                       bottles, shells, cobble).
                                       Adequate flow for
                                       oxygenation.
Hatchling--late summer..............   Clear, flowing       B, S                  --Burr et al. 1989, p.
                                       water                                               78.
                                       Cohesive schooling
                                       behavior to avoid predation.
Juveniles--2-3 years; >2.5 inches      Clear, flowing       F, S                  --Burr et al. 1989, p.
 long.                                 water                                               78.
                                       Adequate food
                                       availability (midges,
                                       caddisflies, mayflies,
                                       etc.).
                                       Cover (shells,
                                       bottles, cans, tires, woody
                                       debris, etc.).
Adults--3+ years-->4 inches long....   Clear, flowing       F, S, D               --Burr et al. 1989, p.
                                       water 1 to 3 feet deep                              63
                                       Appropriate                                --Midway et al. 2010,
                                       substrate (leaf litter,                             p. 326.
                                       sand, gravel, cobble).
                                       Adequate food
                                       availability (midges,
                                       caddisflies, mayflies,
                                       etc.).
                                       Cover (shells,
                                       bottles, cans, tires, woody
                                       debris, etc.).
----------------------------------------------------------------------------------------------------------------
* 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 Neuse River waterdog from studies of 
this species' habitat, ecology, and life history as described above. 
Additional information can be found in the SSA Report (Service 2018) 
available on http://www.regulations.gov under Docket No. FWS-R4-ES-
2018-0092. We have determined that the following physical or biological 
features are essential to the conservation of Neuse River waterdog:
    (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 native aquatic 
fauna (such as, stable riffle-run-pool habitats that provide flow 
refuges consisting of silt-free gravel, small cobble, coarse sand, and 
leaf litter substrates) as well as abundant cover and burrows used for 
nesting.
    (2) Adequate flows, or a hydrologic flow regime (which includes the 
severity, frequency, duration, and seasonality of discharge over time), 
necessary to maintain instream 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 waterdog's 
habitat, food availability, and ample oxygenated flow for spawning and 
nesting habitat.
    (3) Water 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) Invertebrate and fish prey items, which are typically 
hellgrammites, crayfish, mayflies, earthworms, snails, beetles, 
centipedes, slugs, and small fish.
    We derive the specific physical or biological features essential to 
the conservation of Carolina madtom from studies of this species' 
habitat, ecology, and life history as described above. Additional 
information can be found in the SSA Report (Service 2018) available on 
http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0092. We 
have determined that the following physical or biological features are 
essential to the conservation of Carolina madtom:
    (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 native fish (such 
as stable riffle-run-pool habitats that provide flow refuges consisting 
of silt-free gravel, small cobble, coarse sand, and leaf litter 
substrates) as well as abundant cover used for nesting.
    (2) Adequate flows, or a hydrologic flow regime (which includes the 
severity, frequency, duration, and seasonality of discharge over time), 
necessary to maintain instream 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 fish's 
habitat, food availability, and ample oxygenated flow for spawning and 
nesting habitat.
    (3) Water 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) Aquatic macroinvertebrate prey items, which are typically 
dominated by larval midges, mayflies, caddisflies, dragonflies, and 
beetle larvae.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Neuse 
River waterdog and Carolina madtom 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

[[Page 23660]]

systems; (5) dams, culverts, and utility 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 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.

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 both species is much reduced from their 
historical distributions. We anticipate that recovery will require 
continued protection of existing populations and habitat, as well as 
ensuring there are adequate numbers of Neuse River waterdogs and 
Carolina madtoms 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 NC State University, the NC Wildlife Resources 
Commission, and the NC Natural Heritage Program 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 2018).

Areas Occupied at the Time of Listing

Neuse River Waterdog

    We identified stream channels that currently support populations of 
Neuse River waterdog. We defined ``currently'' as stream channels with 
observations of the species from 2010 to the present. Due to the 
breadth and intensity of survey effort done for amphibians throughout 
the known range of the species, it is reasonable to assume that streams 
with no positive surveys since 2010 should not be considered occupied 
for the purpose of our analysis.
    Specific occupied habitat areas were delineated based on Natural 
Heritage Element Occurrences (EOs) following NatureServe's occurrence 
delineation protocol for freshwater fish (NatureServe 2018). These EOs 
provide habitat for Neuse River waterdog 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 waterdogs can move between areas, at least during certain flows 
or seasons.
    Based on this information, we consider the following subbasins to 
be currently occupied by the species at the time of proposed listing: 
Upper, Middle, and Lower Tar River subbasins, Sandy-Swift Creek, 
Fishing Creek subbasin, Upper, Middle, and Lower Neuse River subbasins, 
and the Trent River (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.

Carolina Madtom

    We identified stream channels that currently support populations of 
Carolina madtom. As with the Neuse River waterdog, we defined 
``current'' as stream channels with observations of the species from 
2010 to the present. Due to the breadth and intensity of survey effort 
done for freshwater fish throughout the known range of the species, it 
is reasonable to assume that streams with no positive surveys since 
2010 should not be considered occupied for the purpose of our analysis.
    Specific habitat areas were delineated based on Natural Heritage 
Element Occurrences (EOs) following NatureServe's occurrence 
delineation protocol for freshwater fish (NatureServe 2018). These EOs 
provide habitat for Carolina madtom 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 fish 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: Upper Tar, Fishing Creek, Sandy-Swift 
Creek, and the Little River (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 Neuse River waterdog 
because we did not find any unoccupied areas that were essential for 
the conservation of the species. The protection of the nine currently 
occupied management units across the physiographic representation of 
the range would sufficiently reduce the risk of extinction, by 
improving the resiliency of populations in these currently occupied 
streams to increase viability to the point that the protections of the 
Act are no longer necessary.
    We are proposing three currently unoccupied units for the Carolina 
madtom that we determined to be essential for the conservation of the 
species. Carolina madtoms have been completely extirpated from the 
Trent River basin, four of the five Neuse River units, and two of the 
five Tar River basin management units. There is currently only one 
occupied management unit currently remaining in the Neuse River basin, 
and that population was found to be in ``very low'' condition in our 
resiliency analysis. Having at least three resilient

[[Page 23661]]

populations in both the Tar and Neuse River basins and at least one 
population in the Trent River basin is essential for the conservation 
of the Carolina madtom. Accordingly, we propose to designate one 
unoccupied unit in the Trent River basin and two in the Neuse River 
basin. Because there are already three populations in the Tar River 
basin, we do not consider an unoccupied unit in this basin to be 
essential for the species' conservation.

General Information on the Maps of the Proposed Critical Habitat 
Designation

    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 http://www.regulations.gov under 
Docket No. FWS-R4-ES-2018-0092, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT, above).
    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 Neuse River waterdog or 
Carolina madtom. 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.

Proposed Critical Habitat Designation

Neuse River Waterdog

    We are proposing to designate approximately 738 river mi (1,188 
river km) in 16 units in North Carolina as critical habitat for the 
Neuse River waterdog. All of the units are currently occupied by the 
species and contain some or all of the physical and biological features 
essential to the conservation of the species. All units may require 
special management considerations or protection to address 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. These 
stressors are primarily related to habitat changes: The buildup of fine 
sediments, the loss of flowing water, instream habitat fragmentation, 
and impairment of water quality; these are all exacerbated by climate 
change. Table 5 shows the name, land ownership of the riparian areas 
surrounding the units, and approximate river miles of the proposed 
designated units for the Neuse River waterdog. Because all streambeds 
are navigable waters, the actual critical habitat units are all owned 
by the State of North Carolina.

  Table 5--Proposed Critical Habitat Units for the Neuse River Waterdog
------------------------------------------------------------------------
                                                            River miles
     Critical habitat unit          Riparian ownership     (kilometers)
------------------------------------------------------------------------
Unit 1. TAR1-Upper Tar River...  Private; Easements.....      8.6 (13.8)
Unit 2. TAR2-Upper Fishing       Private; Easements.....     10.5 (16.9)
 Creek.
Unit 3. TAR3a-Fishing Creek      Private; Easements;          62.8 (101)
 Subbasin.                        State.
Unit 4. TAR3b-Sandy/Swift Creek  Private; Easements;          68.3 (110)
                                  State.
Unit 5. TAR3c-Middle Tar River   Private; Easements;           100 (161)
 Subbasin.                        State.
Unit 6. TAR3d-Lower Tar River    Private; Easements;         60.6 (97.5)
 Subbasin.                        State.
Unit 7. NR1-Eno River..........  Private; Easements;         41.5 (66.8)
                                  State.
Unit 8. NR2-Flat River.........  Private; Easements.....       17.4 (28)
Unit 9. NR3-Middle Creek.......  Private; Easements;          7.6 (12.2)
                                  Local.
Unit 10. NR4-Swift Creek.......  Private................     23.4 (37.7)
Unit 11. NR5a-Little River.....  Private; Easements.....      89.6 (144)
Unit 12. NR5b-Mill Creek.......  Private; Easements.....       19 (30.6)
Unit 13. NR5c-Middle Neuse       Private; State;               40 (64.4)
 River.                           Easements.
Unit 14. NR6-Contentnea Creek/   Private; Easements.....     117 (188.3)
 Lower Neuse River Subbasin.
Unit 15. NR7-Swift Creek (Lower  Private; Easements.....         10 (16)
 Neuse).
Unit 16. TR1-Trent River.......  Private................        62 (100)
                                                         ---------------
    Total......................  .......................     738 (1,188)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

Tar Population

Unit 1: TAR1-Upper Tar River
    Unit 1 consists of 8.6 river mi (13.8 river km) of the Upper Tar 
River in Granville County from approximately SR1004 (Old NC 75) 
downstream to NC 96. The riparian land adjacent to this unit is 
primarily privately owned (86%), with several conservation parcels or 
easements (14%).
Unit 2: TAR2-Upper Fishing Creek
    Unit 2 consists of 10.5 river mi (16.9 river km) of Upper Fishing 
Creek in Warren County. This unit extends from SR1118 (No Bottom Drive) 
downstream to NC58. The riparian land adjacent to the unit is primarily 
privately owned (94%) with several conservation parcels or easements 
(6%).
Unit 3: TAR3a-Fishing Creek Subbasin
    Unit 3 consists of approximately 63 river mi (101 river km) of 
lower Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of 
SR1214 (Silvertown Rd) downstream to the confluence with Fishing Creek, 
and

[[Page 23662]]

including the mainstem of Fishing Creek to the confluence with the Tar 
River in Halifax, Nash, and Edgecombe Counties. The riparian land 
adjacent to the unit includes private land (91%), several conservation 
parcels (6%), and State Game Lands (3%).
Unit 4: TAR3b-Sandy/Swift Creek
    Unit 4 consists of an approximately 68-river-mi (110-river-km) 
segment of Sandy Creek downstream of SR 1451 (Leonard Road) to the 
confluence with the Tar River, including Red Bud Creek downstream of 
the Franklin/Nash county line to the confluence with Swift Creek. This 
unit is located in Franklin, Nash, and Edgecombe Counties. The riparian 
land adjacent to this unit includes private lands (97%), conservation 
parcels (1%), and State Game Lands (2%).
Unit 5: TAR3c-Middle Tar River Subbasin
    Unit 5 consists of an approximately 100-river-mi (161-river-km) 
segment of the Middle Tar River from the confluence with Cedar Creek 
downstream to the confluence with Fishing Creek, including Stony Creek 
below SR1300 (Boddies' Millpond Rd), downstream to the confluence with 
the Tar River. This unit is located in Franklin, Nash, and Edgecombe 
Counties. The riparian land adjacent to this unit is nearly all private 
lands (99%), with less than 1% conservation parcels, local parks, and a 
research station.
Unit 6: TAR3d-Lower Tar River Subbasin
    Unit 6 consists of approximately 60 river mi (96.6 river km) in the 
Lower Tar River Subbasin from the confluence with Fishing Creek 
downstream to the confluence with Barber Creek near SR1533 (Port 
Terminal Road). This includes portions of Town Creek below NC111 to the 
confluence with the Tar River, Otter Creek below SR1251 to the 
confluence with the Tar River, and Tyson Creek below SR1258 to the 
confluence with the Tar River. This unit is located in Edgecombe and 
Pitt Counties. The riparian land adjacent to this unit consists of 
private land (97%), conservation parcels (2.5%), and State Game Lands 
(0.5%).

Neuse Population

Unit 7: NR1-Eno River
    Unit 7 consists of approximately 41.5 river mi (66.8 river km) of 
the Eno River from NC86 downstream to the inundated portion of Falls 
Lake in Orange and Durham Counties. The riparian land adjacent to this 
unit includes private lands (61%), State Park Lands (25%), local 
government conservation parcels (12%), and State Game Lands (2%).
Unit 8: NR2-Flat River
    Unit 8 is a 17.4-river-mi (28-river-km) segment of the Flat River 
from SR1739 (Harris Mill Road) downstream to the inundated portion of 
Falls Lake, located in Person and Durham Counties. The riparian land 
adjacent to this unit consists of some private land (49%) and extensive 
conservation parcels (51%), including demonstration forest, recreation 
areas, and State Game Lands.
Unit 9: NR3-Middle Creek
    Unit 9 is a 7.6-river-mi (12.2-river-km) stretch of Middle Creek 
from Southeast Regional Park downstream to the Interstate 40 crossing, 
located in Wake and Johnston Counties. The riparian land adjacent to 
this unit is predominantly privately owned (92%) with a few 
conservation parcels (8%).
Unit 10: NR4-Swift Creek (Middle Neuse)
    Unit 10 is a 23.35-river-mi (37.6-river-km) stretch of Swift Creek 
from NC42 downstream to the confluence with the Neuse River, located in 
Johnston County. The riparian land adjacent to this unit is entirely 
privately owned.
Unit 11: NR5a-Little River
    Unit 11 is an 89.6-river-mi (144.2-river-km) segment of the Little 
River from near NC96 downstream to the confluence with the Neuse River, 
including Buffalo Creek from NC39 to the confluence with Little River, 
located in Franklin, Wake, Johnston, and Wayne Counties. The riparian 
land adjacent to this unit is predominantly privately owned (90%) with 
some (10%) local municipal conservation parcels (Little River 
Reservoir).
Unit 12: NR5b-Mill Creek
    Unit 12 is an 18.7-river-mi (30-river-km) segment of Mill Creek 
from upstream of US701 downstream to the confluence with the Neuse 
River located in Johnston and Wayne Counties. The riparian land 
adjacent to this unit is predominantly privately owned (95%) with some 
conservation parcels (5%).
Unit 13: NR5c-Middle Neuse River
    Unit 13 is a 39.8-river-mi (64-river-km) segment of the Middle 
Neuse River from the confluence with Mill Creek downstream to the 
Wayne/Lenoir County line, located in Wayne County. The riparian land 
adjacent to this unit includes privately owned land (92%), conservation 
parcels (0.95%), State Park land (7%), and the Seymour Johnson Air 
Force Base (0.05%). The 2 miles of river segment located on the land 
owned by the Air Force Base is exempt from critical habitat under 
section 4(a)(3) of the Act (see Exemptions, below).
Unit 14: NR6-Contentnea Creek/Lower Neuse River Subbasin
    Unit 14 is an approximately 117-river-mi (188.3-river-km) reach, 
including Contentnea Creek from NC581 downstream to its confluence with 
the Neuse River, Nahunta Swamp from the Wayne/Greene County line to the 
confluence with Contentnea Creek, and the Neuse River from the 
confluence with Contentnea Creek to the confluence with Pinetree Creek, 
located in Greene, Wilson, Wayne, Lenoir, Pitt, and Craven Counties. 
The riparian land adjacent to this unit is nearly all privately owned 
land (99%), with <1% conservation parcels.
Unit 15: NR7-Swift Creek
    Unit 15 is a 10.13-river-mi (16.3-river-km) reach of Swift Creek 
from SR1931 (Beaver Camp Rd) downstream to SR1440 (Streets Ferry Rd) 
located in Craven County. The riparian land adjacent to this unit is 
nearly all privately owned (99%) with some conservation parcels (1%).

Trent Population

Unit 16: TR1-Trent River
    Unit 16 is a 62-river-mi (100-river-km) reach that includes Beaver 
Creek from SR1316 (McDaniel Fork Rd) to the confluence with the Trent 
River, and Trent River from the confluence with Poplar Branch 
downstream to SR1121 (Oak Grove Rd) crossing at the Marine Corps Cherry 
Point property, in Jones County. The riparian land adjacent to this 
unit is entirely privately owned.

Carolina Madtom

    We are proposing to designate approximately 257 river miles (414 
river kilometers) in 7 units in North Carolina as critical habitat for 
the Carolina madtom. Four of the units are currently occupied by the 
species and contain some or all of the physical and biological features 
essential to the conservation of the species. Three of the units are 
unoccupied but are essential to the conservation of the species. All 
units proposed may require special management considerations or 
protection to address 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

[[Page 23663]]

suitability. These stressors are primarily related to habitat changes: 
the buildup of fine sediments, the loss of flowing water, instream 
habitat fragmentation, and impairment of water quality; these are all 
exacerbated by climate change. Table 6 shows the name, land ownership 
of the riparian areas surrounding the units, and approximate river 
miles of the proposed designated units for the Carolina madtom. Because 
all streambeds are navigable waters, the actual critical habitat units 
are all owned by the State of North Carolina.

                        Table 6--Proposed Critical Habitat Units for the Carolina Madtom
----------------------------------------------------------------------------------------------------------------
                                                                                                     Length of
                                           Occupied  at the time of                                unit in river
         Critical habitat unit                      listing                Riparian ownership          miles
                                                                                                   (kilometers)
----------------------------------------------------------------------------------------------------------------
Unit 1. TAR1-Upper Tar River...........  Yes.........................  Private..................         26 (42)
Unit 2. TAR2-Sandy/Swift Creek.........  Yes.........................  Private; Easements.......        66 (106)
Unit 3. TAR3-Fishing Creek Subbasin....  Yes.........................  Private; Easements; State        86 (138)
Unit 4. NR1-Upper Neuse River Subbasin   No..........................  Easements; State; Private         20 (32)
 (Eno River).
Unit 5. NR2-Little River...............  Yes.........................  Private; Easements.......         28 (45)
Unit 6. NR3-Contentnea Creek...........  No..........................  Private..................         15 (24)
Unit 7. TR1-Trent River................  No..........................  Private..................         15 (24)
                                                                                                 ---------------
    Total..............................  ............................  .........................       257 (414)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

Tar Population

Unit 1: TAR1-Upper Tar River
    Unit 1 consists of 26 river mi (42 river km) of the Upper Tar 
River, from the confluence with Sand Creek to the confluence with 
Sycamore Creek, in Granville, Vance, and Franklin Counties. Unit 1 is 
occupied by the species and contains all of the physical and biological 
features essential to the conservation of the species. The riparian 
land adjacent to the river is entirely privately owned.
Unit 2: TAR2-Sandy/Swift Creek
    Unit 2 consists of 66 river mi (106 river km) of Sandy and Swift 
Creeks, located downstream from NC561 to the confluence with the Tar 
River, in Edgecombe, Vance, Warren, Halifax, Franklin, and Nash 
Counties. This unit is occupied and contains all of the physical and 
biological features necessary for the conservation of the species. The 
riparian land adjacent to this unit is predominantly privately owned 
(96%), with conservation parcels (2%) and State Game Lands (2%).
Unit 3: TAR3-Fishing Creek Subbasin
    Unit 3 consists of approximately 86 river mi (138 river km), 
including Fishing Creek from the confluence with Hogpen Branch to the 
confluence with the Tar River, and Little Fishing Creek from Medoc 
Mountain Road (SR1002) to the confluence with Fishing Creek, located in 
Edgecombe, Warren, Halifax, Franklin, and Nash Counties. This unit is 
occupied by the species and contains all of the physical and biological 
features necessary for the conservation of the species. The riparian 
land adjacent to the unit is divided between privately owned parcels 
(89%), State Game Lands and State Park land (5%), and conservation 
parcels (6%).

Neuse River Population

Unit 4: NR1-Upper Neuse River Subbasin (Eno River)
    Unit 4 consists of approximately 20 river mi (32 river km) of the 
Upper Neuse River extending from Eno River State Park downstream of 
NC70 to the confluence with Cabin Creek near Falls Lake impoundment, 
located in Orange and Durham Counties. This unit is not occupied by the 
species. There is one historical record of Carolina madtoms in this 
unit from 1961, but followup surveys in 2011 were not able to find any 
individuals. Although it is unoccupied, it does contain all of the 
physical and biological features necessary for the conservation of the 
species. This unit is itself essential for the conservation of the 
species because it will provide for population expansion and resiliency 
in portions of known historical habitat that is necessary to increase 
the resiliency, redundancy, and representation to increase viability of 
the species. Riparian land adjacent to the unit is almost entirely 
(95%) within State Park Lands, local government conservation parcels, 
and State Game Lands.
Unit 5: NR2-Little River
    Unit 5 consists of 28 river mi (45 river km) of the Upper and Lower 
Little River from NC42 to Johnston/Wayne County line, located in 
Johnston County. This unit is occupied and contains all of the physical 
and biological features necessary for the conservation of the species. 
The riparian land adjacent to the unit is predominantly privately owned 
(99%) with some (1%) State Conservation ownership.
Unit 6: NR3-Contentnea Creek
    Unit 6 consists of approximately 15 river mi (24 river km) of 
Contentnea Creek from Buckhorn Reservoir to Wiggins Mill Reservoir, 
located in Wilson County. This unit is not occupied by the species. The 
last known documentation of the species was in 2007. Although it is 
unoccupied, it does contain all of the physical and biological features 
necessary for the conservation of the species. This unit itself is 
essential for the conservation of the species because it will provide 
for population expansion and resiliency in portions of known historical 
habitat that is necessary to increase the resiliency, redundancy, and 
representation to increase viability of the species. The riparian land 
adjacent to this unit is entirely privately owned.

Trent Population

Unit 7: TR1-Trent River
    Unit 7 consists of approximately 15 river mi (24 river km) of the 
Trent River between the confluence with Cypress Creek and Beaver Creek, 
in Jones County. This unit is unoccupied by the species. The last known 
documentation of the species here was in 1986. Although it is 
unoccupied, it does contain all of the physical and biological features 
necessary for the conservation of the species. This unit itself is 
essential for the conservation of the species because it will provide 
for population expansion and resiliency in portions of known historical 
habitat that is necessary to increase the resiliency, redundancy, and 
representation to increase viability of the species. All of

[[Page 23664]]

the riparian land adjacent to this unit is privately owned.

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 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 Seymour Johnson Air Force Base 
(SJAFB) is located in Goldsboro, North Carolina, on 3,220 acres. SJAFB 
is federally owned land that is managed by the Air Force and is subject 
to all Federal laws and regulations. The SJAFB INRMP covers fiscal 
years 2015-2020, 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 prohibiting the introduction of 
exotic species, the preparation of a fish and wildlife management plan, 
the enforcement of game laws, the conservation of wildlife and 
migratory waterfowl, licenses and permits, regulating the use of 
chemical toxicants for controlling nuisance species, the protection of 
endangered and threatened species, and allowing public access to 
military property. Management actions that benefit the Neuse River 
waterdog include: Analyze the adequacy of existing stormwater 
facilities and BMPs; collect effluent data from each drainage basin 
within the context of an ecosystem goal for surface and ground water 
discharges from SJAFB to make it easier to evaluate the scientific, 
ecological, and economic value of current and proposed BMPs; collect 
seasonal and annual data concerning stormwater runoff and nonpoint 
source pollution to evaluate the contribution and water quality of 
stormwater runoff from SJAFB to the surrounding watersheds; address 
watershed protection and enhancement of water quality, and regulate the 
amounts of water used in future landscaping and grounds maintenance 
activities, including the use of herbicides, pesticides, and 
fertilizers; and the application of appropriate stormwater management 
practices.
    Two miles (3.2 km) of Unit 13 (NR5c-Middle Neuse River) 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 
SJAFB INRMP and that conservation efforts identified in the INRMP will 
provide a benefit to the Neuse River waterdog. Therefore, streams 
within this installation are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 2 
river mi (3.2 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

[[Page 23665]]

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) for each species considering the probable incremental 
economic impacts that may result from this proposed designation of 
critical habitat. The information contained in our IEMs was then used 
to develop a screening analysis of the probable effects of the 
designation of critical habitat for both species (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 designations for the 
Carolina madtom and Neuse River waterdog, 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 August 10, 2018, IEM, 
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 the listing portion of this document, 
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 
Carolina madtom and Neuse River waterdog. 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 either species 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 the 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 Neuse River 
waterdog totals approximately 738 river miles (1,188 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.
    The proposed critical habitat designation for the Carolina madtom 
totals approximately 257 river miles (414 river km), most of which is 
currently occupied by the species, but with three unoccupied units. In 
the occupied 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 the occupied 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. Three of the proposed Carolina madtom critical habitat 
units (NR1, NR3, and TR1) are unoccupied. Two of these units (NR1 and 
NR3) overlap entirely with river miles proposed as critical habitat for 
Neuse River waterdog. The third unoccupied unit (TR1) overlaps 
partially with proposed Neuse River waterdog critical habitat, but 
includes approximately 7

[[Page 23666]]

river miles that do not overlap (representing approximately three 
percent of the Carolina madtom critical habitat). However, these river 
miles are located in a remote area where future section 7 consultations 
are not anticipated.
    It is believed that, in most circumstances, these costs would not 
reach the threshold of ``significant'' under E.O. 12866. For the 
critical habitat designations for both species, we anticipate a maximum 
of 115 section 7 consultations annually at a total incremental cost of 
approximately $270,000 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.

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. Based on the 
draft analysis, 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 or Department of 
Homeland Security where a national security impact might exist. In 
preparing this proposal, we have determined that the lands within the 
proposed designation of critical habitat for both species are not owned 
or managed by the Department of Defense or Department of Homeland 
Security, and, therefore, we anticipate no impact on national security 
(but see Exemptions, above). 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 
Habitat Conservation Plans (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 Carolina madtom or 
Neuse River waterdog, and the proposed designation does not include any 
Tribal lands or trust resources. 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 that 
is likely to jeopardize the continued existence of any species proposed 
to be listed under the Act or result in the destruction or adverse 
modification of proposed critical habitat.
    We published a final regulation with a new definition of 
destruction or adverse modification on February 11, 2016 (81 FR 7214). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species. Such alterations may include, 
but are not limited to, those that alter the physical or biological 
features essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit 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 Army National Guard; 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,

[[Page 23667]]

    (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 Carolina madtom or Neuse River 
waterdog. 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 
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 Carolina madtom or Neuse River waterdog. 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 species 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 species 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 both species 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 both species, degrading 
water quality during their decay, and decreasing oxygen levels at night 
from their respiration to levels below the tolerances of the species.
    (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 two species 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 species.
    (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 either 
species. 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, and can 
result in direct predation, or affect the growth, reproduction, and 
survival, of both species.

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.

[[Page 23668]]

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

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

[[Page 23669]]

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

Federalism--Executive Order 13132

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

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule 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 
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. This determination is discussed in the 
October 1983 Federal Register document just mentioned. 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)).

[[Page 23670]]

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. As we have already discussed, there 
are no tribal lands in the proposed critical habitat designation, or 
that will be otherwise affected by the proposed listing.

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 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(h) by adding entries for ``Waterdog, Neuse River'' 
in alphabetical order under AMPHIBIANS and ``Madtom, Carolina'' in 
alphabetical order under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                   Amphibians
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Waterdog, Neuse River...........  Necturus lewisi...  Wherever found....  T              [Federal Register
                                                                                          citation when
                                                                                          published as a final
                                                                                          rule] 50 CFR 17.43(f)
                                                                                          \4d\ 50 CFR
                                                                                          17.95(d).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Fishes
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Madtom, Carolina................  Noturus furiosus..  Wherever found....  E              [Federal Register
                                                                                          citation when
                                                                                          published as a final
                                                                                          rule] 50 CFR
                                                                                          17.95(e).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.43 by adding paragraph (f) to read as follows:


Sec.  17.43  Special rules--amphibians.

* * * * *
    (f) Neuse River waterdog (Necturus lewisi).
    (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 Neuse River waterdog.
    (2) Exceptions from prohibitions. Incidental take of the Neuse 
River waterdog 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 composed 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 Neuse River waterdog and contain stable channel 
features, such as pools, glides, runs, and riffles, which could be used 
by the species for spawning, rearing, growth,

[[Page 23671]]

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.
0
4. Amend Sec.  17.95 by:
0
a. Adding to paragraph (d) an entry for ``Neuse River waterdog 
(Necturus lewisi)'' in the same alphabetical order as the species 
appears in the table in Sec.  17.11(h), to read as set forth below; and
0
b. Adding to paragraph (e) an entry for ``Carolina madtom (Noturus 
furiosus)'' in the same alphabetical order as the species appears in 
the table in Sec.  17.11(h), to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *

Neuse River Waterdog (Necturus lewisi)

    (1) Critical habitat units are depicted for Craven, Durham, 
Edgecombe, Franklin, Granville, Greene, Halifax, Johnston, Jones, 
Lenoir, Nash, Orange, Person, Pitt, Wake, Warren, Wayne, and Wilson 
Counties, North Carolina, on the maps below.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Neuse River waterdog 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 native aquatic 
fauna (such as, stable riffle-run-pool habitats that provide flow 
refuges consisting of silt-free gravel, small cobble, coarse sand, and 
leaf litter substrates) as well as abundant cover and burrows used for 
nesting.
    (ii) Adequate flows, or a hydrologic flow regime (which includes 
the severity, frequency, duration, and seasonality of discharge over 
time), necessary to maintain instream 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 
waterdog's habitat, food availability, and ample oxygenated flow for 
spawning and nesting habitat.
    (iii) Water 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) Invertebrate and fish prey items, which are typically 
hellgrammites, crayfish, mayflies, earthworms, snails, beetles, 
centipedes, slugs, and small fish.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF THE FINAL 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 Natural Heritage 
program's 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 http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0092 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:

[[Page 23672]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.000

    (6) Unit 1: TAR1-Upper Tar River, Granville County, North Carolina.
    (i) This unit consists of 8.6 river miles (13.8 river kilometers) 
of occupied habitat in the Upper Tar River from approximately SR1004 
(Old NC 75) downstream to NC 96. Unit 1 includes stream habitat up to 
bank full height.
    (ii) Map of Unit 1 follows:

[[Page 23673]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.001

    (7) Unit 2: TAR2-Upper Fishing Creek, Warren County, North 
Carolina.
    (i) This unit consists of 10.5 river miles (16.9 river kilometers) 
of habitat in Upper Fishing Creek from SR1118 (No Bottom Drive) 
downstream to NC58. Unit 2 includes stream habitat up to bank full 
height.
    (ii) Map of Unit 2 follows:

[[Page 23674]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.002

    (8) Unit 3: TAR3a-Fishing Creek Subbasin, Edgecombe, Halifax, and 
Nash Counties, North Carolina; Unit 4: TAR3b-Sandy/Swift Creek, 
Edgecombe, Franklin, and Nash Counties, North Carolina; Unit 5: TAR3c-
Middle Tar River Subbasin, Edgecombe, Franklin, and Nash Counties, 
North Carolina; and Unit 6: TAR3d-Lower Tar River Subbasin, Edgecombe 
and Pitt Counties, North Carolina. Units 3, 4, 5, and 6 include stream 
habitat up to bank full height.
    (i) Unit 3 consists of 63 river miles (101 river kilometers) of 
habitat in lower Little Fishing Creek approximately 1.6 miles (2.6 km) 
upstream of SR1214 (Silvertown Rd) downstream to the confluence with 
Fishing Creek, and including the mainstem of Fishing Creek to the 
confluence with the Tar River.
    (ii) Unit 4 consists of 68 river miles (110 river kilometers) of 
habitat in Sandy Creek downstream of SR 1451 (Leonard Road) to the 
confluence with the Tar River, including Red Bud Creek downstream of 
the Franklin/Nash county line to the confluence with Swift Creek.
    (iii) Unit 5 consists of approximately 100 river miles (161 river 
kilometers) of the Middle Tar River from the confluence with Cedar 
Creek downstream to the confluence with Fishing Creek, including Stony 
Creek below SR1300 (Boddies' Millpond Rd), downstream to the confluence 
with the Tar River.
    (iv) Unit 6 consists of approximately 60 river miles (96.6 river 
kilometers) in the Lower Tar River Subbasin from the confluence with 
Fishing Creek downstream to the confluence with Barber Creek near 
SR1533 (Port Terminal Road). This unit includes portions of Town Creek 
below NC111 to the confluence with the Tar River, Otter Creek below 
SR1251 to the confluence with the Tar River, and Tyson Creek below 
SR1258 to the confluence with the Tar River.
    (v) Map of Units 3, 4, 5, and 6 follows:

[[Page 23675]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.003

    (9) Unit 7: NR1-Eno River, Durham and Orange Counties, North 
Carolina.
    (i) This unit consists of approximately 41.5 river miles (66.8 
river kilometers) of habitat in the Eno River from NC86 downstream to 
the inundated portion of Falls Lake. Unit 7 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 7 follows:

[[Page 23676]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.004

    (10) Unit 8: NR2-Flat River, Durham and Person Counties, North 
Carolina.
    (i) This unit consists of 17.4 river miles (28 river kilometers) of 
habitat in the Flat River from SR1739 (Harris Mill Road) downstream to 
the inundated portion of Falls Lake. Unit 8 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 8 follows:

[[Page 23677]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.005

    (11) Unit 9: NR3-Middle Creek, Johnston and Wake Counties, North 
Carolina.
    (i) This unit consists of 7.6 river miles (12.2 river kilometers) 
of habitat in the Middle Creek from Southeast Regional Park downstream 
to the Interstate 40 crossing. Unit 9 includes stream habitat up to 
bank full height.
    (ii) Map of Unit 9 follows:

[[Page 23678]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.006

    (12) Unit 10: NR4-Swift Creek, Johnston County, North Carolina.
    (i) This unit consists of 23.4 river miles (37.6 river kilometers) 
of occupied habitat in Swift Creek from NC42 downstream to the 
confluence with the Neuse River. Unit 10 includes stream habitat up to 
bank full height.
    (ii) Map of Unit 10 follows:

[[Page 23679]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.007

    (13) Unit 11: NR5a-Little River, Franklin, Johnston, Wake, and 
Wayne Counties, North Carolina; Unit 12: NR5b-Mill Creek, Johnston and 
Wayne Counties, North Carolina; and Unit 13: NR5c-Middle Neuse River, 
Wayne County, North Carolina. Units 11, 12, and 13 include stream 
habitat up to bank full height.
    (i) Unit 11 consists of 89.6 river miles (144.2 river kilometers) 
of habitat in the Little River from near NC96 downstream to the 
confluence with the Neuse River, including Buffalo Creek from NC39 to 
the confluence with the Little River.
    (ii) Unit 12 consists of 18.7 river miles (30 river kilometers) of 
Mill Creek from upstream of US701 downstream to the confluence with the 
Neuse River.
    (iii) Unit 13 consists of 39.8 river miles (64 river kilometers) of 
the Middle Neuse River from the confluence with Mill Creek downstream 
to the Wayne/Lenoir County line.
    (iv) Map of Units 11, 12, and 13 follows:

[[Page 23680]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.008

    (14) Unit 14: NR6-Contentnea Creek/Lower Neuse River Subbasin, 
Craven, Lenoir, Pitt, Wayne, and Wilson Counties, North Carolina.
    (i) This unit consists of 117 river miles (188.3 river kilometers) 
of habitat in the Contentnea Creek from NC581 downstream to its 
confluence with the Neuse River, Nahunta Swamp from the Wayne/Greene 
County line to the confluence with Contentnea Creek, and the Neuse 
River from the confluence with Contentnea Creek to the confluence with 
Pinetree Creek. Unit 14 includes stream habitat up to bank full height.
    (ii) Map of Unit 14 follows:

[[Page 23681]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.009

    (15) Unit 15: NR7-Swift Creek, Craven County, North Carolina.
    (i) This unit consists of 10 river miles (16.3 river kilometers) of 
habitat in Swift Creek from SR1931 (Beaver Camp Rd) downstream to 
SR1440 (Streets Ferry Rd). Unit 15 includes stream habitat up to bank 
full height.
    (ii) Map of Unit 15 follows:

[[Page 23682]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.010

    (16) Unit 16: TR1-Trent River, Jones County, North Carolina.
    (i) This unit consists of 62 river miles (100 river kilometers) of 
habitat in Beaver Creek from SR1316 (McDaniel Fork Rd) to the 
confluence with the Trent River, and Trent River from the confluence 
with Poplar Branch downstream to SR1121 (Oak Grove Rd) crossing at the 
Marine Corps Cherry Point property. Unit 16 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 16 follows:

[[Page 23683]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.011

    (e) Fishes.
* * * * *

Carolina madtom (Noturus furiosus)

    (1) Critical habitat units are depicted for Durham, Edgecombe, 
Franklin, Granville, Halifax, Jones, Johnston, Nash, Orange, Vance, 
Warren, and Wilson Counties, North Carolina, on the maps below.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Carolina madtom 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 native 
fish (such as stable riffle-run-pool habitats that provide flow refuges 
consisting of silt-free gravel, small cobble, coarse sand, and leaf 
litter substrates) as well as abundant cover used for nesting.
    (ii) Adequate flows, or a hydrologic flow regime (which includes 
the severity, frequency, duration, and seasonality of discharge over 
time), necessary to maintain instream 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 
fish's habitat, food availability, and ample oxygenated flow for 
spawning and nesting habitat.
    (iii) Water 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) Aquatic macroinvertebrate prey items, which are typically 
dominated by larval midges, mayflies, caddisflies, dragonflies, and 
beetle larvae.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF THE FINAL 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 Natural Heritage 
program's 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 http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0092 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:

[[Page 23684]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.012

    (6) Unit 1: TAR1-Upper Tar River, Franklin, Granville, and Vance 
Counties, North Carolina.
    (i) This unit consists of 26 river miles (42 river kilometers) of 
habitat in the Upper Tar River from the confluence with Sand Creek to 
the confluence with Sycamore Creek. Unit 1 includes stream habitat up 
to bank full height.
    (ii) Map of Unit 1 follows:

[[Page 23685]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.013

    (7) Unit 2: TAR2-Sandy/Swift Creek, Edgecombe, Franklin, Halifax, 
Nash, Vance, and Warren Counties, North Carolina.
    (i) This unit consists of 66 river miles (106 river kilometers) of 
occupied habitat in Sandy and Swift Creeks, located downstream from 
NC561 to the confluence with the Tar River. Unit 2 includes stream 
habitat up to bank full height.
    (ii) Map of Unit 2 follows:

[[Page 23686]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.014

    (8) Unit 3: TAR3-Fishing Creek Subbasin, Edgecombe, Franklin, 
Halifax, Nash, and Warren Counties, North Carolina.
    (i) This unit consists of 86 river miles (138 river kilometers) of 
habitat in Fishing Creek from the confluence with Hogpen Branch to the 
confluence with the Tar River, and Little Fishing Creek from Medoc 
Mountain Road (SR1002) to the confluence with Fishing Creek. Unit 3 
includes stream habitat up to bank full height.
    (ii) Map of Unit 3 follows:

[[Page 23687]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.015

    (9) Unit 4: NR1-Upper Neuse River Subbasin (Eno River), Durham and 
Orange Counties, North Carolina.
    (i) This unit consists of 20 river miles (32 river kilometers) of 
habitat in the Upper Neuse River extending from Eno River State Park 
downstream of NC70 to the confluence with Cabin Creek near Falls Lake 
impoundment. Unit 4 includes stream habitat up to bank full height.
    (ii) Map of Unit 4 follows:

[[Page 23688]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.016

    (10) Unit 5: NR2-Little River, Johnston County, North Carolina.
    (i) This unit consists of 28 river miles (45 river kilometers) of 
habitat in the Upper and Lower Little River from NC42 to the Johnston/
Wayne County line. Unit 5 includes stream habitat up to bank full 
height.
    (ii) Map of Unit 5 follows:

[[Page 23689]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.017

    (11) Unit 6: NR3-Contentnea Creek, Wilson County, North Carolina.
    (i) This unit consists of 15 river miles (24 river kilometers) of 
habitat in Contentnea Creek from Buckhorn Reservoir to Wiggins Mill 
Reservoir. Unit 6 includes stream habitat up to bank full height.
    (ii) Map of Unit 6 follows:

[[Page 23690]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.018

    (12) Unit 7: TR1-Trent River, Jones County, North Carolina.
    (i) This unit consists of 15 river miles (24 river kilometers) of 
unoccupied habitat in the Trent River between the confluence with 
Cypress Creek and Beaver Creek. Unit 7 includes stream habitat up to 
bank full height.
    (ii) Map of Unit 7 follows:

[[Page 23691]]

[GRAPHIC] [TIFF OMITTED] TP22MY19.019

* * * * *

    Dated: April 2, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-10379 Filed 5-21-19; 8:45 am]
 BILLING CODE 4333-15-P