Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Big Sandy Crayfish and the Guyandotte River Crayfish, 5072-5122 [2020-01012]

Download as PDF 5072 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R5–ES–2019–0098; 4500090023] RIN 1018–BE19 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Big Sandy Crayfish and the Guyandotte River Crayfish Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Big Sandy crayfish (Cambarus callainus) and the Guyandotte River crayfish (C. veteranus) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 582 stream kilometers (skm) (362 stream miles (smi)) in Martin and Pike Counties, Kentucky; Buchanan, Dickenson, and Wise Counties, Virginia; and McDowell, Mingo, and Wayne Counties, West Virginia, are proposed as critical habitat for the Big Sandy crayfish. Approximately 135 skm (84 smi) in Logan and Wyoming Counties, West Virginia, are proposed as critical habitat for the Guyandotte River crayfish. If we finalize this rule as proposed, it would extend the Act’s protections to these species’ critical habitat. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for these species. DATES: We will accept comments on the proposed rule or draft economic analysis (DEA) that are received or postmarked on or before March 30, 2020. 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 a public hearing, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by March 13, 2020. ADDRESSES: Written comments: You may submit comments on the proposed rule or DEA by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R5–ES–2019–0098, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on jbell on DSKJLSW7X2PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R5–ES–2019– 0098, U.S. Fish and Wildlife Service, MS: JAO/1N, 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). Document availability: This proposed rule and the DEA are available on the internet at http://www.regulations.gov at Docket No. FWS–R5–ES–2019–0098, and at the North Atlantic-Appalachian Regional Office (see FOR FURTHER INFORMATION CONTACT). The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http:// www.regulations.gov at Docket No. FWS–R5–ES–2019–0098, and at the North Atlantic-Appalachian Regional Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Regional Office set out above, and may also be included in the preamble and/ or at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Martin Miller, Chief, Endangered Species, U.S. Fish and Wildlife Service, North Atlantic-Appalachian Regional Office, 300 Westgate Center Drive, Hadley, MA 01035; telephone 413–253– 8615. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. This rule proposes to designate critical habitat for two species of crayfish, the Big Sandy crayfish and the Guyandotte River crayfish. We listed the Big Sandy crayfish as a threatened PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 species and the Guyandotte River crayfish as an endangered species on April 7, 2016 (81 FR 20450). The basis for our action. Under the Act, any species that is determined to be an endangered or threatened species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Section 3(5)(A) 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 protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. 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. The critical habitat areas we are proposing to designate in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Big Sandy and Guyandotte River crayfishes. We propose to designate: • Approximately 582 stream kilometers (skm) (362 stream miles (smi)) of streams for the Big Sandy crayfish. • Approximately 135 skm (84 smi) of streams for the Guyandotte River crayfish. We prepared an economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the proposed critical habitat designation. We hereby announce the availability of the draft economic analysis and seek public review and comment. Peer review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking comments E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules from independent specialists to ensure that this critical habitat proposal is based on scientifically sound data and analyses. We have invited these peer reviewers to comment on our specific assumptions and conclusions in this proposal to designate critical habitat. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Information Requested jbell on DSKJLSW7X2PROD 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 reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including information to answer the following questions: (a) Are the species threatened by taking or other human activity, and would identification of critical habitat be expected to increase the degree of such threat to the species? (b) Is the present or threatened destruction, modification, or curtailment of a species’ habitat or range a threat to the species, or do the threats to the species’ habitats stem solely from causes that cannot be addressed through management actions resulting from consultation under section 7(a)(2) of the Act? (c) Do any areas meet the definition of critical habitat? (2) Specific information on: (a) The amount and distribution of Big Sandy crayfish or Guyandotte River crayfish habitat; (b) What areas, that were occupied at the time of listing (i.e., are currently occupied) and that contain 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. VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 We particularly seek comments regarding: (i) Whether occupied areas are inadequate for the conservation of the species; and (ii) Specific information that supports the determination that unoccupied areas will, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. (3) Land use designations and current or planned activities in the subject areas and their possible effects on proposed critical habitat. (4) Any probable economic, national security, or other relevant effects of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be affected. (5) Information on the extent to which the description of probable economic effects in the draft economic analysis (DEA) is a reasonable estimate of the likely economic effects. (6) Information on land ownership within proposed critical habitat areas, particularly tribal land ownership (allotments, trust, and/or fee) so that the Service may best implement Secretarial Order 3206 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act). (7) 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. Specific information we seek includes information on any conservation plans within the proposed critical habitat areas that provide conservation for the Big Sandy or Guyandotte River crayfishes and their habitats. (8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation. (9) 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 5073 allow us to verify any scientific or commercial information you include. Please note also that comments 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 we must make determinations ‘‘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 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, Northeast Regional Office (see FOR FURTHER INFORMATION CONTACT). Public Hearing Section 4(b)(5) of the Act provides for a public hearing 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 a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, 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 Federal actions prior to April 7, 2015, are described in the proposed rule to list the Big Sandy crayfish and the Guyandotte River crayfish under the Act (80 FR 18710; April 7, 2015). On April 7, 2016 (81 FR 20450), we listed the Big Sandy crayfish as a threatened species and the Guyandotte River crayfish as an endangered species. In the April 7, 2015, proposed listing rule (80 FR 18710), we stated that designating critical habitat at that time E:\FR\FM\28JAP2.SGM 28JAP2 5074 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 was prudent but not determinable. On March 28, 2018, the Service received a notice of intent (NOI) to sue letter from the Center for Biological Diversity (CBD) alleging that the Service failed to designate critical habitat for the Big Sandy crayfish and the Guyandotte River crayfish within the timeframe set forth in the Act. On May 23, 2018, the Service responded to CBD’s NOI, explaining that the proposed critical habitat designations for these two species were not currently among the highest priority actions outlined in our 7-year National Listing Workplan and more specific fiscal year 2018 Workplan. On June 20, 2018, CBD filed suit alleging that the Service failed to designate critical habitat within the Act’s required timeline (CBD v. Zinke, No. 2:18–cv–11111 (S.D.W.Va.)). On September 21, 2018, we filed an unopposed motion to stay litigation (No. 2:18–cv–01058 (S.D.W.Va.)) until December 31, 2019. On October 18, 2018, the court granted our motion to stay (No. 2:18–cv–01058 (S.D.W.Va.)). 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 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 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 or require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 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. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. 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 species status assessment (SSA) report, if available, 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 surveys E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 and studies; biological assessments; other published 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 the recovery of the species. Areas that are important for the conservation of the listed 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 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 indicates a different outcome. Prudency Determination Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that the Secretary shall designate critical habitat at the time a 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 Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 is not a threat to the species, or threats to the species’ habitat stem from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) After analyzing the best scientific data available, the Secretary otherwise determines that designation of critical habitat would not be prudent. We did not identify any of the factors above to apply to the Big Sandy crayfish or the Guyandotte River crayfish. Therefore, we find that designation of critical habitat is prudent for both the Big Sandy crayfish and the Guyandotte River crayfish. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) 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.’’ As we discussed in the proposed rule (80 FR 18710; April 7, 2015) and in accordance with 16 U.S.C. 1533(b)(6)(C)(ii)), we concluded that critical habitat was not determinable at that time because we were seeking additional information on the Big Sandy and Guyandotte River crayfishes, but that we would make a critical habitat determination no later than 1 year following publication of the final listing rule. We have since received and reviewed additional data on the biological needs of these species and the habitat characteristics where they are located. This and other information represent the best scientific data available and lead us to conclude that the designation of critical habitat is determinable for the Big Sandy and the Guyandotte River crayfishes. Physical or Biological Features Essential to the Conservation of the Species 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 5075 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 essential 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 derived the specific physical or biological features required for the Big Sandy crayfish and the Guyandotte River crayfish from studies and observations of these species’ habitat, ecology, and life history, which are discussed in full in the species’ proposed and final listing rules (80 FR 18710, April 7, 2015; 81 FR 20450, April 7, 2016, respectively). The primary habitat elements that influence resiliency of these species include, but are not limited to, the degree of sedimentation, water quality thresholds, and extent of habitat connectedness. Summary of Essential Physical or Biological Features We derived the specific physical or biological features required for the Big Sandy crayfish and the Guyandotte River crayfish from studies and observations of these species’ habitat, ecology, and life history, which are discussed in full in the species’ proposed and final listing rules (80 FR 18710, April 7, 2015; 81 FR 20450, April 7, 2016, respectively), and summarized here. While data are sparse with which to quantitatively define the optimal or range of suitable conditions for a specific biological or physical feature needed by these species (e.g., degree of sedimentation, water quality thresholds, E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5076 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules extent of habitat connectedness), the available species-specific information, in combination with information from other similar crayfish species, provides sufficient information to qualitatively discuss the physical and biological features needed to support these species. As discussed in the proposed (80 FR 18710, April 7, 2015) and final (81 FR 20450, April 7, 2016) listing rules, these species are classified as ‘‘tertiary’’ (stream) burrowing crayfish, meaning that they do not exhibit complex burrowing behavior; instead, of digging holes they shelter in shallow excavations under loose cobbles and boulders on the stream bottom (Loughman 2013, p. 1). These species are opportunistic omnivores, with seasonal-mediated tendencies for animal or plant material (Thoma 2009, p. 13; Loughman 2014, p. 21). The general life cycle pattern of these species is 2 to 3 years of growth, maturation in the third year, and first mating in midsummer of the third or fourth year (Thoma 2009, entire; Thoma 2010, entire). Following midsummer mating, the annual cycle involves egg laying in late summer or fall, spring release of young, and late spring/early summer molting (Thoma 2009, entire; Thoma 2010, entire). The Big Sandy and Guyandotte River crayfishes’ likely lifespan is 5 to 7 years, with the possibility of some individuals reaching 10 years of age (Thoma 2009, entire; Thoma 2010, entire; Loughman 2014, p. 20). Suitable habitat for both the Big Sandy crayfish and the Guyandotte River crayfish appears to be limited to higher elevation, clean, medium-sized streams and rivers in the upper reaches of the Big Sandy and Guyandotte river basins, respectively (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 21–23; Taylor and Shuster 2004, p. 124; Thoma 2009, p. 7; Thoma 2010, pp. 3–4, 6; Loughman 2013, p. 1; Loughman 2014, pp. 22–23). Both species are associated with the faster moving water of riffles and runs or pools with current (Jezerinac et al. 1995, p. 170). An important habitat feature for both species is an abundance of large, unembedded slab boulders on a sand, cobble, or bedrock stream bottom (Loughman 2013, p. 2; Loughman 2014, pp. 9–11). Excessive sedimentation leading to substrate embeddedness creates unsuitable conditions for these species (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 22–23; Thoma 2009, p. 7; Thoma 2010, pp. 3–4; Loughman 2013, p. 6). As such, we have determined that the following physical and biological features (PBFs) are VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 essential for the conservation of the Big Sandy and Guyandotte River crayfishes: (1) Fast-flowing stream reaches with unembedded slab boulders, cobbles, or isolated boulder clusters within an unobstructed stream continuum (i.e., riffle, run, pool complexes) of permanent, moderate- to large-sized (generally third order and larger) streams and rivers (up to the ordinary high water mark as defined at 33 CFR 329.11). (2) Streams and rivers with natural variations in flow and seasonal flooding sufficient to effectively transport sediment and prevent substrate embeddedness. (3) Water quality characterized by seasonally moderated temperatures and physical and chemical parameters (e.g., pH, conductivity, dissolved oxygen) sufficient for the normal behavior, growth, reproduction, and viability of all life stages of the species. (4) An adequate food base, indicated by a healthy aquatic community structure including native benthic macroinvertebrates, fishes, and plant matter (e.g., leaf litter, algae, detritus). (5) Aquatic habitats protected from riparian and instream activities that degrade the physical and biological features described in (1) through (4), above, or cause physical (e.g., crushing) injury or death to individual Big Sandy or Guyandotte River crayfish. (6) An interconnected network of streams and rivers that have the physical and biological features described in (1) through (4), above, that allow for the movement of individual crayfish in response to environmental, physiological, or behavioral drivers. The scale of the interconnected stream network should be sufficient to allow for gene flow within and among watersheds. Special Management Considerations or Protections When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Big Sandy and Guyandotte River crayfishes may require special management considerations or protections to reduce the following threats: (1) Resource extraction (coal mining, timber harvesting, and oil and gas development); (2) road construction and maintenance (including unpaved roads and trails); (3) instream dredging or construction projects; (4) off-road PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 vehicle (ORV) use; and (5) other sources of non-point source pollution. These activities are discussed in more detail under Summary of Factors Affecting the Species in the final listing rule (81 FR 20450; April 7, 2016). These threats are in addition to potential adverse effects of drought, floods, or other natural phenomena. Management activities that could ameliorate these threats include, but are not limited to: Use of best management practices (BMPs) designed to reduce erosion, sedimentation, and stream bank destruction; development of alternatives that avoid and minimize stream bed disturbances; regulation of ORV use in or near streams; and reduction of other watershed and floodplain disturbances that contribute excess sediments or pollutants 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. We are proposing to designate critical habitat in areas within the geographical area occupied by the Big Sandy crayfish and Guyandotte River crayfish at the time of listing in 2016. For the Guyandotte River crayfish, we also are proposing to designate three specific streams outside the geographical area occupied by the species at the time of listing because we have determined that a designation limited to occupied areas would be inadequate to ensure the conservation of the species. These currently unoccupied streams are within the larger occupied watershed of the Guyandotte River crayfish’s range and adjacent to currently occupied streams. Proposed critical habitat includes the water and stream channel up to the ordinary high water mark as defined at 33 CFR 329.11. The current distribution of both the Big Sandy and the Guyandotte River crayfishes is fragmented and much reduced from their historical distributions. As specified in the Service’s recovery outline for these species (Service 2018, entire), we anticipate that recovery will require protection of existing populations and habitat for both species, and in the case of the Guyandotte River crayfish, E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 reestablishing populations in some historically occupied streams where the species is presumed extirpated. These additional populations will increase the species’ resiliency, representation, and redundancy, thereby increasing the likelihood that it will sustain populations over time. Sources of data for this proposed critical habitat designation include crayfish survey and habitat assessment reports (Jezerinac et al. 1995, entire; Channell 2004, entire; Taylor and Shuster 2004, entire; Thoma 2009a, entire; Thoma 2009b, entire; Thoma 2010, entire; Loughman 2013, entire; Loughman 2014, entire; Loughman 2015a, entire; Loughman 2015b, entire) and project-specific reports submitted to the Service (Appalachian Technical Services, Inc. (ATS) 2009, entire; ATS 2010, entire; Vanasse Hangen Brustlin, Inc. (VHB) 2011, entire; ATS 2012a, entire; ATS 2012b, entire; Virginia Department of Transportation (VDOT) 2014a, entire; VDOT 2014b, entire; VDOT 2015, entire; ATS 2017, entire; Red Wing 2017, entire; Third Rock 2017, entire; Red Wing 2018, entire). Areas Occupied at the Time of Listing As described in the final listing rule for the Big Sandy and Guyandotte River crayfishes (81 FR 20450; April 7, 2016), the best available data (stream surveys conducted between 2006 and 2016) indicate that at the time of listing, the Big Sandy crayfish occupied 26 streams and rivers (generally third order and larger) in the Russell Fork, Upper Levisa Fork, Lower Levisa Fork, and Tug Fork watersheds in the upper Big Sandy River basin of Kentucky, Virginia, and West Virginia. The Guyandotte River crayfish occupied two similarly-sized streams in the Upper Guyandotte River basin of West Virginia. We propose to designate a total of 4 occupied units, including a total of 19 occupied subunits, as critical habitat for the Big Sandy crayfish in the aforementioned watersheds. In addition, we propose to designate one unit, including two occupied subunits, as critical habitat for the Guyandotte River crayfish in the Upper Guyandotte River watershed in West Virginia. For the Guyandotte River crayfish, we have determined that a designation limited to the two occupied subunits would be inadequate to ensure the conservation of the species. The Guyandotte River crayfish is historically known from six connected stream systems within the Upper Guyandotte River basin (its geographical range); however, at the time of listing, the species was limited to two isolated subunits in Pinnacle Creek and Clear Fork. In our review, we VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 determined that these two subunits do not provide sufficient redundancy or resiliency necessary for the conservation of the species. The Pinnacle Creek population is known from a 5.2-skm (3.3-smi) stream reach, and survey data collected between 2009 and 2015 indicate that this area has low crayfish numbers. This small, isolated population is at risk of extirpation from demographic and environmental stochasticity, and a catastrophic event. The Clear Fork population occurs along a 33-skm (22-smi) stream reach, and surveys from 2015 indicate several sites with ‘‘robust’’ crayfish numbers. The primary risk to this population is extirpation from a catastrophic event; however, because it is an isolated population, demographic or stochastic declines present some risk. Areas Outside of the Geographic Range at the Time of Listing Because we have determined occupied areas alone are not adequate for the conservation of the Guyandotte River crayfish, we have evaluated whether any unoccupied areas are essential for the conservation of the species. We are proposing as critical habitat three currently unoccupied subunits within the Upper Guyandotte basin unit. We have determined that each is essential for the conservation of the species. Two of the currently unoccupied subunits, Guyandotte River and Indian Creek, provide for an increase in the species’ redundancy and, by providing connectivity between the subunits, increase the resiliency of the extant populations in Pinnacle Creek and Clear Fork. One of the proposed unoccupied subunits, Huff Creek, is isolated from the other units by the R.D. Bailey dam, but provides for increased overall redundancy of the species and adds representation in this area of its historical range. As discussed in the recovery outline for the species (Service 2018, entire), successful conservation of the Guyandotte River crayfish will require the establishment of additional populations within the species’ historical range; the three proposed unoccupied subunits advance this goal. All three subunits have at least one of the physical or biological features essential to the conservation of the species. To reduce threats to the species and its habitat, the Service is working cooperatively with the West Virginia Department of Environmental Protection and the coal industry to develop protection and enhancement plans for coal mining permits that may affect crayfish streams and the Hatfield McCoy Trail system and the Federal Highway Administration to avoid and minimize PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 5077 effects from ORV use in and around Pinnacle Creek and other trail systems adjacent to crayfish streams. In addition, the Service, West Virginia Department of Natural Resources, Virginia Department of Game and Inland Fisheries, and West Liberty University are working together to conduct additional research on both the Guyandotte River and Big Sandy crayfishes, including research on habitat use and activity patterns and captive holding and propagation. We are reasonably certain that each unoccupied subunit will contribute to the conservation of the species by furthering the preliminary recovery goals identified in the recovery outline of increasing the Guyandotte River crayfish’s resiliency, redundancy and representation. Bolstering the species’ viability will reduce the species’ risk of extinction. 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 and subunits, 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–R5–ES–2019–0098, and at the North Atlantic-Appalachian Regional Office (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 pavement, buildings, and other structures because such lands lack physical or biological features necessary for the Big Sandy and Guyandotte River crayfishes. 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 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5078 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules biological features in the adjacent critical habitat. Under §§ 424.12(b)(1) and (2) of the implementing regulations, the Service determines the appropriate scale for designating critical habitat. This is further clarified in the final rule titled, ‘‘Implementing Changes to the Regulations for Designating Critical Habitat’’ (81 FR 7414; February 11, 2016; see Discussion of Changes to Part 424 in that rule): The Service ‘‘cannot and need not make determinations at an infinitely fine scale.’’ Thus, the Service need not determine that each square inch, square yard, acre, or even square mile independently meets the definition of ‘‘critical habitat.’’ In making its determination on the appropriate scale for designating critical habitat, the Service may consider, among other things, the life history of the species, the scales at which data are available, and biological or geophysical boundaries (such as watersheds). For the Big Sandy and the Guyandotte River crayfishes, we propose that streams or stream segments (as opposed to individual occurrence locations) are the appropriate units for designating critical habitat. We base this on the following factors: (1) The regional geology and stream morphology in the upper Big Sandy and Upper Guyandotte River basins lead to a general abundance of slab boulders and/or cobble in most streams, although in some areas this habitat is sparse or occurs as isolated boulder clusters. Furthermore, while continuous crayfish survey data do not exist (i.e., not every reach of every stream has been surveyed), more intensive crayfish surveys in portions of the Russell Fork watershed and in Clear Fork and Pinnacle Creek in the Upper Guyandotte basin indicate that the Big Sandy and Guyandotte River crayfishes may occur throughout stream reaches where the required physical and biological features (e.g., riffles and runs with unembedded slab boulders or unembedded boulder clusters, adequate water quality, and connectivity) are present. (2) Streams are dynamic, linear systems, and local water quality parameters (e.g., dissolved oxygen, temperature, pH) can vary temporally and are largely reliant on upstream conditions (barring known point or nonpoint source discharges or other factors that affect water quality more locally). Likewise, the various stream microhabitats (e.g., riffles, runs, pools) with attendant fauna do not generally occur in isolation, but form a continuous gradient along the stream continuum. Because the known occupied Big Sandy and Guyandotte VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 River crayfish sites possess the required physical and biological features, at least to some minimal degree, for these species to survive, and because these physical and biological features are likely representative of stream conditions beyond any single survey location, we conclude that Big Sandy and Guyandotte River crayfish likely occupy, or otherwise rely upon, stream areas beyond any single occurrence location. (3) Studies of other crayfish species suggest that adult and larger juvenile Big Sandy and Guyandotte River crayfish likely move both upstream and downstream in response to changes in environmental conditions or local crayfish demographics, or for other behavioral or physiological reasons (Momot 1966, pp. 158–159; Kerby et al. 2005, p. 407). The evidence also indicates that some individuals, especially newly independent juveniles, may be passively dispersed to downstream locations by swiftly flowing water (Loughman 2019). Therefore, within the greater geographical ranges of the Big Sandy crayfish and Guyandotte River crayfish (i.e., the upper Big Sandy River basin and the Upper Guyandotte River basin, respectively), the general morphology and connectedness of the streams and the life history of these species lead us to reasonably conclude that both species likely occupy, transit through, or otherwise rely upon stream reaches beyond any known occurrence location. We acknowledge that some areas along a stream segment proposed as critical habitat may not contain all of the physical and biological features required by either species, either naturally or as a result of habitat modification, but based on the considerations discussed above, we conclude that streams or stream segments are appropriate units of scale for describing critical habitat for these species. In summary, we propose to designate as critical habitat streams and stream segments up to the ordinary high water mark that were occupied at the time of listing and contain one or more of the physical and biological features to support the life-history processes essential to the conservation of the Big Sandy crayfish and the Guyandotte River crayfish. Additionally, for the Guyandotte River crayfish, we propose to designate three subunits outside the geographical range of that species occupied at the time of listing; however, these subunits are within the larger occupied watershed. Two of these subunits have historical records of the species, and one subunit, while not PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 having a record of the species, is within its historical range and provides connectivity between occupied and unoccupied subunits. These unoccupied subunits provide for increased redundancy, resiliency, and representation of the Guyandotte River crayfish. We propose specific critical habitat unit/subunit boundaries based on the following general criteria: (1) We delineated areas within the historical range of each species that had positive survey data between 2006 and 2016 (the time of listing). For the Guyandotte River crayfish, we also delineated three stream segments as unoccupied critical habitat. (2) Upstream termini of proposed critical habitat units/subunits are located at the confluence of the primary stream and a smaller named tributary stream (usually a second-order stream). These termini are generally within about 5 skm (3.1 smi) upstream of a known crayfish occurrence record. The downstream termini are usually located at the confluence of the primary stream and the next larger receiving stream or river. In some instances, dams or reservoirs are used to demark critical habitat units/subunits. (3) We included intervening stream segments between occurrence locations unless there are data suggesting the physical and biological features required by the species are absent in the intervening segment. (4) We describe the proposed critical habitat units/subunits by their upstream and downstream coordinates (i.e., latitude and longitude) and geographic landmarks (e.g., confluence of named streams and/or a town or population center). Within these stream segments, proposed critical habitat includes the stream channel within the ordinary high water mark. As defined at 33 CFR 329.11, the ‘‘ordinary high water mark’’ on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. For the purposes of analyzing the potential economic effects of proposed critical habitat designation for the Big Sandy and Guyandotte River crayfishes, the critical habitat units/subunits are determined to be in either private, Federal, or State ownership. In Kentucky, Virginia, and West Virginia, jurisdiction over the water itself is maintained by the State or E:\FR\FM\28JAP2.SGM 28JAP2 5079 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules Commonwealth; however, ownership of the stream bottom may vary depending on specific State law or legal interpretation (Energy & Mineral Law Institute 2011, pp. 409–427; Virginia Code at section 62.1–44.3; West Virginia Department of Environmental Protection 2013, section C). For the purposes of our economic analysis, we describe ownership of proposed critical habitat units/subunits based on the identification of the adjacent riparian landowner(s) (i.e., private, Federal, or State entity). Proposed Critical Habitat Designation For the Big Sandy crayfish, we propose to designate approximately 582 skm (362 smi) in 4 units (including 19 subunits) in Kentucky, Virginia, and West Virginia as critical habitat (see table 1, below). These streams or stream segments are considered occupied at the time of listing and represent the entire known range of the species and all extant populations. Based on our review, we conclude that the units occupied by the Big Sandy crayfish at the time of listing (described below) are representative of the species’ historical range and include core population areas in the Russell Fork watershed in Virginia and the upper Tug Fork watershed (e.g., Dry Fork) in West Virginia, as well as other peripheral populations in Kentucky, Virginia, and West Virginia. We determined that there is sufficient area for the conservation of the Big Sandy crayfish within these occupied units, and we therefore do not propose to designate any unoccupied critical habitat for the species. The proposed units constitute our best assessment of areas that meet the definition of critical habitat for the Big Sandy crayfish. TABLE 1—PROPOSED CRITICAL HABITAT UNITS AND SUBUNITS FOR THE BIG SANDY CRAYFISH Unit/watershed Unit 1: Upper Levisa Fork ......... Unit 2: Russell Fork .................. Subunit a b c d e f g h i Unit 3: Lower Levisa Fork ......... j a b Unit 4: Tug Fork ........................ a b c d e f g Total: .................................. River/stream State Dismal Creek ............................ Russell Fork ............................. Hurricane Creek ....................... Indian Creek ............................. Fryingpan Creek ....................... Lick Creek ................................ Russell Prater Creek ................ McClure River .......................... Open Fork ................................ Elkhorn Creek .......................... Cranes Nest River .................... Birchfield Creek ........................ Pound River ............................. Levisa Fork (upstream) ............ Levisa Fork (downstream) ....... Shelby Creek ............................ Long Fork ................................. Tug Fork (upstream) ................ VA KY/VA VA VA VA VA VA VA VA KY VA VA VA KY KY KY KY KY/VA/WV Tug Fork (downstream) ............ Dry Fork ................................... Bradshaw Creek ....................... Panther Creek .......................... Knox Creek .............................. Peter Creek .............................. Blackberry Creek ...................... Pigeon Creek ........................... Laurel Fork ............................... KY/WV WV WV WV KY/VA KY KY WV WV ................................................... Table 2 identifies the ownership of lands adjacent to the entirely aquatic Stream length Occupied at listing County(ies) skm smi Buchanan ................................. Buchanan, Dickenson, Pike ..... Buchanan ................................. Buchanan, Dickenson .............. Dickenson ................................. Dickenson ................................. Buchanan, Dickenson .............. Dickenson ................................. Dickenson ................................. Pike .......................................... Dickenson, Wise ...................... Wise ......................................... Dickenson, Wise ...................... Pike .......................................... Floyd, Johnson ......................... Pike .......................................... Pike .......................................... Buchanan, McDowell, Mingo, Wayne, Pike. Martin, Wayne .......................... McDowell .................................. McDowell .................................. McDowell .................................. Buchanan, Pike ........................ Pike .......................................... Pike .......................................... Mingo ........................................ Mingo ........................................ Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... 29.2 83.8 5.9 7.4 4.6 16.2 8.4 35.6 4.9 8.5 24.6 6.9 28.5 15.9 17.5 32.2 12.9 106.1 18.1 52.1 3.7 4.6 2.9 10.1 5.2 22.1 3.0 5.3 15.3 4.3 17.7 9.9 10.9 20.0 8.0 65.9 Yes Yes Yes Yes Yes Yes Yes Yes Yes ............... ............... ............... ............... ............... ............... ............... ............... ............... 11.7 45.2 4.6 10.7 16.6 10.1 9.1 14.0 11.1 7.3 28.1 2.9 6.6 10.3 6.3 5.7 8.7 6.9 ................................................... ....................... 582 362 Big Sandy crayfish proposed critical habitat. TABLE 2—LAND OWNERSHIP ADJACENT TO PROPOSED CRITICAL HABITAT UNITS FOR THE BIG SANDY CRAYFISH Federal State/local Private Total Critical habitat unit skm jbell on DSKJLSW7X2PROD with PROPOSALS2 Unit Unit Unit Unit 1: 2: 3: 4: smi skm smi skm smi skm smi Upper Levisa Fork ............................... Russell Fork ......................................... Lower Levisa Fork ............................... Tug Fork .............................................. 0 23 0 0 0 14 0 0 0 11 0 11 0 7 0 7 29 201 79 228 18 125 49 142 29 235 79 239 18 146 49 149 Grand Total BSC ...................................... 23 14 22 14 537 334 582 362 For the Guyandotte River crayfish, we propose to designate approximately 135 skm (84 smi) in one unit, consisting of five subunits, in West Virginia as VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 critical habitat. Approximately 67 skm (41 smi) in two subunits are considered occupied by the species at the time of listing and represent all known extant PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 populations (see table 3, below). However, we determined that these two subunits do not provide sufficient resiliency, representation, or E:\FR\FM\28JAP2.SGM 28JAP2 5080 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules redundancy to ensure the conservation of the species. Therefore, we propose to designate approximately 68 skm (42 smi) in three subunits as unoccupied critical habitat (see table 3, below). The proposed subunits constitute our best assessment of areas that meet the definition of critical habitat for the Guyandotte River crayfish. TABLE 3—PROPOSED CRITICAL HABITAT UNIT FOR THE GUYANDOTTE RIVER CRAYFISH Unit/watershed Subunit Unit 1: Upper Guyandotte ................ Total: ......................................... River/stream a b State Stream length Occupied at listing County(ies) skm smi c d e Pinnacle Creek ................................ Clear Fork ........................................ Laurel Fork ...................................... Guyandotte River ............................. Indian Creek .................................... Huff Creek ....................................... WV WV WV WV WV WV Wyoming .......................................... Wyoming .......................................... Wyoming .......................................... Wyoming .......................................... Wyoming .......................................... Wyoming, Logan .............................. Yes ..................... Yes ..................... Yes ..................... No ....................... No ....................... No ....................... 28.6 24.9 13.1 35.8 4.2 28.0 17.8 15.5 8.1 22.2 2.6 17.4 ................ .......................................................... ................ .......................................................... ............................. 135 84 Table 4 identifies the ownership of lands adjacent to the entirely aquatic Guyandotte River crayfish proposed critical habitat. TABLE 4—LAND OWNERSHIP ADJACENT TO PROPOSED CRITICAL HABITAT UNITS FOR THE GUYANDOTTE RIVER CRAYFISH Federal State/local Private Total Critical habitat unit skm skm smi skm smi skm smi Unit 1: Occupied ................................................... Unoccupied ............................................... 0 0 0 0 6 16 4 10 60 52 38 32 67 68 41 42 Grand Total GRC .............................. 0 0 23 14 112 70 135 84 Below, we present brief descriptions of all units/subunits and reasons why they meet the definition of critical habitat for the Big Sandy and Guyandotte River crayfishes. Big Sandy Crayfish Unit 1: Dismal Creek, Buchanan County, Virginia jbell on DSKJLSW7X2PROD with PROPOSALS2 smi This unit includes approximately 29.2 stream kilometers (skm) (18.1 stream miles (smi)) of Dismal Creek in the Upper Levisa Fork watershed. The threats within this unit that may need special management consideration include resource extraction (coal mining, timber harvesting, and oil and gas development); road construction and maintenance (including unpaved roads and trails); instream dredging or construction projects; and other sources of non-point source pollution. The upper limit of this unit is the confluence of Dismal Creek and Laurel Fork, and the downstream limit is the confluence of Dismal Creek and Levisa Fork. Recent surveys of Dismal Creek indicated an abundance of unembedded slab boulders and boulder clusters, and live Big Sandy crayfish have been collected in relatively high numbers from several locations within this unit (Thoma 2009b, p. 10; Loughman 2015a, p. 26). The Dismal Creek watershed is mostly forested; however, U.S. Geological Survey (USGS) topographic maps and aerial imagery (ESRI) provide evidence VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 of legacy and ongoing surface coal mining throughout the watershed. The narrow stream valley contains scattered residences and small communities, commercial facilities, occasional gas wells, and transportation infrastructure (i.e., roads and rail lines). There is a large coal coke plant straddling Dismal Creek at the confluence of Dismal Creek and Levisa Fork. This unit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. The Dismal Creek population of Big Sandy crayfish represents the species’ only representation in the upper Levisa Fork watershed, which is physically isolated from the rest of the Big Sandy basin by the Fishtrap Dam and Reservoir. The Dismal Creek population appears to be relatively robust and contributes to the representation and redundancy of the species. Unit 2: Russell Fork Unit 2 consists of the 10 subunits described below. The threats within this entire unit that may need special management consideration include resource extraction (coal mining, timber harvesting, and oil and gas development); road construction and maintenance (including unpaved roads and trails); instream dredging or construction projects; and other sources of non-point source pollution. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, Virginia, and Pike County, Kentucky Subunit 2a includes approximately 83.8 skm (52.1 smi) of the Russell Fork mainstem from the confluence of Russell Fork and Ball Creek at Council, Virginia, downstream to the confluence of Russell Fork and Levisa Fork at Levisa Junction, Kentucky. Recent surveys of the Russell Fork indicated an abundance of unembedded slab boulders, boulder clusters, isolated boulders, and large cobbles, and live Big Sandy crayfish have been captured at numerous locations within this subunit (Thoma 2009b, p. 10; Loughman 2015a, p. 23). The Russell Fork watershed is mostly forested; however, USGS topographic maps and aerial imagery (ESRI) provide evidence of legacy and ongoing coal mining throughout the watershed. In the upper portion of the watershed, the narrow stream valley contains scattered residences and roads, but human development increases farther downstream in the form of small communities and towns, commercial facilities, and transportation infrastructure (i.e., roads and rail lines). Approximately 12 skm (7.4 smi) of Subunit 2a is within the Jefferson National Forest and Breaks Interstate Park. The remainder of the subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules crossings or road easements. The Big Sandy crayfish population in Subunit 2a appears to be relatively robust and provides important connectivity between crayfish populations in several tributary streams and rivers, contributing to their resiliency. Additionally, some Big Sandy crayfish from Subunit 2a likely disperse to areas downstream in the Levisa Fork basin, contributing to the species’ representation and redundancy. jbell on DSKJLSW7X2PROD with PROPOSALS2 Subunit 2b: Hurricane Creek, Buchanan County, Virginia Subunit 2b includes approximately 5.9 skm (3.7 smi) of Hurricane Creek, a tributary to Russell Fork. This subunit extends from the confluence of Hurricane Creek and Gilbert Branch downstream to the confluence of Hurricane Creek and Russell Fork at Davenport, Virginia. Recent surveys of Hurricane Creek indicate an abundance of unembedded slab boulders, boulders, and cobbles, and live Big Sandy crayfish have been collected from two locations in lower Hurricane Creek (ATS 2009, entire; VDOT 2014, entire). The USGS topographic maps and aerial imagery (ESRI) indicate the Hurricane Creek watershed is relatively intact forest, with the exception of ongoing oil or gas development on the ridges to the north and south of the creek and scattered residences, small agricultural fields, and roads in the narrow valley. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, Virginia This subunit includes approximately 7.4 skm (4.6 smi) of Indian Creek, a tributary to Russell Fork. Subunit 2c extends from the confluence of Indian Creek and Three Forks upstream of Duty, Virginia, to the confluence of Indian Creek and Russell Fork below Davenport, Virginia. Recent surveys of Indian Creek indicate an abundance of slab boulders and boulders with low to moderate embeddedness, and live Big Sandy crayfish have been collected from several locations (ATS 2009, entire; ATS 2010, entire; Loughman 2015a, pp. 24– 25). The USGS topographic maps and aerial imagery (ESRI) indicate the lower portion of the Indian Creek watershed is mostly forested, with the exception of oil or gas development on a ridgeline to the west of the creek. The upper portion of the watershed is dominated by a large surface coal mine. The narrow creek valley contains scattered residences, VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 small agricultural fields, and roads. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2d: Fryingpan Creek, Dickenson County, Virginia Subunit 2d includes approximately 4.6 skm (2.9 smi) of Fryingpan Creek, a tributary to Russell Fork. This subunit extends from the confluence of Fryingpan Creek and Priest Fork downstream to the confluence of Fryingpan Creek and Russell Fork. Recent surveys of Fryingpan Creek indicate an abundance of isolated slab boulders and boulder clusters with low embeddedness, and live Big Sandy crayfish have been collected from the lower reach of Fryingpan Creek (Loughman 2015a, pp. 24–25). The USGS topographic maps and aerial imagery (ESRI) indicate the watershed is mostly intact forest, with the exception of oil or gas development on some adjacent ridgelines and legacy coal mining in the upper portion of the watershed. The narrow creek valley contains scattered residences, small agricultural fields, and roads. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2e: Lick Creek, Dickenson County, Virginia Subunit 2e includes approximately 16.2 skm (10.1 smi) of Lick Creek, a tributary of Russell Fork. This subunit extends from the confluence of Lick Creek and Cabin Fork near Aily, Virginia, downstream to the confluence of Lick Creek and Russell Fork at Birchfield, Virginia. Recent surveys of Lick Creek indicate an abundance of unembedded slab boulders and cobbles, with live Big Sandy crayfish collected at several locations (ATS 2012a, entire; ATS 2012b, entire). The USGS topographic maps and aerial imagery (ESRI) indicate the watershed is mostly forested, with the exception of oil or gas development on some adjacent ridgelines and legacy coal mining and timber harvesting sites at various locations within the watershed. The narrow creek valley contains scattered residences, small agricultural fields, and roads. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 5081 easements. This subunit contributes to the redundancy of the species. Subunit 2f: Russell Prater Creek, Buchanan and Dickenson Counties, Virginia This subunit includes approximately 8.4 skm (5.2 smi) of Russell Prater Creek, a tributary to Russell Fork. This subunit extends from the confluence of Russell Prater Creek and Greenbrier Creek downstream to the confluence of Russell Prater Creek and Russell Fork at Haysi, Virginia. Recent surveys of Russell Prater Creek indicate abundant unembedded slab boulders, boulders, and cobbles, with live Big Sandy crayfish collected from two sites in the lower portion of the creek (Thoma 2009b, p. 10; Loughman 2015a, pp. 22– 23). The USGS topographic maps and aerial imagery (ESRI) indicate the Russell Prater watershed is mostly forested; however, legacy coal mines and valley fills occur throughout the watershed. The narrow creek valley contains scattered residences, commercial facilities, small agricultural fields, and roads. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2g: McClure River and Creek and Open Fork, Dickenson County, Virginia Subunit 2g includes approximately 35.6 skm (22.1 smi) of the McClure River and Creek, a major tributary to Russell Fork, and its tributary stream Open Fork (4.9 skm (3.0 smi)). The McClure River and Creek section extends from the confluence of McClure Creek and Wakenva Branch downstream to the confluence of McClure River and Russell Fork. Recent surveys of the McClure River indicated an often sandy bottom with unembedded, isolated slab boulders and boulder clusters, with live Big Sandy crayfish collected at several locations (Thoma 2009b, p. 18; Loughman 2015a, p. 22). The McClure River valley contains scattered residences, small communities, commercial mining-related facilities, small agricultural fields, roads, railroads, and other infrastructure. The riparian zone along much of the river appears to be relatively intact. The Open Fork section of Subunit 2g extends from the confluence of Middle Fork Open Fork and Coon Branch downstream to the confluence of Open Fork and McClure Creek at Nora, Virginia. Recent surveys of Open Fork indicated unembedded, isolated slab E:\FR\FM\28JAP2.SGM 28JAP2 5082 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 boulders and boulder clusters, with live Big Sandy crayfish collected at one location (Loughman 2015a, p. 22). The narrow valley contains scattered residences, some small agricultural fields, roads, and railroads. The USGS topographic maps and aerial imagery (ESRI) indicate the McClure River watershed is mostly forested; however, legacy and active coal mining occurs in the middle and upper portions of the watershed. Natural gas development is also apparent on many of the adjacent ridges, and recent or ongoing logging operations continue at several locations in the watershed. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2h: Elkhorn Creek, Pike County, Kentucky Subunit 2h includes approximately 8.5 skm (5.3 smi) of Elkhorn Creek, a tributary to Russell Fork. This subunit extends from the confluence of Elkhorn Creek and Mountain Branch downstream to the confluence of Elkhorn Creek and Russell Fork at Elkhorn City, Kentucky. Recent surveys indicated unembedded slab boulders and boulders in Elkhorn Creek with ‘‘extensive bedrock glides’’ in the lower reaches of the creek. Live Big Sandy crayfish were collected from under slab boulders in lower Elkhorn Creek (Loughman 2015a, pp. 18–19). The USGS topographic maps and aerial imagery (ESRI) indicate the watershed is mostly forested; however, significant legacy and active coal mining and other mining and quarrying occurs in the watershed. Human development, in the form of small communities, residences, small agricultural fields, and commercial and industrial facilities, as well as roads, railroads, and other infrastructure, occurs almost continually in the riparian zone along Elkhorn Creek. The watershed to the south of Elkhorn Creek is a unit of the Jefferson National Forest; however, Subunit 2h is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson and Wise Counties, Virginia This subunit includes approximately 24.6 skm (15.3 smi) of Cranes Nest River, a major tributary to Russell Fork, VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 and approximately 6.9 skm (4.3 smi) of Birchfield Creek, a tributary to Cranes Nest River. The Cranes Nest River section of Subunit 2i extends from the confluence of Cranes Nest River and Birchfield Creek downstream to the confluence of Cranes Nest River and Lick Branch. Recent surveys of the Cranes Nest River indicated abundant unembedded slab boulders, boulder clusters, isolated boulders, and coarse woody debris, and live Big Sandy crayfish have been collected at multiple sites (Thoma 2009b, p. 10; VDOT 2014b, entire; VDOT 2015, entire; Loughman 2015a, pp. 21–22). The riparian zone of this section is largely intact; however, human development, in the form of residences, small communities, small agricultural fields, roads, railroads, and other infrastructure, occurs along some segments of Cranes Nest River. The Birchfield Creek section of this subunit extends from the confluence of Birchfield Creek and Dotson Creek downstream to the confluence of Birchfield Creek and Cranes Nest River. Recent surveys resulted in observations of live Big Sandy crayfish from a site in the lower portion of Birchfield Creek. Human development, in the form of residences, roads, and other infrastructure, occurs in the riparian zone along Birchfield Creek. The USGS topographic maps and aerial imagery (ESRI) indicate the Cranes Nest River watershed is mostly forested; however, significant legacy and active coal mining is evident throughout the watershed. Natural gas development is ongoing on some of the ridges adjacent to the Cranes Nest River. Approximately 10.3 skm (6.4 smi) of Subunit 2i is within the John W. Flannagan Recreation Area. The remainder of the subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Since 1964, this subunit has been physically isolated from the Russell Fork by the John W. Flannagan Dam and Reservoir. The Big Sandy crayfish population in Subunit 2i appears to be relatively robust and contributes to the redundancy of the species. Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia Subunit 2j includes approximately 28.5 skm (17.7 smi) of the Pound River, a major tributary to Russell Fork that has been physically isolated from that river since 1964 by the John W. Flannagan Dam and Reservoir. This subunit extends from the confluence of Pound River and Bad Creek downstream to the confluence of Pound River and PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 Jerry Branch. Recent surveys indicate abundant unembedded slab boulders, boulders, and boulder clusters in the riffle and run sections, and live Big Sandy crayfish have been collected from multiple locations (Thoma 2009b, entire; VHB, Inc. 2011, entire; Loughman 2015a, p. 21). The USGS topographic maps and aerial imagery (ESRI) indicate the Pound River watershed is mostly forested; however, significant legacy and recent coal mining is evident, especially to the south of the river. Aerial imagery also indicates recent or ongoing logging operations at several locations in the watershed. Much of the immediate riparian zone is intact forest, with occasional human development in the form of small communities, residences, small agricultural fields, commercial development, and roads and other infrastructure adjacent to the river. Approximately 11.4 skm (7.1 smi) of Subunit 2j is within the John W. Flannagan Recreation Area. The remainder of the subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. The Big Sandy crayfish population in Subunit 2j appears to be relatively robust and contributes to the redundancy of the species. Unit 3: Lower Levisa Fork Unit 3 consists of the two subunits described below. The threats within this entire unit that may need special management consideration include resource extraction (coal mining, timber harvesting, and oil and gas development); road construction and maintenance (including unpaved roads and trails); instream dredging or construction projects; and other sources of non-point source pollution. Subunit 3a: Levisa Fork, Pike, Floyd, and Johnson Counties, Kentucky Subunit 3a includes approximately 33.4 skm (20.8 smi) of the mainstem Levisa Fork in two disjunct segments. The upstream segment includes approximately 15.9 skm (9.9 smi) of the Levisa Fork from its confluence with the Russell Fork at Levisa Junction, Kentucky, downstream to the confluence of Levisa Fork and Island Creek at Pikeville, Kentucky. Surveys indicate that suitable unembedded boulder habitat is present in the Levisa Fork, and live Big Sandy crayfish have been recently collected both upstream of Subunit 3a in the Russell Fork and at one location near Pikeville, Kentucky (Thoma 2010, pp. 5–6; Loughman 2015a, pp. 5–10). E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 The downstream segment of Subunit 3a includes approximately 17.5 skm (10.9 smi) of the Levisa Fork near Auxier, Kentucky, from the confluence of Levisa Fork and Abbott Creek downstream to the confluence of Levisa Fork and Miller Creek. Recent surveys indicate isolated boulder clusters in this segment, with live Big Sandy crayfish collected from two locations (Thoma 2009b, entire; Loughman 2014, pp. 12– 13). The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 3a watershed is mostly forested; however, legacy and ongoing coal mining is evident in several locations. Human development, in the form of towns, small communities, residences, small agricultural fields, commercial and industrial development, roads, railroads, and other infrastructure, occurs nearly continuously in the riparian zone of these segments of the Levisa Fork. Subunit 3a is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. The upper segment of the subunit provides connectivity between the Russell Fork and Shelby Creek populations (discussed below), and the lower segment supports the most downstream population of Big Sandy crayfish in the Levisa Fork basin. Because the natural habitat characteristics (e.g., size, gradient, bottom substrate) in the Levisa Fork differ from those in the upper tributaries, this subunit increases Big Sandy crayfish representation as well as the species’ redundancy. Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky This subunit includes approximately 32.2 skm (20.0 smi) of Shelby Creek, a tributary to Levisa Fork, and approximately 12.9 skm (8.0 smi) of Long Fork, a tributary to Shelby Creek. The Shelby Creek portion of this subunit extends from the confluence of Shelby Creek and Burk Branch downstream to the confluence of Shelby Creek and Levisa Fork at Shelbiana, Kentucky. The Long Fork portion of Subunit 3b extends from the confluence of Right Fork Long Fork and Left Fork Long Fork downstream to the confluence of Long Fork and Shelby Creek at Virgie, Kentucky. Recent surveys of this subunit indicated an abundance of unembedded slab boulders, boulder clusters, and anthropogenic structures such as concrete slabs and blocks in Shelby Creek and Long Fork, and live Big Sandy crayfish have been collected at multiple locations within this subunit VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (Thoma 2010, pp. 5–6; Loughman 2015a, p. 18). The USGS topographic maps and aerial imagery (ESRI) indicate the Shelby Creek watershed is mostly forested; however, several large surface coal mines are evident west of the creek. The Long Fork watershed is also mostly forested; however, legacy and active coal mining is evident in the upper portion of this watershed. Human development, in the form of towns, small communities, residences, small agricultural fields, commercial and industrial development, roads, railroads, and other infrastructure, occurs nearly continuously in the riparian zone of Shelby Creek. In the riparian zone of Long Fork, residences, small agricultural fields, roads, and other infrastructure occur nearly continuously. Subunit 3b is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit maintains the most robust population of Big Sandy crayfish in the lower Levisa Fork (as indicated by recent survey capture rates) and increases the representation and redundancy of the species. Unit 4: Tug Fork Unit 4 consists of the seven subunits described below. The threats within this entire unit that may need special management consideration include resource extraction (coal mining, timber harvesting, and oil and gas development); road construction and maintenance (including unpaved roads and trails); instream dredging or construction projects; and other sources of non-point source pollution. Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West Virginia; Buchanan County, Virginia; and Pike County, Kentucky Subunit 4a includes approximately 117.8 skm (73.2 smi) of the Tug Fork mainstem in two disjunct segments. The upstream segment includes approximately 106.1 skm (65.9 smi) of the Tug Fork from the confluence of Tug Fork and Elkhorn Creek at Welch, West Virginia, downstream to the confluence of Tug Fork and Blackberry Creek in Pike County, Kentucky. Surveys indicate that suitable unembedded boulder habitat is sparse and discontinuous in this segment of the Tug Fork; however, live Big Sandy crayfish have been collected at four locations within this subunit (Loughman 2015a, p. 16). The downstream segment includes approximately 11.7 skm (7.3 smi) of the Tug Fork near Crum, West Virginia, from the confluence of Tug Fork and PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 5083 Bull Creek downstream to the confluence of Tug Fork and Little Elk Creek. The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 4a watershed is mostly forested; however, there is evidence of legacy and ongoing coal mining throughout the subunit. The riparian zone in the upper segment of Subunit 4a is relatively intact, with human development consisting primarily of road and railroad corridors. In the lower segment of the subunit, towns, small communities, residences, small agricultural fields, commercial and industrial development, roads, railroads, and other infrastructure become prevalent. Subunit 4a is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Because of the diversity of natural habitat characteristics (e.g., size, gradient, bottom substrate) in this subunit, it contributes to Big Sandy crayfish representation and redundancy. This subunit provides habitat for the Big Sandy crayfish, as well as providing potential connectivity between the Dry Fork, Panther Creek, Knox Creek, Peter Creek, Blackberry Creek, and Pigeon Creek populations (discussed below). Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West Virginia This subunit includes approximately 45.2 skm (28.1 smi) of Dry Fork, a large tributary to the Tug Fork, and approximately 4.6 skm (2.9 smi) of Bradshaw Creek, a tributary to Dry Fork. The Dry Fork portion of Subunit 4b extends from the confluence of Dry Fork and Jacobs Fork downstream to the confluence of Dry Fork and Tug Fork at Iaeger, West Virginia. The Bradshaw Creek portion extends from the confluence of Bradshaw Creek and Hite Fork at Jolo, West Virginia, downstream to the confluence of Bradshaw Creek and Dry Fork at Bradshaw, West Virginia. Recent surveys indicate abundant unembedded slab boulders, boulders, boulder clusters, and large cobbles, with live Big Sandy crayfish collected at numerous locations within this subunit (Loughman 2013, pp. 7–8; Loughman 2014, pp. 10–11; Loughman 2015a, pp. 14–15). The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 4b watershed is mostly forested; however, legacy coal mining is evident throughout, and natural gas development is apparent in the upper portions of the watershed. The riparian zone in the upper portion of Dry Fork is relatively intact, with human development consisting primarily of E:\FR\FM\28JAP2.SGM 28JAP2 5084 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules road and railroad corridors. In the middle and lower portions of Dry Fork, small communities, residences, small agricultural fields, commercial and industrial development, roads, railroads, and other infrastructure become prevalent. The Bradshaw Creek riparian zone is dominated by residences, small agricultural fields, roads, and other infrastructure. The middle portion of Dry Fork passes through the Berwind Lake State Wildlife Management Area; otherwise, Subunit 4b is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit appears to maintain a relatively robust population of the Big Sandy crayfish and likely serves as a source population for areas downstream in the Tug Fork basin. This subunit contributes to the redundancy of the species. jbell on DSKJLSW7X2PROD with PROPOSALS2 Subunit 4c: Panther Creek, McDowell County, West Virginia This subunit includes approximately 10.7 skm (6.6 smi) of Panther Creek, a tributary to Tug Fork. Subunit 4c extends from the confluence of Panther Creek and George Branch downstream to the confluence of Panther Creek and Tug Fork at Panther, West Virginia. Big Sandy crayfish have been collected at one site in the lower portion of this subunit. The USGS topographic maps and aerial imagery (ESRI) indicate the majority of the Panther Creek watershed is intact forest with evidence of only limited legacy coal mining. The riparian zone of this narrow valley is largely intact, containing a road and occasional residences (mostly in the lower portion of the subunit). Approximately 6.1 skm (3.8 smi) of Subunit 4c is located within the Panther State Forest, and the remainder is located on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike County, Kentucky Subunit 4d includes approximately 16.6 skm (10.3 smi) of Knox Creek, a tributary to Tug Fork. This subunit extends from the confluence of Knox Creek and Cedar Branch downstream to the confluence of Knox Creek and Tug Fork in Pike County, Kentucky. Recent surveys indicated abundant unembedded slab boulders, boulders, and boulder clusters, with live Big Sandy crayfish collected at four sites in the Kentucky portion of the creek VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (Thoma 2010, p. 5; Loughman 2015a, p. 12). The USGS topographic maps and aerial imagery (ESRI) indicate the Knox Creek watershed is mostly forested, with evidence of significant legacy, recent, and ongoing coal mining in the watershed. In the upper portion of this subunit, human development in the form of small communities, residences, roads, railroads, and other infrastructure is common. In the middle and lower sections, the riparian zone is relatively intact, except for scattered residences and a road and railroad line. Subunit 4d is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. This subunit contributes to the redundancy of the species. Subunit 4e: Peter Creek, Pike County, Kentucky Subunit 4e includes approximately 10.1 skm (6.3 smi) of Peter Creek, a tributary to Tug Fork. This subunit extends from the confluence of Left Fork Peter Creek and Right Fork Peter Creek at Phelps, Kentucky, downstream to the confluence of Peter Creek and Tug Fork at Freeburn, Kentucky. Recent surveys indicate moderate sedimentation issues in Peter Creek, but some unembedded bottom substrates continue to be present (Loughman 2015a, p. 12). Big Sandy crayfish have been collected at two sites in the lower portion of this subunit. The USGS topographic maps and aerial imagery (ESRI) indicate the Peter Creek watershed is mostly forested, with evidence of significant legacy, recent, and ongoing coal mining throughout the watershed. The riparian zone in Subunit 4e is dominated by human development in the form of small communities, residences, roads, railroads, and other infrastructure. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Subunit 4e contributes to the redundancy of the species. Subunit 4f: Blackberry Creek, Pike County, Kentucky Subunit 4f includes approximately 9.1 skm (5.7 smi) of Blackberry Creek, a tributary to Tug Fork. This subunit extends from the confluence of Blackberry Creek and Bluespring Branch downstream to the confluence of Blackberry Creek and Tug Fork. Recent surveys indicate moderate sedimentation in Blackberry Creek, but some unembedded bottom substrates continue to be present (Loughman 2015a, p. 12). Big Sandy crayfish have been collected at two sites in the lower portion of this subunit. The USGS PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 topographic maps and aerial imagery (ESRI) indicate the Blackberry Creek watershed is mostly forested, with evidence of significant legacy, recent, and ongoing coal mining throughout the watershed. The narrow riparian zone in Subunit 4f is dominated by human development in the form of small communities, residences, roads, and other infrastructure. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Subunit 4f contributes to the redundancy of the species. Subunit 4g: Pigeon Creek and Laurel Creek, Mingo County, West Virginia Subunit 4g includes approximately 14.0 skm (8.7 smi) of Pigeon Creek, a tributary to Tug Fork, and approximately 11.1 skm (6.9 smi) of Laurel Fork, a tributary to Pigeon Creek. The Pigeon Creek portion of this subunit extends from the confluence of Pigeon Creek and Trace Fork downstream to the confluence of Pigeon Creek and Tug Fork. The Laurel Creek portion extends from the confluence of Laurel Fork and Lick Branch 0.6 skm (0.4 smi) downstream of the Laurel Lake dam to the confluence of Laurel Fork and Pigeon Creek at Lenore, West Virginia. Recent surveys indicate the bottom substrates in Pigeon Creek consist of fine sediments, sand, and occasional boulders, with Big Sandy crayfish collected at a single site (Loughman 2015a, p. 11). Laurel Fork maintains a bottom substrate of sand, gravel, cobble, and occasional slab boulders, with Big Sandy crayfish collected at two sites (Loughman 2015a, pp. 10–11). The USGS topographic maps and aerial imagery (ESRI) indicate the Pigeon Creek watershed is mostly forested, with evidence of significant legacy, recent, and ongoing coal mining and valley fills in the upper portion of the watershed. The Pigeon Creek riparian zone is dominated by human development in the form of small communities, residences, roads, railroads, and other infrastructure. The majority of the Laurel Creek watershed is within the Laurel Creek State Wildlife Management Area and is mostly intact forest; however, the narrow riparian zone is dominated by human development in the form of residences, roads, and other infrastructure. Subunit 4g is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. With the exception of the Big Sandy crayfish occurrence in the Tug Fork mainstem near Crum, West Virginia, Subunit 4g supports the most E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules downstream Big Sandy crayfish population in the Tug Fork watershed. Therefore, this subunit contributes to the representation and redundancy of the species. Guyandotte River Crayfish Unit 1: Upper Guyandotte We propose to designate a single critical habitat unit (Unit 1), consisting of five subunits, for the Guyandotte River crayfish. The threats within this entire unit that may need special management consideration include resource extraction (coal mining, timber harvesting, and oil and gas development); road construction and maintenance (including unpaved roads and trails); instream dredging or construction projects; and other sources of non-point source pollution. In addition, subunits 1a and 1e may need special management consideration from the threat of ORV use. The subunits are described below. jbell on DSKJLSW7X2PROD with PROPOSALS2 Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia This subunit includes approximately 28.6 skm (17.8 smi) of Pinnacle Creek, a tributary to the Guyandotte River. Subunit 1a extends from the confluence of Pinnacle Creek and Beartown Fork downstream to the confluence of Pinnacle Creek and the Guyandotte River at Pineville, West Virginia. The USGS topographic maps and aerial imagery (ESRI) indicate the Pinnacle Creek watershed is mostly forested; however, legacy, recent, and ongoing coal mining is evident in the watershed. The riparian zone in this subunit is mostly intact, with human development consisting of unimproved roads or trails. In the lower portion of the subunit, some commercial and coal-related facilities are adjacent to the creek. This subunit is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Recent surveys of Pinnacle Creek confirmed the presence of the Guyandotte River crayfish at five sites in the upper portion of the creek, with the bottom substrate being characterized as gravel, with unembedded cobbles, small boulders, and isolated slab boulders. Substrate embeddedness was reported to increase markedly in downstream reaches (Loughman 2015b, p. 11). As one of only two known Guyandotte River crayfish populations, this subunit provides critical representation and redundancy for the species. VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West Virginia Subunit 1b includes approximately 38.0 skm (23.6 smi) of Clear Fork and its primary tributary Laurel Fork. This subunit extends from the confluence of Laurel Creek and Acord Branch downstream to the confluence of Clear Fork and the Guyandotte River. The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 1b watershed is mostly forested; however, coal mining activity occurs throughout the subunit. Human development is prevalent in the riparian zone in this subunit and consists of communities, residences, commercial facilities, agricultural fields, roads, railroads, and other infrastructure. Approximately 6.2 skm (3.9 smi) of Subunit 1b is within the R.D. Bailey Lake State Wildlife Management Area, and the remainder is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Surveys confirmed the Guyandotte River crayfish at six sites within this subunit, with the stream bottom substrate generally characterized as sand with abundant unembedded slab boulders, boulders, or boulder clusters (Loughman 2015b, pp. 9–10). Of the two remaining Guyandotte River crayfish populations, Subunit 1b contains the most robust population and provides critical representation and redundancy for the species. Subunit 1c: Guyandotte River, Wyoming County, West Virginia Because we have determined occupied areas are not adequate for the conservation of the Guyandotte River crayfish, we have evaluated whether any unoccupied areas are essential for the conservation of the species and identified this area as essential for the conservation of the species. Subunit 1c includes approximately 35.8 skm (22.2 smi) of the Guyandotte River from its confluence with Pinnacle Creek at Pineville, West Virginia, downstream to its confluence with Clear Fork. The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 1c watershed is mostly forested; however, some legacy and ongoing coal mining is evident along with natural gas development on adjacent ridges. In the lower portion of the subunit, the riparian zone is largely intact, with the exception of road and railroad rights-ofway. In the middle and upper portions of this subunit, human development in the riparian zone increases and consists of communities, residences, commercial facilities, agricultural fields, roads, PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 5085 railroads, and other infrastructure. Approximately 15.0 skm (9.3 smi) of Subunit 1c is located within the R.D. Bailey Lake State Wildlife Management Area, and the remainder is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Although it is considered unoccupied, this subunit contains at least two of the physical or biological features (PBFs) essential to the conservation of the Guyandotte River crayfish, and we are reasonably certain that it will contribute to the conservation of the species. This subunit maintains ‘‘optimal’’ Guyandotte River crayfish habitat, including abundant unembedded slab boulders, boulders, boulder clusters, and cobble (PBF 1) (Loughman 2015b, pp. 22–24). Along with providing potential habitat for the Guyandotte River crayfish and thereby increasing its redundancy, this subunit provides connectivity (PBF 6) between the extant Pinnacle Creek and Clear Fork populations and provides connectivity between these two populations and the proposed unoccupied critical habitat subunit at Indian Creek (Subunit 1d, described below). Subunit 1d: Indian Creek, Wyoming County, West Virginia Because we have determined occupied areas are not adequate for the conservation of the Guyandotte River crayfish, we have evaluated whether any unoccupied areas are essential for the conservation of the species and identified this area as essential for the conservation of the species. Subunit 1d includes approximately 4.2 skm (2.6 smi) of Indian Creek, a tributary to the Guyandotte River. This subunit extends from the confluence of Indian Creek and Brier Creek at Fanrock, West Virginia, downstream to the confluence of Indian Creek and the Guyandotte River. The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 1d watershed is mostly intact forest, with evidence of legacy coal mining and natural gas drilling on the adjacent slopes. Residences, roads, and other infrastructure occur in the narrow riparian zone. Approximately 1.3 skm (0.8 smi) of Subunit 1d is located within the R.D. Bailey Lake State Wildlife Management Area, and the remainder is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Although it is considered unoccupied, this subunit contains at least two of the physical or biological features essential to the conservation of the Guyandotte E:\FR\FM\28JAP2.SGM 28JAP2 5086 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 River crayfish, and we are reasonably certain that it will contribute to the conservation of the species. This subunit represents the type location for the Guyandotte River crayfish, with specimens last collected in 1947. The best available survey data (Loughman 2015b, p. 14) indicate this subunit maintains unembedded slab boulders and boulders in the faster moving stream sections, with some sedimentation observed in slow or slack water sections (PBF 1). This subunit is located approximately midway between the extant Pinnacle Creek and Clear Fork populations and, if recolonized, would increase the redundancy of the Guyandotte River crayfish and contribute to population connectedness within the species’ range (PBF 6). Subunit 1e: Huff Creek, Wyoming and Logan Counties, West Virginia Because we have determined occupied areas are not adequate for the conservation of the Guyandotte River crayfish, we have evaluated whether any unoccupied areas are essential for the conservation of the species and identified this area as essential for the conservation of the species. Subunit 1e includes approximately 28.0 skm (17.4 smi) of Huff Creek, a tributary of the Guyandotte River. This subunit extends from the confluence of Huff Creek and Straight Fork downstream to the confluence of Huff Creek and the Guyandotte River at Huff, West Virginia. The USGS topographic maps and aerial imagery (ESRI) indicate the Subunit 1e watershed is mostly intact forest, with evidence of legacy and ongoing coal mining and legacy natural gas drilling on the adjacent slopes. Human development, in the form of residences, roads, and other infrastructure, occurs in the narrow riparian zone throughout this subunit. Subunit 1e is located almost entirely on private land, except for any small amount that is publicly owned in the form of bridge crossings or road easements. Although it is considered unoccupied, this subunit contains at least one of the physical or biological features essential to the conservation of the Guyandotte River crayfish, and we are reasonably certain that it will contribute to the conservation of the species. The best available survey data (Loughman 2015b, pp. 14–15) indicate this subunit maintains unembedded slab boulders and boulder clusters with only minimal sedimentation (PBF 1). Guyandotte River crayfish were last collected from this subunit in 1989. While the R.D. Bailey Dam, constructed in 1980, prevents connectivity between this subunit and the extant Guyandotte River VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 crayfish populations upstream, successful reintroduction of the species to this subunit would contribute to the species’ redundancy. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final regulation with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Service Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law), and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions. Application of the ‘‘Adverse Modification’’ Standard The key factor related to the adverse modification determination is whether implementation of the proposed Federal E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical and 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 the Service may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to: (1) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive erosion and sedimentation from coal mining or abandoned mine lands, oil or natural gas development, timber harvests, unpaved forest roads, road construction, channel alteration, offroad vehicle use, and other landdisturbing activities in the watershed and floodplain. Sedimentation from these activities could lead to stream bottom embeddedness that eliminates or reduces the sheltering habitat necessary for the conservation of these crayfish species. (2) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, dredging, impoundment, road and bridge construction, pipeline construction, and destruction of riparian vegetation. These activities may cause changes in water flows or channel stability and lead to increased sedimentation and stream bottom embeddedness that eliminates or reduces the sheltering habitat necessary for the conservation of these crayfish species. (3) Actions that would significantly alter water chemistry or temperature. Such activities could include, but are not limited to, the release of chemicals, fill, 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 Big Sandy or Guyandotte River crayfish and result in direct or cumulative adverse effects to individual crayfish. VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: ‘‘The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.’’ There are no Department of Defense (DoD) lands with a completed INRMP within the proposed critical habitat designation. Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate 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. The first sentence in section 4(b)(2) of the Act requires that we take into consideration the economic, national security, or other relevant impacts of designating any particular area as critical habitat. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. 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 the impacts that a specific PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 5087 critical habitat designation may have on restricting or modifying 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 for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, which includes the existing regulatory and socioeconomic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis. For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Big Sandy and Guyandotte River crayfishes (Industrial Economics, Incorporated (IEc) 2019, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5088 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 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 on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis also assesses whether units/subunits are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species which may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis of the proposed critical habitat designation for the Big Sandy and Guyandotte River crayfishes 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 critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Big Sandy and Guyandotte River crayfishes, first we identified, in the IEM dated August 14, 2019 (Service 2019, entire), probable incremental economic impacts associated with the following categories of activities: (1) Watershed and stream restoration activities; (2) construction of recreation improvements and management of recreation activities; (3) energy extraction (coal, oil, and gas) and VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 maintenance/management of facilities (e.g., abandoned mine lands, active mines, pipelines); (4) road and bridge maintenance; (5) pesticide use; (6) timber harvest; (7) agriculture; and (8) instream emergency response activities. We considered each industry or category individually. Additionally, we considered whether their 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. In areas where the Big Sandy and Guyandotte River crayfishes are present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. In our IEM, we attempted to clarify the distinction between the effects that will 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 Big Sandy or Guyandotte River crayfishes’ critical habitat. Because all of the units/ subunits we are proposing to designate as critical habitat for the Big Sandy crayfish are occupied, we do not expect that the critical habitat designation will result in any additional consultations. The conservation recommendations provided to address impacts to the occupied critical habitat will be the same as those recommended to address impacts to the species because the habitat tolerances of the Big Sandy crayfish are inextricably linked to the health, growth, and reproduction of the crayfish, which are present year-round in their occupied streams. Furthermore, because the proposed critical habitat and the Big Sandy crayfish’s known range are identical, the results of consultation under adverse modification are not likely to differ from the results of consultation under jeopardy. In the event of an adverse modification determination, we expect that reasonable and prudent alternatives to avoid jeopardy to the species would also avoid adverse modification of the critical habitat. The only incremental impact of critical habitat designation that we anticipate is the small administrative effort required during section 7 consultation to document PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 effects on the physical and biological features of the critical habitat and whether the action appreciably diminishes the value of critical habitat as a whole for the conservation of the listed species. The above conclusion is also accurate for the occupied Guyandotte River crayfish subunits (1a and 1b). For the unoccupied Guyandotte River crayfish subunits (1c, 1d, and 1e), we anticipate project modifications may result in the future from consultations on one planned surface mining project as well as one existing surface mining project. Examples of project modifications may include, but are not limited to, sediment monitoring, chemical testing, macroinvertebrate monitoring, installing box culverts at all stream crossings, collocating valley fills or constructing regarded backstacks, and maintaining a spill response plan (IEc 2019, p. 15). Informed by discussions with a mining company operating in Guyandotte River crayfish occupied habitat, the cost estimates associated with such project modifications are projected to be relatively minor, ranging from $30,000 to $60,000 in the year of implementation. The proposed critical habitat designation for the Big Sandy crayfish totals approximately 582 skm (362 smi), all of which is currently occupied by the species. The proposed critical habitat designation for the Guyandotte River crayfish totals approximately 135 skm (84 smi), of which approximately 49 percent is currently occupied by the species. As stated in the DEA (IEc 2019, p. 1), critical habitat designation for the Big Sandy and Guyandotte River crayfish would be unlikely to generate costs exceeding $100 million in a single year, and therefore would not be significant. The direct section 7 costs would most likely be limited to additional administrative effort to consider adverse modification, as well as the project modifications discussed above, in unoccupied habitat for the Guyandotte River crayfish. All of the proposed critical habitat units/subunits for the Big Sandy crayfish and two subunits of critical habitat for the Guyandotte River crayfish are occupied year-round by these species. Within occupied habitat, regardless of whether critical habitat is designated, all projects with a Federal nexus are already subject to section 7 requirements. The administrative time required to address critical habitat in these consultations is minor. The results of consultation for adverse modification are not likely to differ from the results of consultation for jeopardy. Three subunits of critical habitat for the E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules Guyandotte River crayfish are currently unoccupied by the species. Section 7 consultations for all projects with a Federal nexus in this unoccupied habitat would be fully attributable to the critical habitat designation. We anticipate incremental project modifications resulting from these consultations, including for existing and planned surface mines. Based on the rate of historical consultations in occupied units/ subunits, these two species are likely to generate a total of approximately 285 consultations and technical assistances in a given year. The total additional administrative cost of addressing adverse modification in these new and existing consultations is not expected to exceed $860,000 to $920,000, depending on the range of cost estimates for unoccupied critical habitat (see below), in a given year. This value likely overestimates the cost because technical assistance consultations, which cost substantially less, cannot be separated from informal consultations in the consultation information provided to the economists. The cost of project modifications resulting from currently identified existing and future activities in unoccupied habitat for the Guyandotte River crayfish range from $30,000 to $60,000 in a given year. Further, the designation of critical habitat is not expected to trigger additional requirements under State or local regulations. Additionally, because the proposed critical habitat is located in stretches of river, rather than on land, impacts on property values resulting from the perception of additional regulation are unlikely. Project modifications in unoccupied habitat for the Guyandotte River crayfish have the potential to increase conservation in these areas, resulting in an incremental benefit. Data limitations preclude IEc’s ability to monetize these benefits; however, these benefits are unlikely to exceed $100 million in a given year. The proposed units with the highest potential costs resulting from the designation of critical habitat are Unit 2 for the Big Sandy crayfish and the unoccupied subunits of Unit 1 for the Guyandotte River crayfish. Proposed Unit 2 for the Big Sandy crayfish (Russell Fork, spanning both Kentucky and Virginia) contains the most stream miles with adjacent Federal land ownership and, therefore, a higher probability of intersecting with projects or activities with a Federal nexus that require consultation. Because proposed Unit 1 for the Guyandotte River crayfish (in West Virginia) includes unoccupied stream miles, requests for project VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 modifications would be likely for existing and planned surface mines. As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of this proposed rule and our required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. During the development of a final designation, we will consider any additional economic impact information we receive during the public comment period (see DATES, above), and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Consideration of National Security Impacts Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i) of the Act, national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of ‘‘critical habitat.’’ Nevertheless, when designating critical habitat under section 4(b)(2) of the Act, the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section 4(a)(3)(B)(i) of the Act. Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns. We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing bordersecurity patrols and surveillance PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 5089 activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Big Sandy and the Guyandotte River crayfishes are not owned or managed by DoD or DHS, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise his discretion to exclude any areas from the final designation based on impacts on national security unless we receive new information on such impacts during the public comment period. Consideration of Other Relevant Impacts We have not considered any areas for exclusion from critical habitat. As explained above, there are no DoD or national security impacts, and as described below, there are no Tribal trust impacts associated with the proposed designation. 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. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES, above). Exclusions Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and E:\FR\FM\28JAP2.SGM 28JAP2 5090 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 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 Big Sandy or Guyandotte River crayfishes, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. During the development of a final designation, we will consider any information currently available or received during the public comment period regarding the economic, national security, or other relevant impacts of the proposed designation and will determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. Required Determinations jbell on DSKJLSW7X2PROD with PROPOSALS2 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 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 long, the sections where you feel lists or tables would be useful, etc. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order (E.O.) 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 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 by this designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if adopted as proposed, the 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 adopted, the proposed critical habitat designation E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. Executive Order 13771 This proposed rule is not an 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. jbell on DSKJLSW7X2PROD with PROPOSALS2 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. Coal mining, pipeline and utility crossings, and oil and gas exploration activities regularly occur within the range of the Big Sandy and Guyandotte River crayfishes and their proposed critical habitat units/subunits (Service 2019, pp. 7–8). These are routine activities that the Service consults on with the Office of Surface Mining, the Federal Energy Regulatory Commission, and the U.S. Army Corps of Engineers under section 7 of the Act. In our draft economic analysis (DEA), we do not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use. As discussed in the DEA, the costs associated with consultations related to occupied critical habitat would be largely administrative in nature and the costs associated with the two mining projects in unoccupied critical habitat are estimated not to exceed $60,000 per year (IEc 2019, pp. 1, 14–15). The full cost of the entire proposed designation is not expected to exceed $920,000 per year, which does not reach the significant threshold of $100 million per year. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. 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 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 5091 (2) We do not believe that this rule would significantly or uniquely affect small governments. The waters we are proposing to designate as critical habitat are owned by the States of Kentucky, Virginia, and West Virginia. None of these government entities fits 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 the Big Sandy and Guyandotte River crayfishes in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for the Big Sandy and Guyandotte River crayfishes does not pose significant takings implications for lands within or affected by the designation. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Kentucky, Virginia, and West Virginia. 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 E:\FR\FM\28JAP2.SGM 28JAP2 5092 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules States and local governments, or for anyone else. As a result, the rule would not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 jbell on DSKJLSW7X2PROD with PROPOSALS2 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 propose 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 designated areas of 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. Common name * CRUSTACEANS VerDate Sep<11>2014 Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Sandy or Guyandotte River crayfishes at the time of listing that contain the features essential for conservation of the species, and no tribal lands unoccupied by the Big Sandy or Guyandotte River crayfishes that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for the Big Sandy or Guyandotte River crayfishes on tribal lands. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). A complete list of references cited in this proposed rule is available on the internet at http://www.regulations.gov and upon request from the North Atlantic–Appalachian Regional Office (see FOR FURTHER INFORMATION CONTACT). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands that were occupied by the Big Scientific name * 17:39 Jan 27, 2020 Where listed * Jkt 250001 PO 00000 Status * Frm 00022 Fmt 4701 References Cited Authors The primary authors of this proposed rulemaking are the staff members of the North Atlantic–Appalachian Regional Office, Kentucky Ecological Services Field Office, Southwestern Virginia Field Office, and the West Virginia Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by revising the entries for ‘‘Crayfish, Big Sandy’’ and ‘‘Crayfish, Guyandotte River’’ under ‘‘CRUSTACEANS’’ in the List of Endangered and Threatened Wildlife to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * * Listing citations and applicable rules * Sfmt 4702 * E:\FR\FM\28JAP2.SGM * 28JAP2 * 5093 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules Common name Scientific name Where listed Status * Crayfish, Big Sandy ....... * * Cambarus callainus ...... * Wherever found ............ T * Crayfish, Guyandotte River. * * Cambarus veteranus .... * Wherever found ............ E * * * 3. Amend § 17.95(h) by adding entries for ‘‘Big Sandy Crayfish (Cambarus callainus)’’ and ‘‘Guyandotte River Crayfish (Cambarus veteranus)’’ in the same order that these species appear in the table at § 17.11(h) to read as follows: ■ § 17.95 Critical habitat—fish and wildlife. * * * * (h) Crustaceans. * * * * * Big Sandy Crayfish (Cambarus callainus) (1) Critical habitat units are depicted for Martin, Pike, Johnson, and Floyd Counties, Kentucky; Buchanan, Dickenson, and Wise Counties, Virginia; and McDowell, Mingo, and Wayne Counties, West Virginia, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of the Big Sandy crayfish consist of the following components: (i) Fast-flowing stream reaches with unembedded slab boulders, cobbles, or isolated boulder clusters within an unobstructed stream continuum (i.e.. riffle, run, pool complexes) of permanent, moderate- to large-sized (generally third order and larger) streams and rivers (up to the ordinary high water mark as defined at 33 CFR 329.11). (ii) Streams and rivers with natural variations in flow and seasonal flooding sufficient to effectively transport jbell on DSKJLSW7X2PROD with PROPOSALS2 * VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 * Listing citations and applicable rules * * * 81 FR 20450, 4/7/2016; 50 CFR 17.95(h).CH * * * 81 FR 20450, 4/7/2016; 50 CFR 17.95(h).CH * sediment and prevent substrate embeddedness. (iii) Water quality characterized by seasonally moderated temperatures and physical and chemical parameters (e.g., pH, conductivity, dissolved oxygen) sufficient for the normal behavior, growth, reproduction, and viability of all life stages of the species. (iv) An adequate food base, indicated by a healthy aquatic community structure including native benthic macroinvertebrates, fishes, and plant matter (e.g., leaf litter, algae, detritus). (v) Aquatic habitats protected from riparian and instream activities that degrade the physical and biological features described in paragraphs (2)(i) through (iv) of this entry or cause physical (e.g., crushing) injury or death to individual Big Sandy crayfish. (vi) An interconnected network of streams and rivers that have the physical and biological features described in paragraphs (2)(i) through (iv) of this entry and that allow for the movement of crayfish in response to environmental, physiological, or behavioral drivers. The scale of the interconnected stream network should be sufficient to allow for gene flow within and among watersheds. (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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 * * boundaries on the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created on a base of U.S. Geological Survey digital ortho-photo quarter-quadrangles, and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 15N coordinates. ESRI’s ArcGIS 10.0 software was used to determine latitude and longitude coordinates using decimal degrees. The USA Topo ESRI online basemap service was referenced to identify features (like roads and streams) used to delineate the upstream and downstream extents of critical habitat units. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/westvirginia fieldoffice/, at http:// www.regulations.gov at Docket No. FWS–R5–ES–2019–0098, and at the North Atlantic–Appalachian Regional Office. 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 of Units 1 and 2 follows: E:\FR\FM\28JAP2.SGM 28JAP2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (6) Unit 1: Upper Levisa Fork—Dismal Creek, Buchanan County, Virginia. (i) General description: Unit 1 includes approximately 29.2 stream VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 kilometers (skm) (18.1 stream miles (smi)) of Dismal Creek from its confluence with Laurel Fork (37.234458, ¥81.862347) downstream to its PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 confluence with Levisa Fork (37.233465, ¥82.043663) in Buchanan County, Virginia. (ii) Map of Unit 1 follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.000</GPH> 5094 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 5095 EP28JA20.001</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (7) Unit 2: Russell Fork—Buchanan, Dickenson, and Wise Counties, Virginia, and Pike County, Kentucky. (i) Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, Virginia, and Pike County, Kentucky. VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (A) General description: Subunit 2a consists of approximately 83.8 skm (52.1 smi) of Russell Fork from its confluence with Ball Creek at Council, Virginia (37.077889, ¥82.062759), downstream to its confluence with PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 Levisa Fork at Levisa Junction, Kentucky (37.407259, ¥82.439904). (B) Map of Subunit 2a follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.002</GPH> 5096 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Hurricane Creek from its confluence with Gilbert Branch (37.106350, ¥82.0939999) downstream to its confluence with Russell Fork at PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 Davenport, Virginia (37.101311, ¥82.137719). (B) Map of Subunit 2b follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.003</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (ii) Subunit 2b: Hurricane Creek, Buchanan County, Virginia. (A) General description: Subunit 2b consists of approximately 5.9 skm (3.7 5097 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (iii) Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, Virginia. (A) General description: Subunit 2c consists of approximately 7.4 skm (4.6 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Indian Creek from its confluence with Three Forks in Buchanan County, Virginia (37.072393, ¥82.134788), downstream to its confluence with PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 Russell Fork in Buchanan and Dickenson Counties, Virginia (37.109915, ¥82.157881). (B) Map of Subunit 2c follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.004</GPH> 5098 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Fryingpan Creek from its confluence with Priest Fork (37.068649, ¥82.214330) downstream to its PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 confluence with Russell Fork (37.163426, ¥82.255683). (B) Map of Subunit 2d follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.005</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (iv) Subunit 2d: Fryingpan Creek, Dickenson County, Virginia. (A) General description: Subunit 2d consists of approximately 4.6 skm (2.9 5099 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (v) Subunit 2e: Lick Creek, Dickenson County, Virginia. (A) General description: Subunit 2e consists of approximately 16.2 skm VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (10.1 smi) of Lick Creek from its confluence with Cabin Fork near Aily, Virginia (37.89885, ¥82.293036), downstream to its confluence with PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 Russell Fork at Birchfield, Virginia (37.176104, ¥82.270633). (B) Map of Subunit 2e follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.006</GPH> 5100 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Russell Prater Creek from its confluence with Greenbrier Creek (37.211915, ¥82.236479) downstream to its confluence with Russell Fork at PO 00000 Frm 00031 Fmt 4701 Sfmt 4725 Haysi, Virginia (37.204347, ¥82.291918). (B) Map of Subunit 2f follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.007</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (vi) Subunit 2f: Russell Prater Creek, Buchanan and Dickenson Counties, Virginia. (A) General description: Subunit 2f consists of approximately 8.4 skm (5.2 5101 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (vii) Subunit 2g: McClure River and Open Fork, Dickenson County, Virginia. (A) General description: Subunit 2g consists of approximately 35.6 skm (22.1 smi) of the McClure River and McClure Creek from the confluence of VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 McClure Creek and Wakenva Branch (37.034201, ¥82.311081) downstream to the confluence of McClure River and Russell Fork (37.205175, ¥82.295412); and approximately 4.9 km (3.0 mi) of Open Fork from the confluence of PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 Middle Fork Open Fork and Coon Branch (37.038336, ¥82.355402) downstream to the confluence of Open Fork and McClure Creek at Nora, Virginia (37.069451, ¥82.346317). (B) Map of Subunit 2g follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.008</GPH> 5102 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Elkhorn Creek from its confluence with Mountain Branch (37.271984, ¥82.405623) downstream to its confluence with Russell Fork at PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 Elkhorn City, Kentucky (37.302386, ¥82.354708). (B) Map of Subunit 2h follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.009</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (viii) Subunit 2h: Elkhorn Creek, Pike County, Kentucky. (A) General description: Subunit 2h consists of approximately 8.5 skm (5.3 5103 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (ix) Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson and Wise Counties, Virginia. (A) General description: Subunit 2i consists of approximately 24.6 skm (19.0 smi) of the Cranes Nest River from VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 its confluence with Birchfield Creek (37.065100, ¥82.496553) downstream to its confluence with Lick Branch (37.158007, ¥82.402839) and approximately 6.9 skm (4.3 smi) of Birchfield Creek from its confluence PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 with Dotson Creek (37.055320, ¥82.552734) downstream to its confluence with Cranes Nest River (37.063510, ¥82.496553). (B) Map of Subunit 2i follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.010</GPH> 5104 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (17.7 smi) of the Pound River from its confluence with Bad Creek (37.391300, ¥82.605201) downstream to the PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 confluence of the Pound River and Jerry Branch (37.189207, ¥82.444613). (B) Map of Subunit 2j follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.011</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (x) Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia. (A) General description: Subunit 2j consists of approximately 28.5 skm 5105 5106 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 19:19 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.012</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (8) Note: Index map of Unit 3 follows: Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 19:19 Jan 27, 2020 Jkt 250001 mi) of Levisa Fork from its confluence with Russell Fork at Levisa Junction, Kentucky (37.407259, ¥82.439904), downstream to its confluence with Island Creek at Pikeville, Kentucky (37.464506, ¥82.525588); and 17.5 skm PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 (10.9 smi) of Levisa Fork from its confluence with Abbott Creek (37.687149, ¥82.783021) downstream to its confluence with Miller Creek at Auxier, Kentucky. (B) Map of Subunit 3a follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.013</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (9) Unit 3: Lower Levisa Fork—Floyd, Johnson, and Pike Counties, Kentucky. (i) Subunit 3a: Levisa Fork, Floyd, Johnson, and Pike Counties, Kentucky. (A) General description: Subunit 3a consists of approximately 15.9 km (9.9 5107 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (ii) Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky. (A) General description: Subunit 3b consists of approximately 32.2 skm (20.0 smi) of Shelby Creek from its confluence with Burk Branch VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (37.299511, ¥82.608677) downstream to its confluence with Levisa Fork at Shelbiana, Kentucky (37.426986, ¥82.497604); and approximately 12.9 skm (8.0 smi) of Long Fork from the confluence of Right Fork Long Fork and PO 00000 Frm 00038 Fmt 4701 Sfmt 4725 Left Fork Long Fork (37.286508, ¥82.663639) downstream to the confluence of Long Fork and Shelby Creek at Virgie, Kentucky (37.338841, ¥82.585800). (B) Map of Subunit 3b follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.014</GPH> 5108 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5109 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.015</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (10) Note: Index map of Unit 4 follows: Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (11) Unit 4: Tug Fork—McDowell, Mingo, and Wayne Counties, West Virginia; Buchanan County, Virginia; and Pike and Martin Counties, Kentucky. (i) Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West Virginia; Buchanan County, Virginia; VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 and Pike and Martin Counties, Kentucky. (A) General description: Subunit 4a consists of approximately 106.1 skm (65.9 smi) of the Tug Fork from its confluence with Elkhorn Creek at Welch, West Virginia (37.430721, ¥81.586455), downstream to its confluence with Blackberry Creek in PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 Pike County, Kentucky (37.607876, ¥82.162722); and 11.7 skm (7.3 smi) of the Tug Fork from its confluence with Little Elk Creek (37.885876, ¥82.421245) downstream to its confluence with Bull Creek at Crum, West Virginia (37.924275, ¥82.480983). (B) Map of Subunit 4a follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.016</GPH> 5110 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 confluence with Jacobs Fork (37.280873, ¥81.665897) downstream to its confluence with Tug Fork at Iaeger, West Virginia (37.462387, ¥81.817595); and approximately 4.6 skm (2.9 smi) of Bradshaw Creek from its confluence PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 with Hite Fork at Jolo, West Virginia (37.323526, ¥81.819835), downstream to its confluence with Dry Fork at Bradshaw, West Virginia (37.352839, ¥81.799246). (B) Map of Subunit 4b follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.017</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (ii) Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West Virginia. (A) General description: Subunit 4b consists of approximately 45.2 skm (28.1 smi) of Dry Fork from its 5111 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (iii) Subunit 4c: Panther Creek, McDowell County, West Virginia. (A) General description: Subunit 4c consists of approximately 10.7 skm (6.6 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Panther Creek from its confluence with George Branch (37.428924, ¥81.861612) downstream to its confluence with Tug Fork at PO 00000 Frm 00042 Fmt 4701 Sfmt 4725 Panther, West Virginia (37.482947, ¥81.898348). (B) Map of Subunit 4c follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.018</GPH> 5112 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (10.3 smi) of Knox Creek from its confluence with Cedar Branch (37.454923, ¥82.050515) downstream to its confluence with Tug Fork in Pike PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 County, Kentucky (37.536035, ¥82.059658). (B) Map of Subunit 4d follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.019</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (iv) Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike County, Kentucky. (A) General description: Subunit 4d consists of approximately 16.6 skm 5113 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (v) Subunit 4e: Peter Creek, Pike County, Kentucky. (A) General description: Subunit 4e consists of approximately 10.1 skm (6.3 VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Peter Creek from the confluence of Left Fork Peter Creek and Right Fork Peter Creek at Phelps, Kentucky (37.514158, ¥82.152615), downstream PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 to the confluence of Peter Creek and Tug Fork at Freeburn, Kentucky (37.566644, ¥82.144842). (B) Map of Subunit 4e follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.020</GPH> 5114 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Blackberry Creek its confluence with Bluespring Branch (37.549770, ¥82.188713) downstream to the PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 confluence of Blackberry Creek and Tug Fork (37.607876, ¥82.162722). (B) Map of Subunit 4f follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.021</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (vi) Subunit 4f: Blackberry Creek, Pike County, Kentucky. (A) General description: Subunit 4f consists of approximately 9.1 skm (5.7 5115 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules (vii) Subunit 4g: Pigeon Creek and Laurel Fork, Mingo County, West Virginia. (A) General description: Subunit 4g consists of approximately 14.0 skm (8.7 smi) of Pigeon Creek from its confluence with Trace Fork (37.773483, ¥82.237696) downstream to its confluence with Tug Fork (37.789979, ¥82.351194); and approximately 11.1 skm (6.9 smi) of Laurel Fork from its confluence with Lick Branch (37.837657, ¥82.219076) downstream to its confluence with Pigeon Creek at Lenore, West Virginia (37.796029, ¥82.287111). (B) Map of Subunit 4g follows: Guyandotte River Crayfish (Cambarus veteranus) (1) Critical habitat units are depicted for Logan and Wyoming Counties, West Virginia, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of the Guyandotte River crayfish consist of the following components: (i) Fast-flowing stream reaches with unembedded slab boulders, cobbles, or isolated boulder clusters within an unobstructed stream continuum (i.e., riffle, run, pool complexes) of permanent, moderate- to large-sized (generally third order and larger) streams and rivers (up to the ordinary high water mark as defined at 33 CFR 329.11). (ii) Streams and rivers with natural variations in flow and seasonal flooding sufficient to effectively transport sediment and prevent substrate embeddedness. (iii) Water quality characterized by seasonally moderated temperatures and physical and chemical parameters (e.g., pH, conductivity, dissolved oxygen) sufficient for the normal behavior, growth, reproduction, and viability of all life stages of the species. (iv) An adequate food base, indicated by a healthy aquatic community structure including native benthic macroinvertebrates, fishes, and plant matter (e.g., leaf litter, algae, detritus). (v) Aquatic habitats protected from riparian and instream activities that degrade the physical and biological features described in paragraphs (2)(i) through (iv) of this entry or cause physical (e.g., crushing) injury or death to individual Guyandotte River crayfish. (vi) An interconnected network of streams and rivers that have the physical and biological features described in paragraphs (2)(i) through (iv) of this entry and that allow for the movement of crayfish in response to environmental, physiological, or behavioral drivers. The scale of the interconnected stream network should be sufficient to allow for gene flow within and among watersheds. (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 the effective date of this rule. (4) Critical habitat map units. Data layers defining map units were created on a base of U.S. Geological Survey digital ortho-photo quarter-quadrangles, VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.022</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 5116 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 critical habitat units. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/westvirginia fieldoffice/, at http:// www.regulations.gov at Docket No. PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 FWS–R5–ES–2019–0098, and at the North Atlantic-Appalachian Regional Office. 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 of critical habitat for the Guyandotte River crayfish follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.023</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 and critical habitat units were then mapped using Universal Transverse Mercator (UTM) Zone 15N coordinates. ESRI’s ArcGIS 10.0 software was used to determine latitude and longitude coordinates using decimal degrees. The USA Topo ESRI online basemap service was referenced to identify features (like roads and streams) used to delineate the upstream and downstream extents of 5117 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (6) Unit 1: Upper Guyandotte—Logan and Wyoming Counties, West Virginia. (i) Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia. VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (A) General description: Subunit 1a consists of approximately 28.6 skm (17.8 smi) of Pinnacle Creek from its confluence with Beartown Fork (37.489547, ¥81.394295) downstream PO 00000 Frm 00048 Fmt 4701 Sfmt 4725 to its confluence with the Guyandotte River at Pineville, West Virginia (37.574700, ¥81.536473). (B) Map of Subunit 1a follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.024</GPH> 5118 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (23.6 smi) of Clear Fork and its primary tributary Laurel Fork from the confluence of Laurel Creek and Acord Branch (37.669908, ¥81.551222) PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 downstream to the confluence of Clear Fork and the Guyandotte River (37.607552, ¥81.730974). (B) Map of Subunit 1b follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.025</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (ii) Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West Virginia. (A) General description: Subunit 1b consists of approximately 38.0 skm 5119 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS2 (iii) Subunit 1c: Guyandotte River, Wyoming County, West Virginia. (A) General description: Subunit 1c consists of approximately 35.8 skm VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 (22.2 smi) of the Guyandotte River from its confluence with Pinnacle Creek at Pineville, West Virginia (37.574700, ¥81.536473), downstream to its PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 confluence with Clear Fork (37.607552, ¥81.730974). (B) Map of Subunit 1c follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.026</GPH> 5120 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 smi) of Indian Creek from the confluence of Indian Creek and Brier Creek at Fanrock, West Virginia (37.566268, ¥81.650848), to the PO 00000 Frm 00051 Fmt 4701 Sfmt 4725 confluence of Indian Creek and the Guyandotte River (37.587149, ¥81.664680). (B) Map of Subunit 1d follows: E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.027</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 (iv) Subunit 1d: Indian Creek, Wyoming County, West Virginia. (A) General description: Subunit 1d consists of approximately 4.2 skm (2.6 5121 5122 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules (v) Subunit 1e: Huff Creek, Wyoming and Logan Counties, West Virginia. (A) General description: Subunit 1e consists of approximately 28.0 skm (17.4 smi) of Huff Creek from its confluence with Straight Fork (37.748834, ¥81.640132) downstream to its confluence with the Guyandotte * Dated: January 15, 2020. Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. * * * * River at Huff, West Virginia (37.730736, ¥81.873387). (B) Map of Subunit 1e follows: [FR Doc. 2020–01012 Filed 1–27–20; 8:45 am] VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00052 Fmt 4701 Sfmt 9990 E:\FR\FM\28JAP2.SGM 28JAP2 EP28JA20.028</GPH> jbell on DSKJLSW7X2PROD with PROPOSALS2 BILLING CODE 4333–15–P

Agencies

[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Proposed Rules]
[Pages 5072-5122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01012]



[[Page 5071]]

Vol. 85

Tuesday,

No. 18

January 28, 2020

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Big Sandy Crayfish and the Guyandotte River Crayfish; 
Proposed Rule

Federal Register / Vol. 85 , No. 18 / Tuesday, January 28, 2020 / 
Proposed Rules

[[Page 5072]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2019-0098; 4500090023]
RIN 1018-BE19


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Big Sandy Crayfish and the Guyandotte River 
Crayfish

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Big Sandy crayfish (Cambarus 
callainus) and the Guyandotte River crayfish (C. veteranus) under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 582 stream kilometers (skm) (362 stream miles (smi)) in 
Martin and Pike Counties, Kentucky; Buchanan, Dickenson, and Wise 
Counties, Virginia; and McDowell, Mingo, and Wayne Counties, West 
Virginia, are proposed as critical habitat for the Big Sandy crayfish. 
Approximately 135 skm (84 smi) in Logan and Wyoming Counties, West 
Virginia, are proposed as critical habitat for the Guyandotte River 
crayfish. If we finalize this rule as proposed, it would extend the 
Act's protections to these species' critical habitat. We also announce 
the availability of a draft economic analysis of the proposed 
designation of critical habitat for these species.

DATES: We will accept comments on the proposed rule or draft economic 
analysis (DEA) that are received or postmarked on or before March 30, 
2020. 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 a public 
hearing, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by March 13, 2020.

ADDRESSES: Written comments: You may submit comments on the proposed 
rule or DEA by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R5-ES-2019-0098, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R5-ES-2019-0098, U.S. Fish and Wildlife 
Service, MS: JAO/1N, 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).
    Document availability: This proposed rule and the DEA are available 
on the internet at http://www.regulations.gov at Docket No. FWS-R5-ES-
2019-0098, and at the North Atlantic-Appalachian Regional Office (see 
FOR FURTHER INFORMATION CONTACT).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R5-ES-2019-0098, and at the North Atlantic-Appalachian 
Regional Office (see FOR FURTHER INFORMATION CONTACT). Any additional 
tools or supporting information that we may develop for this critical 
habitat designation will also be available at the Regional Office set 
out above, and may also be included in the preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Martin Miller, Chief, Endangered 
Species, U.S. Fish and Wildlife Service, North Atlantic-Appalachian 
Regional Office, 300 Westgate Center Drive, Hadley, MA 01035; telephone 
413-253-8615. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, any species that is 
determined to be an endangered or threatened species requires critical 
habitat to be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can only 
be completed by issuing a rule.
    This rule proposes to designate critical habitat for two species of 
crayfish, the Big Sandy crayfish and the Guyandotte River crayfish. We 
listed the Big Sandy crayfish as a threatened species and the 
Guyandotte River crayfish as an endangered species on April 7, 2016 (81 
FR 20450).
    The basis for our action. Under the Act, any species that is 
determined to be an endangered or threatened species shall, to the 
maximum extent prudent and determinable, have habitat designated that 
is considered to be critical habitat. Section 4(b)(2) of the Act states 
that the Secretary shall designate and make revisions to critical 
habitat on the basis of the best available scientific data after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impact of specifying any particular 
area as critical habitat. Section 3(5)(A) 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 protections; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species. 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.
    The critical habitat areas we are proposing to designate in this 
rule constitute our current best assessment of the areas that meet the 
definition of critical habitat for the Big Sandy and Guyandotte River 
crayfishes. We propose to designate:
     Approximately 582 stream kilometers (skm) (362 stream 
miles (smi)) of streams for the Big Sandy crayfish.
     Approximately 135 skm (84 smi) of streams for the 
Guyandotte River crayfish.
    We prepared an economic analysis of the proposed designation of 
critical habitat. In order to consider economic impacts, we prepared an 
analysis of the economic impacts of the proposed critical habitat 
designation. We hereby announce the availability of the draft economic 
analysis and seek public review and comment.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270), we are 
seeking comments

[[Page 5073]]

from independent specialists to ensure that this critical habitat 
proposal is based on scientifically sound data and analyses. We have 
invited these peer reviewers to comment on our specific assumptions and 
conclusions in this proposal to designate critical habitat. Because we 
will consider all comments and information we receive during the 
comment period, our final determinations may differ from this proposal.

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 reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to answer the following questions:
    (a) Are the species threatened by taking or other human activity, 
and would identification of critical habitat be expected to increase 
the degree of such threat to the species?
    (b) Is the present or threatened destruction, modification, or 
curtailment of a species' habitat or range a threat to the species, or 
do the threats to the species' habitats stem solely from causes that 
cannot be addressed through management actions resulting from 
consultation under section 7(a)(2) of the Act?
    (c) Do any areas meet the definition of critical habitat?
    (2) Specific information on:
    (a) The amount and distribution of Big Sandy crayfish or Guyandotte 
River crayfish habitat;
    (b) What areas, that were occupied at the time of listing (i.e., 
are currently occupied) and that contain 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. We particularly seek 
comments regarding:
    (i) Whether occupied areas are inadequate for the conservation of 
the species; and
    (ii) Specific information that supports the determination that 
unoccupied areas will, with reasonable certainty, contribute to the 
conservation of the species and contain at least one physical or 
biological feature essential to the conservation of the species.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible effects on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
effects of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that may 
be affected.
    (5) Information on the extent to which the description of probable 
economic effects in the draft economic analysis (DEA) is a reasonable 
estimate of the likely economic effects.
    (6) Information on land ownership within proposed critical habitat 
areas, particularly tribal land ownership (allotments, trust, and/or 
fee) so that the Service may best implement Secretarial Order 3206 
(American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act).
    (7) 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. Specific information we seek includes 
information on any conservation plans within the proposed critical 
habitat areas that provide conservation for the Big Sandy or Guyandotte 
River crayfishes and their habitats.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
DEA, and how the consequences of such reactions, if likely to occur, 
would relate to the conservation and regulatory benefits of the 
proposed critical habitat designation.
    (9) 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 also that comments 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 
we must make determinations ``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 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, Northeast Regional Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing 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 a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, 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

    Federal actions prior to April 7, 2015, are described in the 
proposed rule to list the Big Sandy crayfish and the Guyandotte River 
crayfish under the Act (80 FR 18710; April 7, 2015).
    On April 7, 2016 (81 FR 20450), we listed the Big Sandy crayfish as 
a threatened species and the Guyandotte River crayfish as an endangered 
species. In the April 7, 2015, proposed listing rule (80 FR 18710), we 
stated that designating critical habitat at that time

[[Page 5074]]

was prudent but not determinable. On March 28, 2018, the Service 
received a notice of intent (NOI) to sue letter from the Center for 
Biological Diversity (CBD) alleging that the Service failed to 
designate critical habitat for the Big Sandy crayfish and the 
Guyandotte River crayfish within the timeframe set forth in the Act. On 
May 23, 2018, the Service responded to CBD's NOI, explaining that the 
proposed critical habitat designations for these two species were not 
currently among the highest priority actions outlined in our 7-year 
National Listing Workplan and more specific fiscal year 2018 Workplan. 
On June 20, 2018, CBD filed suit alleging that the Service failed to 
designate critical habitat within the Act's required timeline (CBD v. 
Zinke, No. 2:18-cv-11111 (S.D.W.Va.)). On September 21, 2018, we filed 
an unopposed motion to stay litigation (No. 2:18-cv-01058 (S.D.W.Va.)) 
until December 31, 2019. On October 18, 2018, the court granted our 
motion to stay (No. 2:18-cv-01058 (S.D.W.Va.)).

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 or require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Where a landowner requests Federal agency funding or 
authorization for an action that may affect a listed species or 
critical habitat, the consultation requirements of section 7(a)(2) of 
the Act would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
specific features that support the life-history needs of the species, 
including, but not limited to, water characteristics, soil type, 
geological features, prey, vegetation, symbiotic species, or other 
features. A feature may be a single habitat characteristic, or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    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 species status assessment (SSA) report, if 
available, 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 surveys

[[Page 5075]]

and studies; biological assessments; other published 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 the recovery of the species. Areas that are important for the 
conservation of the listed 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 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 indicates a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that the Secretary shall designate critical habitat at 
the time a 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 Secretary may, but is 
not required to, determine that a designation would not be prudent in 
the following circumstances:
    (i) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem from causes that 
cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) After analyzing the best scientific data available, the 
Secretary otherwise determines that designation of critical habitat 
would not be prudent.
    We did not identify any of the factors above to apply to the Big 
Sandy crayfish or the Guyandotte River crayfish. Therefore, we find 
that designation of critical habitat is prudent for both the Big Sandy 
crayfish and the Guyandotte River crayfish.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) 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.''
    As we discussed in the proposed rule (80 FR 18710; April 7, 2015) 
and in accordance with 16 U.S.C. 1533(b)(6)(C)(ii)), we concluded that 
critical habitat was not determinable at that time because we were 
seeking additional information on the Big Sandy and Guyandotte River 
crayfishes, but that we would make a critical habitat determination no 
later than 1 year following publication of the final listing rule. We 
have since received and reviewed additional data on the biological 
needs of these species and the habitat characteristics where they are 
located. This and other information represent the best scientific data 
available and lead us to conclude that the designation of critical 
habitat is determinable for the Big Sandy and the Guyandotte River 
crayfishes.

Physical or Biological Features Essential to the Conservation of the 
Species

    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 essential 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 derived the specific physical 
or biological features required for the Big Sandy crayfish and the 
Guyandotte River crayfish from studies and observations of these 
species' habitat, ecology, and life history, which are discussed in 
full in the species' proposed and final listing rules (80 FR 18710, 
April 7, 2015; 81 FR 20450, April 7, 2016, respectively). The primary 
habitat elements that influence resiliency of these species include, 
but are not limited to, the degree of sedimentation, water quality 
thresholds, and extent of habitat connectedness.

Summary of Essential Physical or Biological Features

    We derived the specific physical or biological features required 
for the Big Sandy crayfish and the Guyandotte River crayfish from 
studies and observations of these species' habitat, ecology, and life 
history, which are discussed in full in the species' proposed and final 
listing rules (80 FR 18710, April 7, 2015; 81 FR 20450, April 7, 2016, 
respectively), and summarized here. While data are sparse with which to 
quantitatively define the optimal or range of suitable conditions for a 
specific biological or physical feature needed by these species (e.g., 
degree of sedimentation, water quality thresholds,

[[Page 5076]]

extent of habitat connectedness), the available species-specific 
information, in combination with information from other similar 
crayfish species, provides sufficient information to qualitatively 
discuss the physical and biological features needed to support these 
species. As discussed in the proposed (80 FR 18710, April 7, 2015) and 
final (81 FR 20450, April 7, 2016) listing rules, these species are 
classified as ``tertiary'' (stream) burrowing crayfish, meaning that 
they do not exhibit complex burrowing behavior; instead, of digging 
holes they shelter in shallow excavations under loose cobbles and 
boulders on the stream bottom (Loughman 2013, p. 1). These species are 
opportunistic omnivores, with seasonal-mediated tendencies for animal 
or plant material (Thoma 2009, p. 13; Loughman 2014, p. 21). The 
general life cycle pattern of these species is 2 to 3 years of growth, 
maturation in the third year, and first mating in midsummer of the 
third or fourth year (Thoma 2009, entire; Thoma 2010, entire). 
Following midsummer mating, the annual cycle involves egg laying in 
late summer or fall, spring release of young, and late spring/early 
summer molting (Thoma 2009, entire; Thoma 2010, entire). The Big Sandy 
and Guyandotte River crayfishes' likely lifespan is 5 to 7 years, with 
the possibility of some individuals reaching 10 years of age (Thoma 
2009, entire; Thoma 2010, entire; Loughman 2014, p. 20).
    Suitable habitat for both the Big Sandy crayfish and the Guyandotte 
River crayfish appears to be limited to higher elevation, clean, 
medium-sized streams and rivers in the upper reaches of the Big Sandy 
and Guyandotte river basins, respectively (Jezerinac et al. 1995, p. 
171; Channell 2004, pp. 21-23; Taylor and Shuster 2004, p. 124; Thoma 
2009, p. 7; Thoma 2010, pp. 3-4, 6; Loughman 2013, p. 1; Loughman 2014, 
pp. 22-23). Both species are associated with the faster moving water of 
riffles and runs or pools with current (Jezerinac et al. 1995, p. 170). 
An important habitat feature for both species is an abundance of large, 
unembedded slab boulders on a sand, cobble, or bedrock stream bottom 
(Loughman 2013, p. 2; Loughman 2014, pp. 9-11). Excessive sedimentation 
leading to substrate embeddedness creates unsuitable conditions for 
these species (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 22-23; 
Thoma 2009, p. 7; Thoma 2010, pp. 3-4; Loughman 2013, p. 6). As such, 
we have determined that the following physical and biological features 
(PBFs) are essential for the conservation of the Big Sandy and 
Guyandotte River crayfishes:
    (1) Fast-flowing stream reaches with unembedded slab boulders, 
cobbles, or isolated boulder clusters within an unobstructed stream 
continuum (i.e., riffle, run, pool complexes) of permanent, moderate- 
to large-sized (generally third order and larger) streams and rivers 
(up to the ordinary high water mark as defined at 33 CFR 329.11).
    (2) Streams and rivers with natural variations in flow and seasonal 
flooding sufficient to effectively transport sediment and prevent 
substrate embeddedness.
    (3) Water quality characterized by seasonally moderated 
temperatures and physical and chemical parameters (e.g., pH, 
conductivity, dissolved oxygen) sufficient for the normal behavior, 
growth, reproduction, and viability of all life stages of the species.
    (4) An adequate food base, indicated by a healthy aquatic community 
structure including native benthic macroinvertebrates, fishes, and 
plant matter (e.g., leaf litter, algae, detritus).
    (5) Aquatic habitats protected from riparian and instream 
activities that degrade the physical and biological features described 
in (1) through (4), above, or cause physical (e.g., crushing) injury or 
death to individual Big Sandy or Guyandotte River crayfish.
    (6) An interconnected network of streams and rivers that have the 
physical and biological features described in (1) through (4), above, 
that allow for the movement of individual crayfish in response to 
environmental, physiological, or behavioral drivers. The scale of the 
interconnected stream network should be sufficient to allow for gene 
flow within and among watersheds.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Big Sandy 
and Guyandotte River crayfishes may require special management 
considerations or protections to reduce the following threats: (1) 
Resource extraction (coal mining, timber harvesting, and oil and gas 
development); (2) road construction and maintenance (including unpaved 
roads and trails); (3) instream dredging or construction projects; (4) 
off-road vehicle (ORV) use; and (5) other sources of non-point source 
pollution. These activities are discussed in more detail under Summary 
of Factors Affecting the Species in the final listing rule (81 FR 
20450; April 7, 2016). These threats are in addition to potential 
adverse effects of drought, floods, or other natural phenomena.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of best management practices (BMPs) 
designed to reduce erosion, sedimentation, and stream bank destruction; 
development of alternatives that avoid and minimize stream bed 
disturbances; regulation of ORV use in or near streams; and reduction 
of other watershed and floodplain disturbances that contribute excess 
sediments or pollutants 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. We are proposing to designate 
critical habitat in areas within the geographical area occupied by the 
Big Sandy crayfish and Guyandotte River crayfish at the time of listing 
in 2016. For the Guyandotte River crayfish, we also are proposing to 
designate three specific streams outside the geographical area occupied 
by the species at the time of listing because we have determined that a 
designation limited to occupied areas would be inadequate to ensure the 
conservation of the species. These currently unoccupied streams are 
within the larger occupied watershed of the Guyandotte River crayfish's 
range and adjacent to currently occupied streams. Proposed critical 
habitat includes the water and stream channel up to the ordinary high 
water mark as defined at 33 CFR 329.11.
    The current distribution of both the Big Sandy and the Guyandotte 
River crayfishes is fragmented and much reduced from their historical 
distributions. As specified in the Service's recovery outline for these 
species (Service 2018, entire), we anticipate that recovery will 
require protection of existing populations and habitat for both 
species, and in the case of the Guyandotte River crayfish,

[[Page 5077]]

reestablishing populations in some historically occupied streams where 
the species is presumed extirpated. These additional populations will 
increase the species' resiliency, representation, and redundancy, 
thereby increasing the likelihood that it will sustain populations over 
time.
    Sources of data for this proposed critical habitat designation 
include crayfish survey and habitat assessment reports (Jezerinac et 
al. 1995, entire; Channell 2004, entire; Taylor and Shuster 2004, 
entire; Thoma 2009a, entire; Thoma 2009b, entire; Thoma 2010, entire; 
Loughman 2013, entire; Loughman 2014, entire; Loughman 2015a, entire; 
Loughman 2015b, entire) and project-specific reports submitted to the 
Service (Appalachian Technical Services, Inc. (ATS) 2009, entire; ATS 
2010, entire; Vanasse Hangen Brustlin, Inc. (VHB) 2011, entire; ATS 
2012a, entire; ATS 2012b, entire; Virginia Department of Transportation 
(VDOT) 2014a, entire; VDOT 2014b, entire; VDOT 2015, entire; ATS 2017, 
entire; Red Wing 2017, entire; Third Rock 2017, entire; Red Wing 2018, 
entire).

Areas Occupied at the Time of Listing

    As described in the final listing rule for the Big Sandy and 
Guyandotte River crayfishes (81 FR 20450; April 7, 2016), the best 
available data (stream surveys conducted between 2006 and 2016) 
indicate that at the time of listing, the Big Sandy crayfish occupied 
26 streams and rivers (generally third order and larger) in the Russell 
Fork, Upper Levisa Fork, Lower Levisa Fork, and Tug Fork watersheds in 
the upper Big Sandy River basin of Kentucky, Virginia, and West 
Virginia. The Guyandotte River crayfish occupied two similarly-sized 
streams in the Upper Guyandotte River basin of West Virginia.
    We propose to designate a total of 4 occupied units, including a 
total of 19 occupied subunits, as critical habitat for the Big Sandy 
crayfish in the aforementioned watersheds. In addition, we propose to 
designate one unit, including two occupied subunits, as critical 
habitat for the Guyandotte River crayfish in the Upper Guyandotte River 
watershed in West Virginia. For the Guyandotte River crayfish, we have 
determined that a designation limited to the two occupied subunits 
would be inadequate to ensure the conservation of the species. The 
Guyandotte River crayfish is historically known from six connected 
stream systems within the Upper Guyandotte River basin (its 
geographical range); however, at the time of listing, the species was 
limited to two isolated subunits in Pinnacle Creek and Clear Fork. In 
our review, we determined that these two subunits do not provide 
sufficient redundancy or resiliency necessary for the conservation of 
the species. The Pinnacle Creek population is known from a 5.2-skm 
(3.3-smi) stream reach, and survey data collected between 2009 and 2015 
indicate that this area has low crayfish numbers. This small, isolated 
population is at risk of extirpation from demographic and environmental 
stochasticity, and a catastrophic event. The Clear Fork population 
occurs along a 33-skm (22-smi) stream reach, and surveys from 2015 
indicate several sites with ``robust'' crayfish numbers. The primary 
risk to this population is extirpation from a catastrophic event; 
however, because it is an isolated population, demographic or 
stochastic declines present some risk.

Areas Outside of the Geographic Range at the Time of Listing

    Because we have determined occupied areas alone are not adequate 
for the conservation of the Guyandotte River crayfish, we have 
evaluated whether any unoccupied areas are essential for the 
conservation of the species. We are proposing as critical habitat three 
currently unoccupied subunits within the Upper Guyandotte basin unit. 
We have determined that each is essential for the conservation of the 
species. Two of the currently unoccupied subunits, Guyandotte River and 
Indian Creek, provide for an increase in the species' redundancy and, 
by providing connectivity between the subunits, increase the resiliency 
of the extant populations in Pinnacle Creek and Clear Fork. One of the 
proposed unoccupied subunits, Huff Creek, is isolated from the other 
units by the R.D. Bailey dam, but provides for increased overall 
redundancy of the species and adds representation in this area of its 
historical range. As discussed in the recovery outline for the species 
(Service 2018, entire), successful conservation of the Guyandotte River 
crayfish will require the establishment of additional populations 
within the species' historical range; the three proposed unoccupied 
subunits advance this goal. All three subunits have at least one of the 
physical or biological features essential to the conservation of the 
species. To reduce threats to the species and its habitat, the Service 
is working cooperatively with the West Virginia Department of 
Environmental Protection and the coal industry to develop protection 
and enhancement plans for coal mining permits that may affect crayfish 
streams and the Hatfield McCoy Trail system and the Federal Highway 
Administration to avoid and minimize effects from ORV use in and around 
Pinnacle Creek and other trail systems adjacent to crayfish streams. In 
addition, the Service, West Virginia Department of Natural Resources, 
Virginia Department of Game and Inland Fisheries, and West Liberty 
University are working together to conduct additional research on both 
the Guyandotte River and Big Sandy crayfishes, including research on 
habitat use and activity patterns and captive holding and propagation. 
We are reasonably certain that each unoccupied subunit will contribute 
to the conservation of the species by furthering the preliminary 
recovery goals identified in the recovery outline of increasing the 
Guyandotte River crayfish's resiliency, redundancy and representation. 
Bolstering the species' viability will reduce the species' risk of 
extinction.

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 and subunits, 
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-R5-ES-2019-0098, and at the North Atlantic-
Appalachian Regional Office (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 pavement, buildings, and other structures because such lands lack 
physical or biological features necessary for the Big Sandy and 
Guyandotte River crayfishes. 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

[[Page 5078]]

biological features in the adjacent critical habitat.
    Under Sec. Sec.  424.12(b)(1) and (2) of the implementing 
regulations, the Service determines the appropriate scale for 
designating critical habitat. This is further clarified in the final 
rule titled, ``Implementing Changes to the Regulations for Designating 
Critical Habitat'' (81 FR 7414; February 11, 2016; see Discussion of 
Changes to Part 424 in that rule): The Service ``cannot and need not 
make determinations at an infinitely fine scale.'' Thus, the Service 
need not determine that each square inch, square yard, acre, or even 
square mile independently meets the definition of ``critical habitat.'' 
In making its determination on the appropriate scale for designating 
critical habitat, the Service may consider, among other things, the 
life history of the species, the scales at which data are available, 
and biological or geophysical boundaries (such as watersheds). For the 
Big Sandy and the Guyandotte River crayfishes, we propose that streams 
or stream segments (as opposed to individual occurrence locations) are 
the appropriate units for designating critical habitat. We base this on 
the following factors:
    (1) The regional geology and stream morphology in the upper Big 
Sandy and Upper Guyandotte River basins lead to a general abundance of 
slab boulders and/or cobble in most streams, although in some areas 
this habitat is sparse or occurs as isolated boulder clusters. 
Furthermore, while continuous crayfish survey data do not exist (i.e., 
not every reach of every stream has been surveyed), more intensive 
crayfish surveys in portions of the Russell Fork watershed and in Clear 
Fork and Pinnacle Creek in the Upper Guyandotte basin indicate that the 
Big Sandy and Guyandotte River crayfishes may occur throughout stream 
reaches where the required physical and biological features (e.g., 
riffles and runs with unembedded slab boulders or unembedded boulder 
clusters, adequate water quality, and connectivity) are present.
    (2) Streams are dynamic, linear systems, and local water quality 
parameters (e.g., dissolved oxygen, temperature, pH) can vary 
temporally and are largely reliant on upstream conditions (barring 
known point or non-point source discharges or other factors that affect 
water quality more locally). Likewise, the various stream microhabitats 
(e.g., riffles, runs, pools) with attendant fauna do not generally 
occur in isolation, but form a continuous gradient along the stream 
continuum. Because the known occupied Big Sandy and Guyandotte River 
crayfish sites possess the required physical and biological features, 
at least to some minimal degree, for these species to survive, and 
because these physical and biological features are likely 
representative of stream conditions beyond any single survey location, 
we conclude that Big Sandy and Guyandotte River crayfish likely occupy, 
or otherwise rely upon, stream areas beyond any single occurrence 
location.
    (3) Studies of other crayfish species suggest that adult and larger 
juvenile Big Sandy and Guyandotte River crayfish likely move both 
upstream and downstream in response to changes in environmental 
conditions or local crayfish demographics, or for other behavioral or 
physiological reasons (Momot 1966, pp. 158-159; Kerby et al. 2005, p. 
407). The evidence also indicates that some individuals, especially 
newly independent juveniles, may be passively dispersed to downstream 
locations by swiftly flowing water (Loughman 2019).
    Therefore, within the greater geographical ranges of the Big Sandy 
crayfish and Guyandotte River crayfish (i.e., the upper Big Sandy River 
basin and the Upper Guyandotte River basin, respectively), the general 
morphology and connectedness of the streams and the life history of 
these species lead us to reasonably conclude that both species likely 
occupy, transit through, or otherwise rely upon stream reaches beyond 
any known occurrence location. We acknowledge that some areas along a 
stream segment proposed as critical habitat may not contain all of the 
physical and biological features required by either species, either 
naturally or as a result of habitat modification, but based on the 
considerations discussed above, we conclude that streams or stream 
segments are appropriate units of scale for describing critical habitat 
for these species.
    In summary, we propose to designate as critical habitat streams and 
stream segments up to the ordinary high water mark that were occupied 
at the time of listing and contain one or more of the physical and 
biological features to support the life-history processes essential to 
the conservation of the Big Sandy crayfish and the Guyandotte River 
crayfish. Additionally, for the Guyandotte River crayfish, we propose 
to designate three subunits outside the geographical range of that 
species occupied at the time of listing; however, these subunits are 
within the larger occupied watershed. Two of these subunits have 
historical records of the species, and one subunit, while not having a 
record of the species, is within its historical range and provides 
connectivity between occupied and unoccupied subunits. These unoccupied 
subunits provide for increased redundancy, resiliency, and 
representation of the Guyandotte River crayfish. We propose specific 
critical habitat unit/subunit boundaries based on the following general 
criteria:
    (1) We delineated areas within the historical range of each species 
that had positive survey data between 2006 and 2016 (the time of 
listing). For the Guyandotte River crayfish, we also delineated three 
stream segments as unoccupied critical habitat.
    (2) Upstream termini of proposed critical habitat units/subunits 
are located at the confluence of the primary stream and a smaller named 
tributary stream (usually a second-order stream). These termini are 
generally within about 5 skm (3.1 smi) upstream of a known crayfish 
occurrence record. The downstream termini are usually located at the 
confluence of the primary stream and the next larger receiving stream 
or river. In some instances, dams or reservoirs are used to demark 
critical habitat units/subunits.
    (3) We included intervening stream segments between occurrence 
locations unless there are data suggesting the physical and biological 
features required by the species are absent in the intervening segment.
    (4) We describe the proposed critical habitat units/subunits by 
their upstream and downstream coordinates (i.e., latitude and 
longitude) and geographic landmarks (e.g., confluence of named streams 
and/or a town or population center).
    Within these stream segments, proposed critical habitat includes 
the stream channel within the ordinary high water mark. As defined at 
33 CFR 329.11, the ``ordinary high water mark'' on nontidal rivers is 
the line on the shore established by the fluctuations of water and 
indicated by physical characteristics such as a clear, natural line 
impressed on the bank; shelving; changes in the character of soil; 
destruction of terrestrial vegetation; the presence of litter and 
debris; or other appropriate means that consider the characteristics of 
the surrounding areas.
    For the purposes of analyzing the potential economic effects of 
proposed critical habitat designation for the Big Sandy and Guyandotte 
River crayfishes, the critical habitat units/subunits are determined to 
be in either private, Federal, or State ownership. In Kentucky, 
Virginia, and West Virginia, jurisdiction over the water itself is 
maintained by the State or

[[Page 5079]]

Commonwealth; however, ownership of the stream bottom may vary 
depending on specific State law or legal interpretation (Energy & 
Mineral Law Institute 2011, pp. 409-427; Virginia Code at section 62.1-
44.3; West Virginia Department of Environmental Protection 2013, 
section C). For the purposes of our economic analysis, we describe 
ownership of proposed critical habitat units/subunits based on the 
identification of the adjacent riparian landowner(s) (i.e., private, 
Federal, or State entity).

Proposed Critical Habitat Designation

    For the Big Sandy crayfish, we propose to designate approximately 
582 skm (362 smi) in 4 units (including 19 subunits) in Kentucky, 
Virginia, and West Virginia as critical habitat (see table 1, below). 
These streams or stream segments are considered occupied at the time of 
listing and represent the entire known range of the species and all 
extant populations. Based on our review, we conclude that the units 
occupied by the Big Sandy crayfish at the time of listing (described 
below) are representative of the species' historical range and include 
core population areas in the Russell Fork watershed in Virginia and the 
upper Tug Fork watershed (e.g., Dry Fork) in West Virginia, as well as 
other peripheral populations in Kentucky, Virginia, and West Virginia. 
We determined that there is sufficient area for the conservation of the 
Big Sandy crayfish within these occupied units, and we therefore do not 
propose to designate any unoccupied critical habitat for the species. 
The proposed units constitute our best assessment of areas that meet 
the definition of critical habitat for the Big Sandy crayfish.

                                    Table 1--Proposed Critical Habitat Units and Subunits for the Big Sandy Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          Stream length
          Unit/watershed                Subunit           River/stream           State            County(ies)      Occupied at listing -----------------
                                                                                                                                          skm      smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Levisa Fork........  .................  Dismal Creek.......  VA                 Buchanan...........  Yes................     29.2     18.1
Unit 2: Russell Fork.............  a                  Russell Fork.......  KY/VA              Buchanan,            Yes................     83.8     52.1
                                                                                               Dickenson, Pike.
                                   b                  Hurricane Creek....  VA                 Buchanan...........  Yes................      5.9      3.7
                                   c                  Indian Creek.......  VA                 Buchanan, Dickenson  Yes................      7.4      4.6
                                   d                  Fryingpan Creek....  VA                 Dickenson..........  Yes................      4.6      2.9
                                   e                  Lick Creek.........  VA                 Dickenson..........  Yes................     16.2     10.1
                                   f                  Russell Prater       VA                 Buchanan, Dickenson  Yes................      8.4      5.2
                                                       Creek.
                                   g                  McClure River......  VA                 Dickenson..........  Yes................     35.6     22.1
                                                      Open Fork..........  VA                 Dickenson..........  Yes................      4.9      3.0
                                   h                  Elkhorn Creek......  KY                 Pike...............  Yes................      8.5      5.3
                                   i                  Cranes Nest River..  VA                 Dickenson, Wise....  Yes................     24.6     15.3
                                                      Birchfield Creek...  VA                 Wise...............  Yes................      6.9      4.3
                                   j                  Pound River........  VA                 Dickenson, Wise....  Yes................     28.5     17.7
Unit 3: Lower Levisa Fork........  a                  Levisa Fork          KY                 Pike...............  Yes................     15.9      9.9
                                                       (upstream).
                                                      Levisa Fork          KY                 Floyd, Johnson.....  Yes................     17.5     10.9
                                                       (downstream).
                                   b                  Shelby Creek.......  KY                 Pike...............  Yes................     32.2     20.0
                                                      Long Fork..........  KY                 Pike...............  Yes................     12.9      8.0
Unit 4: Tug Fork.................  a                  Tug Fork (upstream)  KY/VA/WV           Buchanan, McDowell,  Yes................    106.1     65.9
                                                                                               Mingo, Wayne, Pike.
                                                      Tug Fork             KY/WV              Martin, Wayne......  Yes................     11.7      7.3
                                                       (downstream).
                                   b                  Dry Fork...........  WV                 McDowell...........  Yes................     45.2     28.1
                                                      Bradshaw Creek.....  WV                 McDowell...........  Yes................      4.6      2.9
                                   c                  Panther Creek......  WV                 McDowell...........  Yes................     10.7      6.6
                                   d                  Knox Creek.........  KY/VA              Buchanan, Pike.....  Yes................     16.6     10.3
                                   e                  Peter Creek........  KY                 Pike...............  Yes................     10.1      6.3
                                   f                  Blackberry Creek...  KY                 Pike...............  Yes................      9.1      5.7
                                   g                  Pigeon Creek.......  WV                 Mingo..............  Yes................     14.0      8.7
                                                      Laurel Fork........  WV                 Mingo..............  Yes................     11.1      6.9
                                                                                                                                       -----------------
    Total:.......................  .................  ...................  .................  ...................  ...................      582      362
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 2 identifies the ownership of lands adjacent to the entirely 
aquatic Big Sandy crayfish proposed critical habitat.

                             Table 2--Land Ownership Adjacent to Proposed Critical Habitat Units for the Big Sandy Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Federal                    State/local             Private                      Total
         Critical habitat unit         -----------------------------------------------------------------------------------------------------------------
                                                  skm              smi        skm        smi        skm        smi        skm               smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Levisa Fork.............  0                               0          0          0         29         18         29  18
Unit 2: Russell Fork..................  23                             14         11          7        201        125        235  146
Unit 3: Lower Levisa Fork.............  0                               0          0          0         79         49         79  49
Unit 4: Tug Fork......................  0                               0         11          7        228        142        239  149
                                       -----------------------------------------------------------------------------------------------------------------
    Grand Total BSC...................  23                             14         22         14        537        334        582  362
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For the Guyandotte River crayfish, we propose to designate 
approximately 135 skm (84 smi) in one unit, consisting of five 
subunits, in West Virginia as critical habitat. Approximately 67 skm 
(41 smi) in two subunits are considered occupied by the species at the 
time of listing and represent all known extant populations (see table 
3, below). However, we determined that these two subunits do not 
provide sufficient resiliency, representation, or

[[Page 5080]]

redundancy to ensure the conservation of the species. Therefore, we 
propose to designate approximately 68 skm (42 smi) in three subunits as 
unoccupied critical habitat (see table 3, below). The proposed subunits 
constitute our best assessment of areas that meet the definition of 
critical habitat for the Guyandotte River crayfish.

                                        Table 3--Proposed Critical Habitat Unit for the Guyandotte River Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Stream length
          Unit/watershed            Subunit       River/stream        State        County(ies)       Occupied at listing -------------------------------
                                                                                                                                skm             smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Guyandotte.........          a  Pinnacle Creek......         WV  Wyoming............  Yes.................            28.6            17.8
                                           b  Clear Fork..........         WV  Wyoming............  Yes.................            24.9            15.5
                                              Laurel Fork.........         WV  Wyoming............  Yes.................            13.1             8.1
                                           c  Guyandotte River....         WV  Wyoming............  No..................            35.8            22.2
                                           d  Indian Creek........         WV  Wyoming............  No..................             4.2             2.6
                                           e  Huff Creek..........         WV  Wyoming, Logan.....  No..................            28.0            17.4
                                                                                                                         -------------------------------
    Total:.......................  .........  ....................  .........  ...................  ....................             135              84
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 4 identifies the ownership of lands adjacent to the entirely 
aquatic Guyandotte River crayfish proposed critical habitat.

                          Table 4--Land Ownership Adjacent to Proposed Critical Habitat Units for the Guyandotte River Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Federal             State/local             Private                Total
                      Critical habitat unit                      ---------------------------------------------------------------------------------------
                                                                     skm        smi        skm        smi        skm        smi        skm        smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1:
    Occupied....................................................          0          0          6          4         60         38         67         41
    Unoccupied..................................................          0          0         16         10         52         32         68         42
                                                                 ---------------------------------------------------------------------------------------
        Grand Total GRC.........................................          0          0         23         14        112         70        135         84
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Below, we present brief descriptions of all units/subunits and 
reasons why they meet the definition of critical habitat for the Big 
Sandy and Guyandotte River crayfishes.

Big Sandy Crayfish

Unit 1: Dismal Creek, Buchanan County, Virginia
    This unit includes approximately 29.2 stream kilometers (skm) (18.1 
stream miles (smi)) of Dismal Creek in the Upper Levisa Fork watershed. 
The threats within this unit that may need special management 
consideration include resource extraction (coal mining, timber 
harvesting, and oil and gas development); road construction and 
maintenance (including unpaved roads and trails); instream dredging or 
construction projects; and other sources of non-point source pollution. 
The upper limit of this unit is the confluence of Dismal Creek and 
Laurel Fork, and the downstream limit is the confluence of Dismal Creek 
and Levisa Fork. Recent surveys of Dismal Creek indicated an abundance 
of unembedded slab boulders and boulder clusters, and live Big Sandy 
crayfish have been collected in relatively high numbers from several 
locations within this unit (Thoma 2009b, p. 10; Loughman 2015a, p. 26). 
The Dismal Creek watershed is mostly forested; however, U.S. Geological 
Survey (USGS) topographic maps and aerial imagery (ESRI) provide 
evidence of legacy and ongoing surface coal mining throughout the 
watershed. The narrow stream valley contains scattered residences and 
small communities, commercial facilities, occasional gas wells, and 
transportation infrastructure (i.e., roads and rail lines). There is a 
large coal coke plant straddling Dismal Creek at the confluence of 
Dismal Creek and Levisa Fork. This unit is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements. The Dismal Creek population 
of Big Sandy crayfish represents the species' only representation in 
the upper Levisa Fork watershed, which is physically isolated from the 
rest of the Big Sandy basin by the Fishtrap Dam and Reservoir. The 
Dismal Creek population appears to be relatively robust and contributes 
to the representation and redundancy of the species.
Unit 2: Russell Fork
    Unit 2 consists of the 10 subunits described below. The threats 
within this entire unit that may need special management consideration 
include resource extraction (coal mining, timber harvesting, and oil 
and gas development); road construction and maintenance (including 
unpaved roads and trails); instream dredging or construction projects; 
and other sources of non-point source pollution.
Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, Virginia, 
and Pike County, Kentucky
    Subunit 2a includes approximately 83.8 skm (52.1 smi) of the 
Russell Fork mainstem from the confluence of Russell Fork and Ball 
Creek at Council, Virginia, downstream to the confluence of Russell 
Fork and Levisa Fork at Levisa Junction, Kentucky. Recent surveys of 
the Russell Fork indicated an abundance of unembedded slab boulders, 
boulder clusters, isolated boulders, and large cobbles, and live Big 
Sandy crayfish have been captured at numerous locations within this 
subunit (Thoma 2009b, p. 10; Loughman 2015a, p. 23). The Russell Fork 
watershed is mostly forested; however, USGS topographic maps and aerial 
imagery (ESRI) provide evidence of legacy and ongoing coal mining 
throughout the watershed. In the upper portion of the watershed, the 
narrow stream valley contains scattered residences and roads, but human 
development increases farther downstream in the form of small 
communities and towns, commercial facilities, and transportation 
infrastructure (i.e., roads and rail lines). Approximately 12 skm (7.4 
smi) of Subunit 2a is within the Jefferson National Forest and Breaks 
Interstate Park. The remainder of the subunit is located almost 
entirely on private land, except for any small amount that is publicly 
owned in the form of bridge

[[Page 5081]]

crossings or road easements. The Big Sandy crayfish population in 
Subunit 2a appears to be relatively robust and provides important 
connectivity between crayfish populations in several tributary streams 
and rivers, contributing to their resiliency. Additionally, some Big 
Sandy crayfish from Subunit 2a likely disperse to areas downstream in 
the Levisa Fork basin, contributing to the species' representation and 
redundancy.
Subunit 2b: Hurricane Creek, Buchanan County, Virginia
    Subunit 2b includes approximately 5.9 skm (3.7 smi) of Hurricane 
Creek, a tributary to Russell Fork. This subunit extends from the 
confluence of Hurricane Creek and Gilbert Branch downstream to the 
confluence of Hurricane Creek and Russell Fork at Davenport, Virginia. 
Recent surveys of Hurricane Creek indicate an abundance of unembedded 
slab boulders, boulders, and cobbles, and live Big Sandy crayfish have 
been collected from two locations in lower Hurricane Creek (ATS 2009, 
entire; VDOT 2014, entire). The USGS topographic maps and aerial 
imagery (ESRI) indicate the Hurricane Creek watershed is relatively 
intact forest, with the exception of ongoing oil or gas development on 
the ridges to the north and south of the creek and scattered 
residences, small agricultural fields, and roads in the narrow valley. 
This subunit is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. This subunit contributes to the redundancy of the 
species.
Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, Virginia
    This subunit includes approximately 7.4 skm (4.6 smi) of Indian 
Creek, a tributary to Russell Fork. Subunit 2c extends from the 
confluence of Indian Creek and Three Forks upstream of Duty, Virginia, 
to the confluence of Indian Creek and Russell Fork below Davenport, 
Virginia. Recent surveys of Indian Creek indicate an abundance of slab 
boulders and boulders with low to moderate embeddedness, and live Big 
Sandy crayfish have been collected from several locations (ATS 2009, 
entire; ATS 2010, entire; Loughman 2015a, pp. 24-25). The USGS 
topographic maps and aerial imagery (ESRI) indicate the lower portion 
of the Indian Creek watershed is mostly forested, with the exception of 
oil or gas development on a ridgeline to the west of the creek. The 
upper portion of the watershed is dominated by a large surface coal 
mine. The narrow creek valley contains scattered residences, small 
agricultural fields, and roads. This subunit is located almost entirely 
on private land, except for any small amount that is publicly owned in 
the form of bridge crossings or road easements. This subunit 
contributes to the redundancy of the species.
Subunit 2d: Fryingpan Creek, Dickenson County, Virginia
    Subunit 2d includes approximately 4.6 skm (2.9 smi) of Fryingpan 
Creek, a tributary to Russell Fork. This subunit extends from the 
confluence of Fryingpan Creek and Priest Fork downstream to the 
confluence of Fryingpan Creek and Russell Fork. Recent surveys of 
Fryingpan Creek indicate an abundance of isolated slab boulders and 
boulder clusters with low embeddedness, and live Big Sandy crayfish 
have been collected from the lower reach of Fryingpan Creek (Loughman 
2015a, pp. 24-25). The USGS topographic maps and aerial imagery (ESRI) 
indicate the watershed is mostly intact forest, with the exception of 
oil or gas development on some adjacent ridgelines and legacy coal 
mining in the upper portion of the watershed. The narrow creek valley 
contains scattered residences, small agricultural fields, and roads. 
This subunit is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. This subunit contributes to the redundancy of the 
species.
Subunit 2e: Lick Creek, Dickenson County, Virginia
    Subunit 2e includes approximately 16.2 skm (10.1 smi) of Lick 
Creek, a tributary of Russell Fork. This subunit extends from the 
confluence of Lick Creek and Cabin Fork near Aily, Virginia, downstream 
to the confluence of Lick Creek and Russell Fork at Birchfield, 
Virginia. Recent surveys of Lick Creek indicate an abundance of 
unembedded slab boulders and cobbles, with live Big Sandy crayfish 
collected at several locations (ATS 2012a, entire; ATS 2012b, entire). 
The USGS topographic maps and aerial imagery (ESRI) indicate the 
watershed is mostly forested, with the exception of oil or gas 
development on some adjacent ridgelines and legacy coal mining and 
timber harvesting sites at various locations within the watershed. The 
narrow creek valley contains scattered residences, small agricultural 
fields, and roads. This subunit is located almost entirely on private 
land, except for any small amount that is publicly owned in the form of 
bridge crossings or road easements. This subunit contributes to the 
redundancy of the species.
Subunit 2f: Russell Prater Creek, Buchanan and Dickenson Counties, 
Virginia
    This subunit includes approximately 8.4 skm (5.2 smi) of Russell 
Prater Creek, a tributary to Russell Fork. This subunit extends from 
the confluence of Russell Prater Creek and Greenbrier Creek downstream 
to the confluence of Russell Prater Creek and Russell Fork at Haysi, 
Virginia. Recent surveys of Russell Prater Creek indicate abundant 
unembedded slab boulders, boulders, and cobbles, with live Big Sandy 
crayfish collected from two sites in the lower portion of the creek 
(Thoma 2009b, p. 10; Loughman 2015a, pp. 22-23). The USGS topographic 
maps and aerial imagery (ESRI) indicate the Russell Prater watershed is 
mostly forested; however, legacy coal mines and valley fills occur 
throughout the watershed. The narrow creek valley contains scattered 
residences, commercial facilities, small agricultural fields, and 
roads. This subunit is located almost entirely on private land, except 
for any small amount that is publicly owned in the form of bridge 
crossings or road easements. This subunit contributes to the redundancy 
of the species.
Subunit 2g: McClure River and Creek and Open Fork, Dickenson County, 
Virginia
    Subunit 2g includes approximately 35.6 skm (22.1 smi) of the 
McClure River and Creek, a major tributary to Russell Fork, and its 
tributary stream Open Fork (4.9 skm (3.0 smi)). The McClure River and 
Creek section extends from the confluence of McClure Creek and Wakenva 
Branch downstream to the confluence of McClure River and Russell Fork. 
Recent surveys of the McClure River indicated an often sandy bottom 
with unembedded, isolated slab boulders and boulder clusters, with live 
Big Sandy crayfish collected at several locations (Thoma 2009b, p. 18; 
Loughman 2015a, p. 22). The McClure River valley contains scattered 
residences, small communities, commercial mining-related facilities, 
small agricultural fields, roads, railroads, and other infrastructure. 
The riparian zone along much of the river appears to be relatively 
intact.
    The Open Fork section of Subunit 2g extends from the confluence of 
Middle Fork Open Fork and Coon Branch downstream to the confluence of 
Open Fork and McClure Creek at Nora, Virginia. Recent surveys of Open 
Fork indicated unembedded, isolated slab

[[Page 5082]]

boulders and boulder clusters, with live Big Sandy crayfish collected 
at one location (Loughman 2015a, p. 22). The narrow valley contains 
scattered residences, some small agricultural fields, roads, and 
railroads.
    The USGS topographic maps and aerial imagery (ESRI) indicate the 
McClure River watershed is mostly forested; however, legacy and active 
coal mining occurs in the middle and upper portions of the watershed. 
Natural gas development is also apparent on many of the adjacent 
ridges, and recent or ongoing logging operations continue at several 
locations in the watershed. This subunit is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements. This subunit contributes to 
the redundancy of the species.
Subunit 2h: Elkhorn Creek, Pike County, Kentucky
    Subunit 2h includes approximately 8.5 skm (5.3 smi) of Elkhorn 
Creek, a tributary to Russell Fork. This subunit extends from the 
confluence of Elkhorn Creek and Mountain Branch downstream to the 
confluence of Elkhorn Creek and Russell Fork at Elkhorn City, Kentucky. 
Recent surveys indicated unembedded slab boulders and boulders in 
Elkhorn Creek with ``extensive bedrock glides'' in the lower reaches of 
the creek. Live Big Sandy crayfish were collected from under slab 
boulders in lower Elkhorn Creek (Loughman 2015a, pp. 18-19). The USGS 
topographic maps and aerial imagery (ESRI) indicate the watershed is 
mostly forested; however, significant legacy and active coal mining and 
other mining and quarrying occurs in the watershed. Human development, 
in the form of small communities, residences, small agricultural 
fields, and commercial and industrial facilities, as well as roads, 
railroads, and other infrastructure, occurs almost continually in the 
riparian zone along Elkhorn Creek. The watershed to the south of 
Elkhorn Creek is a unit of the Jefferson National Forest; however, 
Subunit 2h is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. This subunit contributes to the redundancy of the 
species.
Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson and Wise 
Counties, Virginia
    This subunit includes approximately 24.6 skm (15.3 smi) of Cranes 
Nest River, a major tributary to Russell Fork, and approximately 6.9 
skm (4.3 smi) of Birchfield Creek, a tributary to Cranes Nest River. 
The Cranes Nest River section of Subunit 2i extends from the confluence 
of Cranes Nest River and Birchfield Creek downstream to the confluence 
of Cranes Nest River and Lick Branch. Recent surveys of the Cranes Nest 
River indicated abundant unembedded slab boulders, boulder clusters, 
isolated boulders, and coarse woody debris, and live Big Sandy crayfish 
have been collected at multiple sites (Thoma 2009b, p. 10; VDOT 2014b, 
entire; VDOT 2015, entire; Loughman 2015a, pp. 21-22). The riparian 
zone of this section is largely intact; however, human development, in 
the form of residences, small communities, small agricultural fields, 
roads, railroads, and other infrastructure, occurs along some segments 
of Cranes Nest River.
    The Birchfield Creek section of this subunit extends from the 
confluence of Birchfield Creek and Dotson Creek downstream to the 
confluence of Birchfield Creek and Cranes Nest River. Recent surveys 
resulted in observations of live Big Sandy crayfish from a site in the 
lower portion of Birchfield Creek. Human development, in the form of 
residences, roads, and other infrastructure, occurs in the riparian 
zone along Birchfield Creek.
    The USGS topographic maps and aerial imagery (ESRI) indicate the 
Cranes Nest River watershed is mostly forested; however, significant 
legacy and active coal mining is evident throughout the watershed. 
Natural gas development is ongoing on some of the ridges adjacent to 
the Cranes Nest River. Approximately 10.3 skm (6.4 smi) of Subunit 2i 
is within the John W. Flannagan Recreation Area. The remainder of the 
subunit is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. Since 1964, this subunit has been physically isolated 
from the Russell Fork by the John W. Flannagan Dam and Reservoir. The 
Big Sandy crayfish population in Subunit 2i appears to be relatively 
robust and contributes to the redundancy of the species.
Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia
    Subunit 2j includes approximately 28.5 skm (17.7 smi) of the Pound 
River, a major tributary to Russell Fork that has been physically 
isolated from that river since 1964 by the John W. Flannagan Dam and 
Reservoir. This subunit extends from the confluence of Pound River and 
Bad Creek downstream to the confluence of Pound River and Jerry Branch. 
Recent surveys indicate abundant unembedded slab boulders, boulders, 
and boulder clusters in the riffle and run sections, and live Big Sandy 
crayfish have been collected from multiple locations (Thoma 2009b, 
entire; VHB, Inc. 2011, entire; Loughman 2015a, p. 21). The USGS 
topographic maps and aerial imagery (ESRI) indicate the Pound River 
watershed is mostly forested; however, significant legacy and recent 
coal mining is evident, especially to the south of the river. Aerial 
imagery also indicates recent or ongoing logging operations at several 
locations in the watershed. Much of the immediate riparian zone is 
intact forest, with occasional human development in the form of small 
communities, residences, small agricultural fields, commercial 
development, and roads and other infrastructure adjacent to the river. 
Approximately 11.4 skm (7.1 smi) of Subunit 2j is within the John W. 
Flannagan Recreation Area. The remainder of the subunit is located 
almost entirely on private land, except for any small amount that is 
publicly owned in the form of bridge crossings or road easements. The 
Big Sandy crayfish population in Subunit 2j appears to be relatively 
robust and contributes to the redundancy of the species.
Unit 3: Lower Levisa Fork
    Unit 3 consists of the two subunits described below. The threats 
within this entire unit that may need special management consideration 
include resource extraction (coal mining, timber harvesting, and oil 
and gas development); road construction and maintenance (including 
unpaved roads and trails); instream dredging or construction projects; 
and other sources of non-point source pollution.
Subunit 3a: Levisa Fork, Pike, Floyd, and Johnson Counties, Kentucky
    Subunit 3a includes approximately 33.4 skm (20.8 smi) of the 
mainstem Levisa Fork in two disjunct segments. The upstream segment 
includes approximately 15.9 skm (9.9 smi) of the Levisa Fork from its 
confluence with the Russell Fork at Levisa Junction, Kentucky, 
downstream to the confluence of Levisa Fork and Island Creek at 
Pikeville, Kentucky. Surveys indicate that suitable unembedded boulder 
habitat is present in the Levisa Fork, and live Big Sandy crayfish have 
been recently collected both upstream of Subunit 3a in the Russell Fork 
and at one location near Pikeville, Kentucky (Thoma 2010, pp. 5-6; 
Loughman 2015a, pp. 5-10).

[[Page 5083]]

    The downstream segment of Subunit 3a includes approximately 17.5 
skm (10.9 smi) of the Levisa Fork near Auxier, Kentucky, from the 
confluence of Levisa Fork and Abbott Creek downstream to the confluence 
of Levisa Fork and Miller Creek. Recent surveys indicate isolated 
boulder clusters in this segment, with live Big Sandy crayfish 
collected from two locations (Thoma 2009b, entire; Loughman 2014, pp. 
12-13).
    The USGS topographic maps and aerial imagery (ESRI) indicate the 
Subunit 3a watershed is mostly forested; however, legacy and ongoing 
coal mining is evident in several locations. Human development, in the 
form of towns, small communities, residences, small agricultural 
fields, commercial and industrial development, roads, railroads, and 
other infrastructure, occurs nearly continuously in the riparian zone 
of these segments of the Levisa Fork. Subunit 3a is located almost 
entirely on private land, except for any small amount that is publicly 
owned in the form of bridge crossings or road easements. The upper 
segment of the subunit provides connectivity between the Russell Fork 
and Shelby Creek populations (discussed below), and the lower segment 
supports the most downstream population of Big Sandy crayfish in the 
Levisa Fork basin. Because the natural habitat characteristics (e.g., 
size, gradient, bottom substrate) in the Levisa Fork differ from those 
in the upper tributaries, this subunit increases Big Sandy crayfish 
representation as well as the species' redundancy.
Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky
    This subunit includes approximately 32.2 skm (20.0 smi) of Shelby 
Creek, a tributary to Levisa Fork, and approximately 12.9 skm (8.0 smi) 
of Long Fork, a tributary to Shelby Creek. The Shelby Creek portion of 
this subunit extends from the confluence of Shelby Creek and Burk 
Branch downstream to the confluence of Shelby Creek and Levisa Fork at 
Shelbiana, Kentucky. The Long Fork portion of Subunit 3b extends from 
the confluence of Right Fork Long Fork and Left Fork Long Fork 
downstream to the confluence of Long Fork and Shelby Creek at Virgie, 
Kentucky. Recent surveys of this subunit indicated an abundance of 
unembedded slab boulders, boulder clusters, and anthropogenic 
structures such as concrete slabs and blocks in Shelby Creek and Long 
Fork, and live Big Sandy crayfish have been collected at multiple 
locations within this subunit (Thoma 2010, pp. 5-6; Loughman 2015a, p. 
18). The USGS topographic maps and aerial imagery (ESRI) indicate the 
Shelby Creek watershed is mostly forested; however, several large 
surface coal mines are evident west of the creek. The Long Fork 
watershed is also mostly forested; however, legacy and active coal 
mining is evident in the upper portion of this watershed. Human 
development, in the form of towns, small communities, residences, small 
agricultural fields, commercial and industrial development, roads, 
railroads, and other infrastructure, occurs nearly continuously in the 
riparian zone of Shelby Creek. In the riparian zone of Long Fork, 
residences, small agricultural fields, roads, and other infrastructure 
occur nearly continuously. Subunit 3b is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements. This subunit maintains the 
most robust population of Big Sandy crayfish in the lower Levisa Fork 
(as indicated by recent survey capture rates) and increases the 
representation and redundancy of the species.
Unit 4: Tug Fork
    Unit 4 consists of the seven subunits described below. The threats 
within this entire unit that may need special management consideration 
include resource extraction (coal mining, timber harvesting, and oil 
and gas development); road construction and maintenance (including 
unpaved roads and trails); instream dredging or construction projects; 
and other sources of non-point source pollution.
Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West 
Virginia; Buchanan County, Virginia; and Pike County, Kentucky
    Subunit 4a includes approximately 117.8 skm (73.2 smi) of the Tug 
Fork mainstem in two disjunct segments. The upstream segment includes 
approximately 106.1 skm (65.9 smi) of the Tug Fork from the confluence 
of Tug Fork and Elkhorn Creek at Welch, West Virginia, downstream to 
the confluence of Tug Fork and Blackberry Creek in Pike County, 
Kentucky. Surveys indicate that suitable unembedded boulder habitat is 
sparse and discontinuous in this segment of the Tug Fork; however, live 
Big Sandy crayfish have been collected at four locations within this 
subunit (Loughman 2015a, p. 16). The downstream segment includes 
approximately 11.7 skm (7.3 smi) of the Tug Fork near Crum, West 
Virginia, from the confluence of Tug Fork and Bull Creek downstream to 
the confluence of Tug Fork and Little Elk Creek.
    The USGS topographic maps and aerial imagery (ESRI) indicate the 
Subunit 4a watershed is mostly forested; however, there is evidence of 
legacy and ongoing coal mining throughout the subunit. The riparian 
zone in the upper segment of Subunit 4a is relatively intact, with 
human development consisting primarily of road and railroad corridors. 
In the lower segment of the subunit, towns, small communities, 
residences, small agricultural fields, commercial and industrial 
development, roads, railroads, and other infrastructure become 
prevalent. Subunit 4a is located almost entirely on private land, 
except for any small amount that is publicly owned in the form of 
bridge crossings or road easements. Because of the diversity of natural 
habitat characteristics (e.g., size, gradient, bottom substrate) in 
this subunit, it contributes to Big Sandy crayfish representation and 
redundancy. This subunit provides habitat for the Big Sandy crayfish, 
as well as providing potential connectivity between the Dry Fork, 
Panther Creek, Knox Creek, Peter Creek, Blackberry Creek, and Pigeon 
Creek populations (discussed below).
Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West Virginia
    This subunit includes approximately 45.2 skm (28.1 smi) of Dry 
Fork, a large tributary to the Tug Fork, and approximately 4.6 skm (2.9 
smi) of Bradshaw Creek, a tributary to Dry Fork. The Dry Fork portion 
of Subunit 4b extends from the confluence of Dry Fork and Jacobs Fork 
downstream to the confluence of Dry Fork and Tug Fork at Iaeger, West 
Virginia. The Bradshaw Creek portion extends from the confluence of 
Bradshaw Creek and Hite Fork at Jolo, West Virginia, downstream to the 
confluence of Bradshaw Creek and Dry Fork at Bradshaw, West Virginia. 
Recent surveys indicate abundant unembedded slab boulders, boulders, 
boulder clusters, and large cobbles, with live Big Sandy crayfish 
collected at numerous locations within this subunit (Loughman 2013, pp. 
7-8; Loughman 2014, pp. 10-11; Loughman 2015a, pp. 14-15). The USGS 
topographic maps and aerial imagery (ESRI) indicate the Subunit 4b 
watershed is mostly forested; however, legacy coal mining is evident 
throughout, and natural gas development is apparent in the upper 
portions of the watershed. The riparian zone in the upper portion of 
Dry Fork is relatively intact, with human development consisting 
primarily of

[[Page 5084]]

road and railroad corridors. In the middle and lower portions of Dry 
Fork, small communities, residences, small agricultural fields, 
commercial and industrial development, roads, railroads, and other 
infrastructure become prevalent. The Bradshaw Creek riparian zone is 
dominated by residences, small agricultural fields, roads, and other 
infrastructure. The middle portion of Dry Fork passes through the 
Berwind Lake State Wildlife Management Area; otherwise, Subunit 4b is 
located almost entirely on private land, except for any small amount 
that is publicly owned in the form of bridge crossings or road 
easements. This subunit appears to maintain a relatively robust 
population of the Big Sandy crayfish and likely serves as a source 
population for areas downstream in the Tug Fork basin. This subunit 
contributes to the redundancy of the species.
Subunit 4c: Panther Creek, McDowell County, West Virginia
    This subunit includes approximately 10.7 skm (6.6 smi) of Panther 
Creek, a tributary to Tug Fork. Subunit 4c extends from the confluence 
of Panther Creek and George Branch downstream to the confluence of 
Panther Creek and Tug Fork at Panther, West Virginia. Big Sandy 
crayfish have been collected at one site in the lower portion of this 
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate 
the majority of the Panther Creek watershed is intact forest with 
evidence of only limited legacy coal mining. The riparian zone of this 
narrow valley is largely intact, containing a road and occasional 
residences (mostly in the lower portion of the subunit). Approximately 
6.1 skm (3.8 smi) of Subunit 4c is located within the Panther State 
Forest, and the remainder is located on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. This subunit contributes to the redundancy of the 
species.
Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike County, 
Kentucky
    Subunit 4d includes approximately 16.6 skm (10.3 smi) of Knox 
Creek, a tributary to Tug Fork. This subunit extends from the 
confluence of Knox Creek and Cedar Branch downstream to the confluence 
of Knox Creek and Tug Fork in Pike County, Kentucky. Recent surveys 
indicated abundant unembedded slab boulders, boulders, and boulder 
clusters, with live Big Sandy crayfish collected at four sites in the 
Kentucky portion of the creek (Thoma 2010, p. 5; Loughman 2015a, p. 
12). The USGS topographic maps and aerial imagery (ESRI) indicate the 
Knox Creek watershed is mostly forested, with evidence of significant 
legacy, recent, and ongoing coal mining in the watershed. In the upper 
portion of this subunit, human development in the form of small 
communities, residences, roads, railroads, and other infrastructure is 
common. In the middle and lower sections, the riparian zone is 
relatively intact, except for scattered residences and a road and 
railroad line. Subunit 4d is located almost entirely on private land, 
except for any small amount that is publicly owned in the form of 
bridge crossings or road easements. This subunit contributes to the 
redundancy of the species.
Subunit 4e: Peter Creek, Pike County, Kentucky
    Subunit 4e includes approximately 10.1 skm (6.3 smi) of Peter 
Creek, a tributary to Tug Fork. This subunit extends from the 
confluence of Left Fork Peter Creek and Right Fork Peter Creek at 
Phelps, Kentucky, downstream to the confluence of Peter Creek and Tug 
Fork at Freeburn, Kentucky. Recent surveys indicate moderate 
sedimentation issues in Peter Creek, but some unembedded bottom 
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy 
crayfish have been collected at two sites in the lower portion of this 
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate 
the Peter Creek watershed is mostly forested, with evidence of 
significant legacy, recent, and ongoing coal mining throughout the 
watershed. The riparian zone in Subunit 4e is dominated by human 
development in the form of small communities, residences, roads, 
railroads, and other infrastructure. This subunit is located almost 
entirely on private land, except for any small amount that is publicly 
owned in the form of bridge crossings or road easements. Subunit 4e 
contributes to the redundancy of the species.
Subunit 4f: Blackberry Creek, Pike County, Kentucky
    Subunit 4f includes approximately 9.1 skm (5.7 smi) of Blackberry 
Creek, a tributary to Tug Fork. This subunit extends from the 
confluence of Blackberry Creek and Bluespring Branch downstream to the 
confluence of Blackberry Creek and Tug Fork. Recent surveys indicate 
moderate sedimentation in Blackberry Creek, but some unembedded bottom 
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy 
crayfish have been collected at two sites in the lower portion of this 
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate 
the Blackberry Creek watershed is mostly forested, with evidence of 
significant legacy, recent, and ongoing coal mining throughout the 
watershed. The narrow riparian zone in Subunit 4f is dominated by human 
development in the form of small communities, residences, roads, and 
other infrastructure. This subunit is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements. Subunit 4f contributes to 
the redundancy of the species.
Subunit 4g: Pigeon Creek and Laurel Creek, Mingo County, West Virginia
    Subunit 4g includes approximately 14.0 skm (8.7 smi) of Pigeon 
Creek, a tributary to Tug Fork, and approximately 11.1 skm (6.9 smi) of 
Laurel Fork, a tributary to Pigeon Creek. The Pigeon Creek portion of 
this subunit extends from the confluence of Pigeon Creek and Trace Fork 
downstream to the confluence of Pigeon Creek and Tug Fork. The Laurel 
Creek portion extends from the confluence of Laurel Fork and Lick 
Branch 0.6 skm (0.4 smi) downstream of the Laurel Lake dam to the 
confluence of Laurel Fork and Pigeon Creek at Lenore, West Virginia.
    Recent surveys indicate the bottom substrates in Pigeon Creek 
consist of fine sediments, sand, and occasional boulders, with Big 
Sandy crayfish collected at a single site (Loughman 2015a, p. 11). 
Laurel Fork maintains a bottom substrate of sand, gravel, cobble, and 
occasional slab boulders, with Big Sandy crayfish collected at two 
sites (Loughman 2015a, pp. 10-11). The USGS topographic maps and aerial 
imagery (ESRI) indicate the Pigeon Creek watershed is mostly forested, 
with evidence of significant legacy, recent, and ongoing coal mining 
and valley fills in the upper portion of the watershed. The Pigeon 
Creek riparian zone is dominated by human development in the form of 
small communities, residences, roads, railroads, and other 
infrastructure. The majority of the Laurel Creek watershed is within 
the Laurel Creek State Wildlife Management Area and is mostly intact 
forest; however, the narrow riparian zone is dominated by human 
development in the form of residences, roads, and other infrastructure. 
Subunit 4g is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements. With the exception of the Big Sandy crayfish occurrence 
in the Tug Fork mainstem near Crum, West Virginia, Subunit 4g supports 
the most

[[Page 5085]]

downstream Big Sandy crayfish population in the Tug Fork watershed. 
Therefore, this subunit contributes to the representation and 
redundancy of the species.

Guyandotte River Crayfish

Unit 1: Upper Guyandotte
    We propose to designate a single critical habitat unit (Unit 1), 
consisting of five subunits, for the Guyandotte River crayfish. The 
threats within this entire unit that may need special management 
consideration include resource extraction (coal mining, timber 
harvesting, and oil and gas development); road construction and 
maintenance (including unpaved roads and trails); instream dredging or 
construction projects; and other sources of non-point source pollution. 
In addition, subunits 1a and 1e may need special management 
consideration from the threat of ORV use. The subunits are described 
below.
Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia
    This subunit includes approximately 28.6 skm (17.8 smi) of Pinnacle 
Creek, a tributary to the Guyandotte River. Subunit 1a extends from the 
confluence of Pinnacle Creek and Beartown Fork downstream to the 
confluence of Pinnacle Creek and the Guyandotte River at Pineville, 
West Virginia. The USGS topographic maps and aerial imagery (ESRI) 
indicate the Pinnacle Creek watershed is mostly forested; however, 
legacy, recent, and ongoing coal mining is evident in the watershed. 
The riparian zone in this subunit is mostly intact, with human 
development consisting of unimproved roads or trails. In the lower 
portion of the subunit, some commercial and coal-related facilities are 
adjacent to the creek. This subunit is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements.
    Recent surveys of Pinnacle Creek confirmed the presence of the 
Guyandotte River crayfish at five sites in the upper portion of the 
creek, with the bottom substrate being characterized as gravel, with 
unembedded cobbles, small boulders, and isolated slab boulders. 
Substrate embeddedness was reported to increase markedly in downstream 
reaches (Loughman 2015b, p. 11). As one of only two known Guyandotte 
River crayfish populations, this subunit provides critical 
representation and redundancy for the species.
Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West Virginia
    Subunit 1b includes approximately 38.0 skm (23.6 smi) of Clear Fork 
and its primary tributary Laurel Fork. This subunit extends from the 
confluence of Laurel Creek and Acord Branch downstream to the 
confluence of Clear Fork and the Guyandotte River. The USGS topographic 
maps and aerial imagery (ESRI) indicate the Subunit 1b watershed is 
mostly forested; however, coal mining activity occurs throughout the 
subunit. Human development is prevalent in the riparian zone in this 
subunit and consists of communities, residences, commercial facilities, 
agricultural fields, roads, railroads, and other infrastructure. 
Approximately 6.2 skm (3.9 smi) of Subunit 1b is within the R.D. Bailey 
Lake State Wildlife Management Area, and the remainder is located 
almost entirely on private land, except for any small amount that is 
publicly owned in the form of bridge crossings or road easements.
    Surveys confirmed the Guyandotte River crayfish at six sites within 
this subunit, with the stream bottom substrate generally characterized 
as sand with abundant unembedded slab boulders, boulders, or boulder 
clusters (Loughman 2015b, pp. 9-10). Of the two remaining Guyandotte 
River crayfish populations, Subunit 1b contains the most robust 
population and provides critical representation and redundancy for the 
species.
Subunit 1c: Guyandotte River, Wyoming County, West Virginia
    Because we have determined occupied areas are not adequate for the 
conservation of the Guyandotte River crayfish, we have evaluated 
whether any unoccupied areas are essential for the conservation of the 
species and identified this area as essential for the conservation of 
the species. Subunit 1c includes approximately 35.8 skm (22.2 smi) of 
the Guyandotte River from its confluence with Pinnacle Creek at 
Pineville, West Virginia, downstream to its confluence with Clear Fork. 
The USGS topographic maps and aerial imagery (ESRI) indicate the 
Subunit 1c watershed is mostly forested; however, some legacy and 
ongoing coal mining is evident along with natural gas development on 
adjacent ridges. In the lower portion of the subunit, the riparian zone 
is largely intact, with the exception of road and railroad rights-of-
way. In the middle and upper portions of this subunit, human 
development in the riparian zone increases and consists of communities, 
residences, commercial facilities, agricultural fields, roads, 
railroads, and other infrastructure. Approximately 15.0 skm (9.3 smi) 
of Subunit 1c is located within the R.D. Bailey Lake State Wildlife 
Management Area, and the remainder is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings or road easements.
    Although it is considered unoccupied, this subunit contains at 
least two of the physical or biological features (PBFs) essential to 
the conservation of the Guyandotte River crayfish, and we are 
reasonably certain that it will contribute to the conservation of the 
species. This subunit maintains ``optimal'' Guyandotte River crayfish 
habitat, including abundant unembedded slab boulders, boulders, boulder 
clusters, and cobble (PBF 1) (Loughman 2015b, pp. 22-24). Along with 
providing potential habitat for the Guyandotte River crayfish and 
thereby increasing its redundancy, this subunit provides connectivity 
(PBF 6) between the extant Pinnacle Creek and Clear Fork populations 
and provides connectivity between these two populations and the 
proposed unoccupied critical habitat subunit at Indian Creek (Subunit 
1d, described below).
Subunit 1d: Indian Creek, Wyoming County, West Virginia
    Because we have determined occupied areas are not adequate for the 
conservation of the Guyandotte River crayfish, we have evaluated 
whether any unoccupied areas are essential for the conservation of the 
species and identified this area as essential for the conservation of 
the species. Subunit 1d includes approximately 4.2 skm (2.6 smi) of 
Indian Creek, a tributary to the Guyandotte River. This subunit extends 
from the confluence of Indian Creek and Brier Creek at Fanrock, West 
Virginia, downstream to the confluence of Indian Creek and the 
Guyandotte River. The USGS topographic maps and aerial imagery (ESRI) 
indicate the Subunit 1d watershed is mostly intact forest, with 
evidence of legacy coal mining and natural gas drilling on the adjacent 
slopes. Residences, roads, and other infrastructure occur in the narrow 
riparian zone. Approximately 1.3 skm (0.8 smi) of Subunit 1d is located 
within the R.D. Bailey Lake State Wildlife Management Area, and the 
remainder is located almost entirely on private land, except for any 
small amount that is publicly owned in the form of bridge crossings or 
road easements.
    Although it is considered unoccupied, this subunit contains at 
least two of the physical or biological features essential to the 
conservation of the Guyandotte

[[Page 5086]]

River crayfish, and we are reasonably certain that it will contribute 
to the conservation of the species. This subunit represents the type 
location for the Guyandotte River crayfish, with specimens last 
collected in 1947. The best available survey data (Loughman 2015b, p. 
14) indicate this subunit maintains unembedded slab boulders and 
boulders in the faster moving stream sections, with some sedimentation 
observed in slow or slack water sections (PBF 1). This subunit is 
located approximately midway between the extant Pinnacle Creek and 
Clear Fork populations and, if recolonized, would increase the 
redundancy of the Guyandotte River crayfish and contribute to 
population connectedness within the species' range (PBF 6).
Subunit 1e: Huff Creek, Wyoming and Logan Counties, West Virginia
    Because we have determined occupied areas are not adequate for the 
conservation of the Guyandotte River crayfish, we have evaluated 
whether any unoccupied areas are essential for the conservation of the 
species and identified this area as essential for the conservation of 
the species. Subunit 1e includes approximately 28.0 skm (17.4 smi) of 
Huff Creek, a tributary of the Guyandotte River. This subunit extends 
from the confluence of Huff Creek and Straight Fork downstream to the 
confluence of Huff Creek and the Guyandotte River at Huff, West 
Virginia. The USGS topographic maps and aerial imagery (ESRI) indicate 
the Subunit 1e watershed is mostly intact forest, with evidence of 
legacy and ongoing coal mining and legacy natural gas drilling on the 
adjacent slopes. Human development, in the form of residences, roads, 
and other infrastructure, occurs in the narrow riparian zone throughout 
this subunit. Subunit 1e is located almost entirely on private land, 
except for any small amount that is publicly owned in the form of 
bridge crossings or road easements.
    Although it is considered unoccupied, this subunit contains at 
least one of the physical or biological features essential to the 
conservation of the Guyandotte River crayfish, and we are reasonably 
certain that it will contribute to the conservation of the species. The 
best available survey data (Loughman 2015b, pp. 14-15) indicate this 
subunit maintains unembedded slab boulders and boulder clusters with 
only minimal sedimentation (PBF 1). Guyandotte River crayfish were last 
collected from this subunit in 1989. While the R.D. Bailey Dam, 
constructed in 1980, prevents connectivity between this subunit and the 
extant Guyandotte River crayfish populations upstream, successful 
reintroduction of the species to this subunit would contribute to the 
species' redundancy.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 44976). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions. These requirements apply 
when the Federal agency has retained discretionary involvement or 
control over the action (or the agency's discretionary involvement or 
control is authorized by law), and, subsequent to the previous 
consultation, we have listed a new species or designated critical 
habitat that may be affected by the Federal action, or the action has 
been modified in a manner that affects the species or critical habitat 
in a way not considered in the previous consultation. In such 
situations, Federal agencies sometimes may need to request reinitiation 
of consultation with us, but the regulations also specify some 
exceptions to the requirement to reinitiate consultation on specific 
land management plans after subsequently listing a new species or 
designating new critical habitat. See the regulations for a description 
of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether implementation of the proposed Federal

[[Page 5087]]

action directly or indirectly alters the designated critical habitat in 
a way that appreciably diminishes the value of critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical and 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 the Service may, during a consultation under 
section 7(a)(2) of the Act, find are likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive erosion and sedimentation from coal mining or 
abandoned mine lands, oil or natural gas development, timber harvests, 
unpaved forest roads, road construction, channel alteration, off-road 
vehicle use, and other land-disturbing activities in the watershed and 
floodplain. Sedimentation from these activities could lead to stream 
bottom embeddedness that eliminates or reduces the sheltering habitat 
necessary for the conservation of these crayfish species.
    (2) Actions that would significantly alter channel morphology or 
geometry. Such activities could include, but are not limited to, 
channelization, dredging, impoundment, road and bridge construction, 
pipeline construction, and destruction of riparian vegetation. These 
activities may cause changes in water flows or channel stability and 
lead to increased sedimentation and stream bottom embeddedness that 
eliminates or reduces the sheltering habitat necessary for the 
conservation of these crayfish species.
    (3) Actions that would significantly alter water chemistry or 
temperature. Such activities could include, but are not limited to, the 
release of chemicals, fill, 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 Big 
Sandy or Guyandotte River crayfish and result in direct or cumulative 
adverse effects to individual crayfish.

Exemptions

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

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

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate 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.
    The first sentence in section 4(b)(2) of the Act requires that we 
take into consideration the economic, national security, or other 
relevant impacts of designating any particular area as critical 
habitat. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.

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 the impacts that a specific critical habitat 
designation may have on restricting or modifying 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 for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
which includes the existing regulatory and socioeconomic burden imposed 
on landowners, managers, or other resource users potentially affected 
by the designation of critical habitat (e.g., under the Federal listing 
as well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the species 
and its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct a discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Big Sandy and Guyandotte River crayfishes 
(Industrial Economics, Incorporated (IEc) 2019, entire). We began by 
conducting a screening analysis of the proposed designation of critical 
habitat in order to focus on the key factors that are likely to result 
in incremental economic impacts. The purpose of the screening analysis 
is to filter out the geographic areas in which the critical habitat 
designation is unlikely to result

[[Page 5088]]

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 on evaluating the specific areas or sectors that may 
incur probable incremental economic impacts as a result of the 
designation. The screening analysis also assesses whether units/
subunits are unoccupied by the species and may require additional 
management or conservation efforts as a result of the critical habitat 
designation for the species which may incur incremental economic 
impacts. This screening analysis combined with the information 
contained in our IEM are what we consider our draft economic analysis 
of the proposed critical habitat designation for the Big Sandy and 
Guyandotte River crayfishes 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 critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the Big Sandy and Guyandotte River 
crayfishes, first we identified, in the IEM dated August 14, 2019 
(Service 2019, entire), probable incremental economic impacts 
associated with the following categories of activities: (1) Watershed 
and stream restoration activities; (2) construction of recreation 
improvements and management of recreation activities; (3) energy 
extraction (coal, oil, and gas) and maintenance/management of 
facilities (e.g., abandoned mine lands, active mines, pipelines); (4) 
road and bridge maintenance; (5) pesticide use; (6) timber harvest; (7) 
agriculture; and (8) instream emergency response activities. We 
considered each industry or category individually. Additionally, we 
considered whether their 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. In areas where the Big Sandy and 
Guyandotte River crayfishes are present, Federal agencies already are 
required to consult with the Service under section 7 of the Act on 
activities they fund, permit, or implement that may affect the species. 
If we finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will 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 Big 
Sandy or Guyandotte River crayfishes' critical habitat. Because all of 
the units/subunits we are proposing to designate as critical habitat 
for the Big Sandy crayfish are occupied, we do not expect that the 
critical habitat designation will result in any additional 
consultations. The conservation recommendations provided to address 
impacts to the occupied critical habitat will be the same as those 
recommended to address impacts to the species because the habitat 
tolerances of the Big Sandy crayfish are inextricably linked to the 
health, growth, and reproduction of the crayfish, which are present 
year-round in their occupied streams. Furthermore, because the proposed 
critical habitat and the Big Sandy crayfish's known range are 
identical, the results of consultation under adverse modification are 
not likely to differ from the results of consultation under jeopardy. 
In the event of an adverse modification determination, we expect that 
reasonable and prudent alternatives to avoid jeopardy to the species 
would also avoid adverse modification of the critical habitat. The only 
incremental impact of critical habitat designation that we anticipate 
is the small administrative effort required during section 7 
consultation to document effects on the physical and biological 
features of the critical habitat and whether the action appreciably 
diminishes the value of critical habitat as a whole for the 
conservation of the listed species.
    The above conclusion is also accurate for the occupied Guyandotte 
River crayfish subunits (1a and 1b). For the unoccupied Guyandotte 
River crayfish subunits (1c, 1d, and 1e), we anticipate project 
modifications may result in the future from consultations on one 
planned surface mining project as well as one existing surface mining 
project. Examples of project modifications may include, but are not 
limited to, sediment monitoring, chemical testing, macroinvertebrate 
monitoring, installing box culverts at all stream crossings, 
collocating valley fills or constructing regarded backstacks, and 
maintaining a spill response plan (IEc 2019, p. 15). Informed by 
discussions with a mining company operating in Guyandotte River 
crayfish occupied habitat, the cost estimates associated with such 
project modifications are projected to be relatively minor, ranging 
from $30,000 to $60,000 in the year of implementation.
    The proposed critical habitat designation for the Big Sandy 
crayfish totals approximately 582 skm (362 smi), all of which is 
currently occupied by the species. The proposed critical habitat 
designation for the Guyandotte River crayfish totals approximately 135 
skm (84 smi), of which approximately 49 percent is currently occupied 
by the species.
    As stated in the DEA (IEc 2019, p. 1), critical habitat designation 
for the Big Sandy and Guyandotte River crayfish would be unlikely to 
generate costs exceeding $100 million in a single year, and therefore 
would not be significant. The direct section 7 costs would most likely 
be limited to additional administrative effort to consider adverse 
modification, as well as the project modifications discussed above, in 
unoccupied habitat for the Guyandotte River crayfish. All of the 
proposed critical habitat units/subunits for the Big Sandy crayfish and 
two subunits of critical habitat for the Guyandotte River crayfish are 
occupied year-round by these species. Within occupied habitat, 
regardless of whether critical habitat is designated, all projects with 
a Federal nexus are already subject to section 7 requirements. The 
administrative time required to address critical habitat in these 
consultations is minor. The results of consultation for adverse 
modification are not likely to differ from the results of consultation 
for jeopardy. Three subunits of critical habitat for the

[[Page 5089]]

Guyandotte River crayfish are currently unoccupied by the species. 
Section 7 consultations for all projects with a Federal nexus in this 
unoccupied habitat would be fully attributable to the critical habitat 
designation. We anticipate incremental project modifications resulting 
from these consultations, including for existing and planned surface 
mines.
    Based on the rate of historical consultations in occupied units/
subunits, these two species are likely to generate a total of 
approximately 285 consultations and technical assistances in a given 
year. The total additional administrative cost of addressing adverse 
modification in these new and existing consultations is not expected to 
exceed $860,000 to $920,000, depending on the range of cost estimates 
for unoccupied critical habitat (see below), in a given year. This 
value likely overestimates the cost because technical assistance 
consultations, which cost substantially less, cannot be separated from 
informal consultations in the consultation information provided to the 
economists. The cost of project modifications resulting from currently 
identified existing and future activities in unoccupied habitat for the 
Guyandotte River crayfish range from $30,000 to $60,000 in a given 
year.
    Further, the designation of critical habitat is not expected to 
trigger additional requirements under State or local regulations. 
Additionally, because the proposed critical habitat is located in 
stretches of river, rather than on land, impacts on property values 
resulting from the perception of additional regulation are unlikely. 
Project modifications in unoccupied habitat for the Guyandotte River 
crayfish have the potential to increase conservation in these areas, 
resulting in an incremental benefit. Data limitations preclude IEc's 
ability to monetize these benefits; however, these benefits are 
unlikely to exceed $100 million in a given year.
    The proposed units with the highest potential costs resulting from 
the designation of critical habitat are Unit 2 for the Big Sandy 
crayfish and the unoccupied subunits of Unit 1 for the Guyandotte River 
crayfish. Proposed Unit 2 for the Big Sandy crayfish (Russell Fork, 
spanning both Kentucky and Virginia) contains the most stream miles 
with adjacent Federal land ownership and, therefore, a higher 
probability of intersecting with projects or activities with a Federal 
nexus that require consultation. Because proposed Unit 1 for the 
Guyandotte River crayfish (in West Virginia) includes unoccupied stream 
miles, requests for project modifications would be likely for existing 
and planned surface mines.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of this proposed rule and our 
required determinations. We may revise the proposed rule or supporting 
documents to incorporate or address information we receive during the 
public comment period. In particular, we may exclude an area from 
critical habitat if we determine that the benefits of excluding the 
area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.
    During the development of a final designation, we will consider any 
additional economic impact information we receive during the public 
comment period (see DATES, above), and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i) of the Act, national-
security or homeland-security concerns are not a factor in the process 
of determining what areas meet the definition of ``critical habitat.'' 
Nevertheless, when designating critical habitat under section 4(b)(2) 
of the Act, the Service must consider impacts on national security, 
including homeland security, on lands or areas not covered by section 
4(a)(3)(B)(i) of the Act. Accordingly, we will always consider for 
exclusion from the designation areas for which DoD, Department of 
Homeland Security (DHS), or another Federal agency has requested 
exclusion based on an assertion of national-security or homeland-
security concerns.
    We cannot, however, automatically exclude requested areas. When 
DoD, DHS, or another Federal agency requests exclusion from critical 
habitat on the basis of national-security or homeland-security impacts, 
it must provide a reasonably specific justification of an incremental 
impact on national security that would result from the designation of 
that specific area as critical habitat. That justification could 
include demonstration of probable impacts, such as impacts to ongoing 
border-security patrols and surveillance activities, or a delay in 
training or facility construction, as a result of compliance with 
section 7(a)(2) of the Act. If the agency requesting the exclusion does 
not provide us with a reasonably specific justification, we will 
contact the agency to recommend that it provide a specific 
justification or clarification of its concerns relative to the probable 
incremental impact that could result from the designation. If the 
agency provides a reasonably specific justification, we will defer to 
the expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Big Sandy 
and the Guyandotte River crayfishes are not owned or managed by DoD or 
DHS, and, therefore, we anticipate no impact on national security. 
Consequently, the Secretary is not intending to exercise his discretion 
to exclude any areas from the final designation based on impacts on 
national security unless we receive new information on such impacts 
during the public comment period.

Consideration of Other Relevant Impacts

    We have not considered any areas for exclusion from critical 
habitat. As explained above, there are no DoD or national security 
impacts, and as described below, there are no Tribal trust impacts 
associated with the proposed designation. 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. Accordingly, we have prepared a 
draft economic analysis (DEA) concerning the proposed critical habitat 
designation, which is available for review and comment (see ADDRESSES, 
above).

Exclusions

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and

[[Page 5090]]

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 Big Sandy or 
Guyandotte River crayfishes, and the proposed designation does not 
include any tribal lands or trust resources. We anticipate no impact on 
tribal lands, partnerships, or HCPs from this proposed critical habitat 
designation.
    During the development of a final designation, we will consider any 
information currently available or received during the public comment 
period regarding the economic, national security, or other relevant 
impacts of the proposed designation and will determine whether any 
specific areas should be excluded from the final critical habitat 
designation under authority of section 4(b)(2) and our implementing 
regulations at 50 CFR 424.19.

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.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order (E.O.) 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 by this designation. There 
is no requirement under the RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if adopted as 
proposed, the 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 adopted, the proposed 
critical habitat designation

[[Page 5091]]

would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Executive Order 13771

    This proposed rule is not an 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.

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. Coal mining, pipeline and utility crossings, and oil 
and gas exploration activities regularly occur within the range of the 
Big Sandy and Guyandotte River crayfishes and their proposed critical 
habitat units/subunits (Service 2019, pp. 7-8). These are routine 
activities that the Service consults on with the Office of Surface 
Mining, the Federal Energy Regulatory Commission, and the U.S. Army 
Corps of Engineers under section 7 of the Act. In our draft economic 
analysis (DEA), we do not find that the designation of this proposed 
critical habitat would significantly affect energy supplies, 
distribution, or use. As discussed in the DEA, the costs associated 
with consultations related to occupied critical habitat would be 
largely administrative in nature and the costs associated with the two 
mining projects in unoccupied critical habitat are estimated not to 
exceed $60,000 per year (IEc 2019, pp. 1, 14-15). The full cost of the 
entire proposed designation is not expected to exceed $920,000 per 
year, which does not reach the significant threshold of $100 million 
per year. Therefore, this action is not a significant energy action, 
and no Statement of Energy Effects is required. However, we will 
further evaluate this issue as we conduct our economic analysis, and 
review and revise this assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments. The waters we are proposing to 
designate as critical habitat are owned by the States of Kentucky, 
Virginia, and West Virginia. None of these government entities fits 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 the Big Sandy and Guyandotte River crayfishes in a takings 
implications assessment. The Act does not authorize the Service to 
regulate private actions on private lands or confiscate private 
property as a result of critical habitat designation. Designation of 
critical habitat does not affect land ownership, or establish any 
closures, or restrictions on use of or access to the designated areas. 
Furthermore, the designation of critical habitat does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. However, Federal agencies are 
prohibited from carrying out, funding, or authorizing actions that 
would destroy or adversely modify critical habitat. A takings 
implications assessment has been completed and concludes that this 
designation of critical habitat for the Big Sandy and Guyandotte River 
crayfishes does not pose significant takings implications for lands 
within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies in Kentucky, Virginia, and 
West Virginia. 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

[[Page 5092]]

States and local governments, or for anyone else. As a result, the rule 
would not have substantial direct effects either on the States, or on 
the relationship between the national government and the States, or on 
the distribution of powers and responsibilities among the various 
levels of government. The designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We propose 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 designated areas of 
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 any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of references cited in this proposed rule is 
available on the internet at http://www.regulations.gov and upon 
request from the North Atlantic-Appalachian Regional Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rulemaking are the staff 
members of the North Atlantic-Appalachian Regional Office, Kentucky 
Ecological Services Field Office, Southwestern Virginia Field Office, 
and the West Virginia 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 revising the entries for ``Crayfish, Big 
Sandy'' and ``Crayfish, Guyandotte River'' under ``CRUSTACEANS'' in the 
List of Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

[[Page 5093]]

 
                                                  * * * * * * *
Crayfish, Big Sandy.............  Cambarus callainus.  Wherever found....            T   81 FR 20450, 4/7/2016;
                                                                                          50 CFR 17.95(h).\CH\
 
                                                  * * * * * * *
Crayfish, Guyandotte River......  Cambarus veteranus.  Wherever found....            E   81 FR 20450, 4/7/2016;
                                                                                          50 CFR 17.95(h).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.95(h) by adding entries for ``Big Sandy Crayfish 
(Cambarus callainus)'' and ``Guyandotte River Crayfish (Cambarus 
veteranus)'' in the same order that these species appear in the table 
at Sec.  17.11(h) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *
    Big Sandy Crayfish (Cambarus callainus)
    (1) Critical habitat units are depicted for Martin, Pike, Johnson, 
and Floyd Counties, Kentucky; Buchanan, Dickenson, and Wise Counties, 
Virginia; and McDowell, Mingo, and Wayne Counties, West Virginia, on 
the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Big Sandy crayfish consist of the 
following components:
    (i) Fast-flowing stream reaches with unembedded slab boulders, 
cobbles, or isolated boulder clusters within an unobstructed stream 
continuum (i.e.. riffle, run, pool complexes) of permanent, moderate- 
to large-sized (generally third order and larger) streams and rivers 
(up to the ordinary high water mark as defined at 33 CFR 329.11).
    (ii) Streams and rivers with natural variations in flow and 
seasonal flooding sufficient to effectively transport sediment and 
prevent substrate embeddedness.
    (iii) Water quality characterized by seasonally moderated 
temperatures and physical and chemical parameters (e.g., pH, 
conductivity, dissolved oxygen) sufficient for the normal behavior, 
growth, reproduction, and viability of all life stages of the species.
    (iv) An adequate food base, indicated by a healthy aquatic 
community structure including native benthic macroinvertebrates, 
fishes, and plant matter (e.g., leaf litter, algae, detritus).
    (v) Aquatic habitats protected from riparian and instream 
activities that degrade the physical and biological features described 
in paragraphs (2)(i) through (iv) of this entry or cause physical 
(e.g., crushing) injury or death to individual Big Sandy crayfish.
    (vi) An interconnected network of streams and rivers that have the 
physical and biological features described in paragraphs (2)(i) through 
(iv) of this entry and that allow for the movement of crayfish in 
response to environmental, physiological, or behavioral drivers. The 
scale of the interconnected stream network should be sufficient to 
allow for gene flow within and among watersheds.
    (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 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of U.S. Geological Survey digital ortho-photo 
quarter-quadrangles, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) Zone 15N coordinates. ESRI's ArcGIS 
10.0 software was used to determine latitude and longitude coordinates 
using decimal degrees. The USA Topo ESRI online basemap service was 
referenced to identify features (like roads and streams) used to 
delineate the upstream and downstream extents of critical habitat 
units. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site at 
https://www.fws.gov/westvirginiafieldoffice/, at http://www.regulations.gov at Docket No. FWS-R5-ES-2019-0098, and at the North 
Atlantic-Appalachian Regional Office. 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 of Units 1 and 2 follows:

[[Page 5094]]

[GRAPHIC] [TIFF OMITTED] TP28JA20.000

    (6) Unit 1: Upper Levisa Fork--Dismal Creek, Buchanan County, 
Virginia.
    (i) General description: Unit 1 includes approximately 29.2 stream 
kilometers (skm) (18.1 stream miles (smi)) of Dismal Creek from its 
confluence with Laurel Fork (37.234458, -81.862347) downstream to its 
confluence with Levisa Fork (37.233465, -82.043663) in Buchanan County, 
Virginia.
    (ii) Map of Unit 1 follows:

[[Page 5095]]

[GRAPHIC] [TIFF OMITTED] TP28JA20.001


[[Page 5096]]


    (7) Unit 2: Russell Fork--Buchanan, Dickenson, and Wise Counties, 
Virginia, and Pike County, Kentucky.
    (i) Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, 
Virginia, and Pike County, Kentucky.
    (A) General description: Subunit 2a consists of approximately 83.8 
skm (52.1 smi) of Russell Fork from its confluence with Ball Creek at 
Council, Virginia (37.077889, -82.062759), downstream to its confluence 
with Levisa Fork at Levisa Junction, Kentucky (37.407259, -82.439904).
    (B) Map of Subunit 2a follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.002
    

[[Page 5097]]


    (ii) Subunit 2b: Hurricane Creek, Buchanan County, Virginia.
    (A) General description: Subunit 2b consists of approximately 5.9 
skm (3.7 smi) of Hurricane Creek from its confluence with Gilbert 
Branch (37.106350, -82.0939999) downstream to its confluence with 
Russell Fork at Davenport, Virginia (37.101311, -82.137719).
    (B) Map of Subunit 2b follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.003
    

[[Page 5098]]


    (iii) Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, 
Virginia.
    (A) General description: Subunit 2c consists of approximately 7.4 
skm (4.6 smi) of Indian Creek from its confluence with Three Forks in 
Buchanan County, Virginia (37.072393, -82.134788), downstream to its 
confluence with Russell Fork in Buchanan and Dickenson Counties, 
Virginia (37.109915, -82.157881).
    (B) Map of Subunit 2c follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.004
    

[[Page 5099]]


    (iv) Subunit 2d: Fryingpan Creek, Dickenson County, Virginia.
    (A) General description: Subunit 2d consists of approximately 4.6 
skm (2.9 smi) of Fryingpan Creek from its confluence with Priest Fork 
(37.068649, -82.214330) downstream to its confluence with Russell Fork 
(37.163426, -82.255683).
    (B) Map of Subunit 2d follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.005
    

[[Page 5100]]


    (v) Subunit 2e: Lick Creek, Dickenson County, Virginia.
    (A) General description: Subunit 2e consists of approximately 16.2 
skm (10.1 smi) of Lick Creek from its confluence with Cabin Fork near 
Aily, Virginia (37.89885, -82.293036), downstream to its confluence 
with Russell Fork at Birchfield, Virginia (37.176104, -82.270633).
    (B) Map of Subunit 2e follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.006
    

[[Page 5101]]


    (vi) Subunit 2f: Russell Prater Creek, Buchanan and Dickenson 
Counties, Virginia.
    (A) General description: Subunit 2f consists of approximately 8.4 
skm (5.2 smi) of Russell Prater Creek from its confluence with 
Greenbrier Creek (37.211915, -82.236479) downstream to its confluence 
with Russell Fork at Haysi, Virginia (37.204347, -82.291918).
    (B) Map of Subunit 2f follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.007
    

[[Page 5102]]


    (vii) Subunit 2g: McClure River and Open Fork, Dickenson County, 
Virginia.
    (A) General description: Subunit 2g consists of approximately 35.6 
skm (22.1 smi) of the McClure River and McClure Creek from the 
confluence of McClure Creek and Wakenva Branch (37.034201, -82.311081) 
downstream to the confluence of McClure River and Russell Fork 
(37.205175, -82.295412); and approximately 4.9 km (3.0 mi) of Open Fork 
from the confluence of Middle Fork Open Fork and Coon Branch 
(37.038336, -82.355402) downstream to the confluence of Open Fork and 
McClure Creek at Nora, Virginia (37.069451, -82.346317).
    (B) Map of Subunit 2g follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.008
    

[[Page 5103]]


    (viii) Subunit 2h: Elkhorn Creek, Pike County, Kentucky.
    (A) General description: Subunit 2h consists of approximately 8.5 
skm (5.3 smi) of Elkhorn Creek from its confluence with Mountain Branch 
(37.271984, -82.405623) downstream to its confluence with Russell Fork 
at Elkhorn City, Kentucky (37.302386, -82.354708).
    (B) Map of Subunit 2h follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.009
    

[[Page 5104]]


    (ix) Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson 
and Wise Counties, Virginia.
    (A) General description: Subunit 2i consists of approximately 24.6 
skm (19.0 smi) of the Cranes Nest River from its confluence with 
Birchfield Creek (37.065100, -82.496553) downstream to its confluence 
with Lick Branch (37.158007, -82.402839) and approximately 6.9 skm (4.3 
smi) of Birchfield Creek from its confluence with Dotson Creek 
(37.055320, -82.552734) downstream to its confluence with Cranes Nest 
River (37.063510, -82.496553).
    (B) Map of Subunit 2i follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.010
    

[[Page 5105]]


    (x) Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia.
    (A) General description: Subunit 2j consists of approximately 28.5 
skm (17.7 smi) of the Pound River from its confluence with Bad Creek 
(37.391300, -82.605201) downstream to the confluence of the Pound River 
and Jerry Branch (37.189207, -82.444613).
    (B) Map of Subunit 2j follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.011
    

[[Page 5106]]


    (8) Note: Index map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.012
    

[[Page 5107]]


    (9) Unit 3: Lower Levisa Fork--Floyd, Johnson, and Pike Counties, 
Kentucky.
    (i) Subunit 3a: Levisa Fork, Floyd, Johnson, and Pike Counties, 
Kentucky.
    (A) General description: Subunit 3a consists of approximately 15.9 
km (9.9 mi) of Levisa Fork from its confluence with Russell Fork at 
Levisa Junction, Kentucky (37.407259, -82.439904), downstream to its 
confluence with Island Creek at Pikeville, Kentucky (37.464506, -
82.525588); and 17.5 skm (10.9 smi) of Levisa Fork from its confluence 
with Abbott Creek (37.687149, -82.783021) downstream to its confluence 
with Miller Creek at Auxier, Kentucky.
    (B) Map of Subunit 3a follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.013
    

[[Page 5108]]


    (ii) Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky.
    (A) General description: Subunit 3b consists of approximately 32.2 
skm (20.0 smi) of Shelby Creek from its confluence with Burk Branch 
(37.299511, -82.608677) downstream to its confluence with Levisa Fork 
at Shelbiana, Kentucky (37.426986, -82.497604); and approximately 12.9 
skm (8.0 smi) of Long Fork from the confluence of Right Fork Long Fork 
and Left Fork Long Fork (37.286508, -82.663639) downstream to the 
confluence of Long Fork and Shelby Creek at Virgie, Kentucky 
(37.338841, -82.585800).
    (B) Map of Subunit 3b follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.014
    

[[Page 5109]]


    (10) Note: Index map of Unit 4 follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.015
    

[[Page 5110]]


    (11) Unit 4: Tug Fork--McDowell, Mingo, and Wayne Counties, West 
Virginia; Buchanan County, Virginia; and Pike and Martin Counties, 
Kentucky.
    (i) Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West 
Virginia; Buchanan County, Virginia; and Pike and Martin Counties, 
Kentucky.
    (A) General description: Subunit 4a consists of approximately 106.1 
skm (65.9 smi) of the Tug Fork from its confluence with Elkhorn Creek 
at Welch, West Virginia (37.430721, -81.586455), downstream to its 
confluence with Blackberry Creek in Pike County, Kentucky (37.607876, -
82.162722); and 11.7 skm (7.3 smi) of the Tug Fork from its confluence 
with Little Elk Creek (37.885876, -82.421245) downstream to its 
confluence with Bull Creek at Crum, West Virginia (37.924275, -
82.480983).
    (B) Map of Subunit 4a follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.016
    

[[Page 5111]]


    (ii) Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West 
Virginia.
    (A) General description: Subunit 4b consists of approximately 45.2 
skm (28.1 smi) of Dry Fork from its confluence with Jacobs Fork 
(37.280873, -81.665897) downstream to its confluence with Tug Fork at 
Iaeger, West Virginia (37.462387, -81.817595); and approximately 4.6 
skm (2.9 smi) of Bradshaw Creek from its confluence with Hite Fork at 
Jolo, West Virginia (37.323526, -81.819835), downstream to its 
confluence with Dry Fork at Bradshaw, West Virginia (37.352839, -
81.799246).
    (B) Map of Subunit 4b follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.017
    

[[Page 5112]]


    (iii) Subunit 4c: Panther Creek, McDowell County, West Virginia.
    (A) General description: Subunit 4c consists of approximately 10.7 
skm (6.6 smi) of Panther Creek from its confluence with George Branch 
(37.428924, -81.861612) downstream to its confluence with Tug Fork at 
Panther, West Virginia (37.482947, -81.898348).
    (B) Map of Subunit 4c follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.018
    

[[Page 5113]]


    (iv) Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike 
County, Kentucky.
    (A) General description: Subunit 4d consists of approximately 16.6 
skm (10.3 smi) of Knox Creek from its confluence with Cedar Branch 
(37.454923, -82.050515) downstream to its confluence with Tug Fork in 
Pike County, Kentucky (37.536035, -82.059658).
    (B) Map of Subunit 4d follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.019
    

[[Page 5114]]


    (v) Subunit 4e: Peter Creek, Pike County, Kentucky.
    (A) General description: Subunit 4e consists of approximately 10.1 
skm (6.3 smi) of Peter Creek from the confluence of Left Fork Peter 
Creek and Right Fork Peter Creek at Phelps, Kentucky (37.514158, -
82.152615), downstream to the confluence of Peter Creek and Tug Fork at 
Freeburn, Kentucky (37.566644, -82.144842).
    (B) Map of Subunit 4e follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.020
    

[[Page 5115]]


    (vi) Subunit 4f: Blackberry Creek, Pike County, Kentucky.
    (A) General description: Subunit 4f consists of approximately 9.1 
skm (5.7 smi) of Blackberry Creek its confluence with Bluespring Branch 
(37.549770, -82.188713) downstream to the confluence of Blackberry 
Creek and Tug Fork (37.607876, -82.162722).
    (B) Map of Subunit 4f follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.021
    

[[Page 5116]]


    (vii) Subunit 4g: Pigeon Creek and Laurel Fork, Mingo County, West 
Virginia.
    (A) General description: Subunit 4g consists of approximately 14.0 
skm (8.7 smi) of Pigeon Creek from its confluence with Trace Fork 
(37.773483, -82.237696) downstream to its confluence with Tug Fork 
(37.789979, -82.351194); and approximately 11.1 skm (6.9 smi) of Laurel 
Fork from its confluence with Lick Branch (37.837657, -82.219076) 
downstream to its confluence with Pigeon Creek at Lenore, West Virginia 
(37.796029, -82.287111).
    (B) Map of Subunit 4g follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.022
    
Guyandotte River Crayfish (Cambarus veteranus)
    (1) Critical habitat units are depicted for Logan and Wyoming 
Counties, West Virginia, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Guyandotte River crayfish consist 
of the following components:
    (i) Fast-flowing stream reaches with unembedded slab boulders, 
cobbles, or isolated boulder clusters within an unobstructed stream 
continuum (i.e., riffle, run, pool complexes) of permanent, moderate- 
to large-sized (generally third order and larger) streams and rivers 
(up to the ordinary high water mark as defined at 33 CFR 329.11).
    (ii) Streams and rivers with natural variations in flow and 
seasonal flooding sufficient to effectively transport sediment and 
prevent substrate embeddedness.
    (iii) Water quality characterized by seasonally moderated 
temperatures and physical and chemical parameters (e.g., pH, 
conductivity, dissolved oxygen) sufficient for the normal behavior, 
growth, reproduction, and viability of all life stages of the species.
    (iv) An adequate food base, indicated by a healthy aquatic 
community structure including native benthic macroinvertebrates, 
fishes, and plant matter (e.g., leaf litter, algae, detritus).
    (v) Aquatic habitats protected from riparian and instream 
activities that degrade the physical and biological features described 
in paragraphs (2)(i) through (iv) of this entry or cause physical 
(e.g., crushing) injury or death to individual Guyandotte River 
crayfish.
    (vi) An interconnected network of streams and rivers that have the 
physical and biological features described in paragraphs (2)(i) through 
(iv) of this entry and that allow for the movement of crayfish in 
response to environmental, physiological, or behavioral drivers. The 
scale of the interconnected stream network should be sufficient to 
allow for gene flow within and among watersheds.
    (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 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of U.S. Geological Survey digital ortho-photo 
quarter-quadrangles,

[[Page 5117]]

and critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) Zone 15N coordinates. ESRI's ArcGIS 10.0 software was 
used to determine latitude and longitude coordinates using decimal 
degrees. The USA Topo ESRI online basemap service was referenced to 
identify features (like roads and streams) used to delineate the 
upstream and downstream extents of critical habitat units. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site at https://www.fws.gov/westvirginiafieldoffice/, at http://www.regulations.gov at Docket No. 
FWS-R5-ES-2019-0098, and at the North Atlantic-Appalachian Regional 
Office. 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 of critical habitat for the Guyandotte River 
crayfish follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.023


[[Page 5118]]


    (6) Unit 1: Upper Guyandotte--Logan and Wyoming Counties, West 
Virginia.
    (i) Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia.
    (A) General description: Subunit 1a consists of approximately 28.6 
skm (17.8 smi) of Pinnacle Creek from its confluence with Beartown Fork 
(37.489547, -81.394295) downstream to its confluence with the 
Guyandotte River at Pineville, West Virginia (37.574700, -81.536473).
    (B) Map of Subunit 1a follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.024
    

[[Page 5119]]


    (ii) Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West 
Virginia.
    (A) General description: Subunit 1b consists of approximately 38.0 
skm (23.6 smi) of Clear Fork and its primary tributary Laurel Fork from 
the confluence of Laurel Creek and Acord Branch (37.669908, -81.551222) 
downstream to the confluence of Clear Fork and the Guyandotte River 
(37.607552, -81.730974).
    (B) Map of Subunit 1b follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.025
    

[[Page 5120]]


    (iii) Subunit 1c: Guyandotte River, Wyoming County, West Virginia.
    (A) General description: Subunit 1c consists of approximately 35.8 
skm (22.2 smi) of the Guyandotte River from its confluence with 
Pinnacle Creek at Pineville, West Virginia (37.574700, -81.536473), 
downstream to its confluence with Clear Fork (37.607552, -81.730974).
    (B) Map of Subunit 1c follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.026
    

[[Page 5121]]


    (iv) Subunit 1d: Indian Creek, Wyoming County, West Virginia.
    (A) General description: Subunit 1d consists of approximately 4.2 
skm (2.6 smi) of Indian Creek from the confluence of Indian Creek and 
Brier Creek at Fanrock, West Virginia (37.566268, -81.650848), to the 
confluence of Indian Creek and the Guyandotte River (37.587149, -
81.664680).
    (B) Map of Subunit 1d follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.027
    

[[Page 5122]]


    (v) Subunit 1e: Huff Creek, Wyoming and Logan Counties, West 
Virginia.
    (A) General description: Subunit 1e consists of approximately 28.0 
skm (17.4 smi) of Huff Creek from its confluence with Straight Fork 
(37.748834, -81.640132) downstream to its confluence with the 
Guyandotte River at Huff, West Virginia (37.730736, -81.873387).
    (B) Map of Subunit 1e follows:
    [GRAPHIC] [TIFF OMITTED] TP28JA20.028
    
* * * * *

    Dated: January 15, 2020.
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-01012 Filed 1-27-20; 8:45 am]
BILLING CODE 4333-15-P