Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog and Endangered Status for Carolina Madtom and Designations of Critical Habitat, 45839-45861 [2020-15347]

Download as PDF khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531– 1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to authorize state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Under RCRA section 3006(b), EPA grants a state’s application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in proposing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the ‘‘Attorney General’s Supplemental Guidelines for the Evaluation of Risk VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 and Avoidance of Unanticipated Takings’’ issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). ‘‘Burden’’ is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this action proposes authorization of pre-existing state rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by state law, and there are no anticipated significant adverse human health or environmental effects, this proposed rule is not subject to Executive Order 12898. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirement. Authority: This action is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b). Dated: July 9, 2020. Kurt Thiede, Regional Administrator, Region 5. [FR Doc. 2020–15219 Filed 7–29–20; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 45839 DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2018–0092; FF09E21000 FXES11110900000 201] RIN 1018–BC28 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog and Endangered Status for Carolina Madtom and Designations of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule; revisions and reopening of comment period. AGENCY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our May 22, 2019, proposed rule to list the Carolina madtom (Noturus furiosus) as an endangered species and the Neuse River waterdog (Necturus lewisi) as a threatened species with a section 4(d) rule, and to designate critical habitat for both species under the Endangered Species Act of 1973, as amended (Act). In this document, we present revisions to the section 4(d) rule language and to the critical habitat designation we proposed for the Neuse River waterdog on May 22, 2019. We now propose to designate a total of 779 miles (1,254 kilometers) as critical habitat for the Neuse River waterdog across 18 units within portions of 18 counties in North Carolina. This amounts to an increase of 41 miles (66 kilometers) in the proposed critical habitat designation for that species. We are reopening the comment period to allow all interested parties the opportunity to comment on the May 22, 2019, proposed rule, as well as the revisions described in this document. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule. DATES: The comment period for the proposed rule published May 22, 2019, at 84 FR 23644, is reopened. So that we can fully consider your comments in our final determination, submit them on or before August 31, 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. ADDRESSES: Document availability: You may obtain copies of the May 22, 2019, proposed rule and associated documents on the internet at http:// SUMMARY: E:\FR\FM\30JYP1.SGM 30JYP1 45840 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS www.regulations.gov under Docket No. FWS–R4–ES–2018–0092 or by mail from the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Written comments: You may submit written comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R4–ES–2018–0092, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit your comments by U.S. mail to: Public Comments Processing, Attn: FWS–R4– ES–2018–0092, 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 Information Requested, below, for more information). FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, 551F Pylon Drive, Raleigh, NC 27606; telephone 919–856– 4520. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Information Requested We will accept written comments and information during this reopened comment period on our May 22, 2019, proposed listing determination and designation of critical habitat for the Carolina madtom and proposed listing determination with section 4(d) rule and designation of critical habitat for the Neuse River waterdog (84 FR 23644), the revisions to the section 4(d) rule and proposed critical habitat designation for the Neuse River waterdog that are described in this document, and our draft economic analysis (DEA) of the proposed critical habitat designations for both species. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning: (1) The Carolina madtom’s and Neuse River waterdog’s biology, range, and population trends, including: VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species, their habitats, or both. (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the species and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of the species, including the locations of any additional populations of the species. (5) Information on activities that are necessary and advisable to provide for the conservation of the Neuse River waterdog to include in a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 4(d) rule. (6) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent. (7) Specific information on: (a) The amount and distribution of Carolina madtom or Neuse River waterdog habitat; (b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the relevant 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 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 (d) What areas not occupied at the time of listing are essential for the conservation of the species and why. (8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding areas that may be impacted. (10) Information on the extent to which the description of probable economic impacts in the DEA is a reasonable estimate of the likely economic impacts. (11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. (12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ If you submitted comments or information on the May 22, 2019, proposed rule or DEA during the comment period that was open from May 22, 2019, to July 22, 2019, please do not resubmit them. Any such comments are already part of the public record of this rulemaking proceeding, and we will fully consider them in the preparation of our final determination. Our final determination will take into consideration all written comments and any additional information we receive during both comment periods. The final decision may differ from the May 22, 2019, proposed rule, as revised by the proposals described in this document, based on our review of all information E:\FR\FM\30JYP1.SGM 30JYP1 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules we receive during this rulemaking proceeding. You may submit your comments and materials concerning the May 22, 2019, proposed rule, this document, or the DEA by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit a comment via http:// www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the website. We will post all hardcopy comments on http:// www.regulations.gov as well. If you submit a hardcopy comment 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. Comments and materials we receive, as well as supporting documentation we used in preparing the May 22, 2019, proposed rule, this document, and the DEA, will be available for public inspection on http:// www.regulations.gov at Docket No. FWS–R4–ES–2018–0092, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the May 22, 2019, proposed rule, this document, and the DEA on the internet at http://www.regulations.gov at Docket No. FWS–R4–ES–2018–0092, or by mail from the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). khammond on DSKJM1Z7X2PROD with PROPOSALS Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 15 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). 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. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that a species is threatened instead of endangered (or vice versa), or we may conclude that a species does not warrant listing as either an endangered species or a threatened species. Such final decisions would: (1) Be based on the best scientific and commercial data available after considering all of the relevant factors; (2) rely only on factors authorized by statute; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion. Background The purpose of this document is to discuss only those topics directly relevant to the revised proposed section 4(d) rule language and the designation of critical habitat for the Neuse River waterdog. For more information on the Carolina madtom and the Neuse River waterdog, their habitats, and previous Federal actions concerning either species, refer to the proposed rule published in the Federal Register on May 22, 2019 (84 FR 23644). In our May 22, 2019, proposed rule, we proposed to list the Neuse River waterdog as a threatened species with a section 4(d) rule, including exceptions for species restoration efforts by State wildlife agencies, channel restoration projects, bank stabilization projects, and silvicultural practices and forest management activities. That rule also proposed to designate critical habitat in 16 units encompassing approximately 738 stream miles (1,188 kilometers) in the Tar and Neuse river basins in North Carolina. In addition, we announced the availability of a DEA of the proposed critical habitat designation. We accepted comments on the proposal and DEA for 60 days, ending July 22, 2019. Based on information we received during the public comment period, we propose to revise the section 4(d) rule and critical habitat designation for Neuse River waterdog, and we are therefore reopening the comment period for 30 days to allow the public additional time to submit comments on both the May 22, 2019, proposed rule, as well as the revisions described in this document. New Information and Revisions to Previously Proposed Section 4(d) Rule Section 4(d) of the Act contains two sentences. The first sentence states that PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 45841 the ‘‘Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation’’ of species listed as threatened. The U.S. Supreme Court has noted that statutory language like ‘‘necessary and advisable’’ demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean ‘‘the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.’’ The second sentence of section 4(d) of the Act states that the Secretary ‘‘may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants.’’ Thus, section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary’s discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or included a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was enacted, ‘‘once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Exercising its authority under section 4(d), the Service has developed a species-specific proposed rule that is designed to address the Neuse River waterdog’s specific threats and conservation needs. Although the E:\FR\FM\30JYP1.SGM 30JYP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 45842 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules statute does not require the Service to make a ‘‘necessary and advisable’’ finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Neuse River waterdog. The proposed 4(d) rule would promote conservation of the Neuse River waterdog by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Neuse River waterdog. It would be one of the tools that the Service would use to promote the conservation of the Neuse River waterdog. It would apply only if and when the Service makes final the listing of the Neuse River waterdog as a threatened species. As discussed under the May 22, 2019, proposed rule’s Summary of Biological Status and Threats (84 FR 23644, pp. 84 FR 23646–23652), declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats are affecting the status of the Neuse River waterdog. These threats, which are expected to be exacerbated by continued urbanization and the effects of climate change, were central to our assessment of the future viability of the Neuse River waterdog. Therefore, we propose to prohibit actions that result in the incidental take of Neuse River waterdog by altering or degrading the habitat. Regulating incidental take resulting from these activities would help preserve the species’ remaining populations, slow its rate of decline, and decrease synergistic, negative effects from other stressors. This 4(d) rule would provide for the conservation of the Neuse River waterdog by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. Under the Act, ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and/or intentional take would help preserve the species’ VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors. Therefore, we proposed to prohibit intentional take of the Neuse River waterdog, including, but not limited to, capturing, handling, trapping, collecting, or other activities. In this document, we propose to change the way in which the provisions of the 4(d) rule for the Neuse River waterdog would appear in 50 CFR 17.43, and we would no longer refer to the prohibitions set forth at 50 CFR 17.31(a). Instead, we detail the prohibitions set forth at 50 CFR 17.21, which apply to endangered species. However, the substance of the prohibitions, and exceptions to those prohibitions, in the proposed 4(d) rule for the Neuse River waterdog have not changed. As we stated in the May 22, 2019, proposed rule, the species needs active conservation to improve the quality of its habitat. By excepting some of the general prohibitions of 50 CFR 17.21, these excepted actions can encourage cooperation by landowners and other affected parties in implementing conservation measures. This would allow use of the land while at the same time ensuring the protection of suitable habitat and minimizing impact on the species. During the comment period on the May 22, 2019, proposed rule, we received numerous comments from the public on several of the exceptions to the prohibitions in the proposed 4(d) rule. As a result of these comments, we retain the four exceptions, and propose to revise three of them. Below, we describe the four exceptions, the comments we received, and their proposed revisions, if any. The first exception, for incidental take resulting from species restoration efforts by State wildlife agencies, including collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species, remains unchanged from what we proposed on May 22, 2019 (84 FR 23644, see pp. 84 FR 23655, 23670). The second exception, for incidental take resulting from channel restoration projects, retains all of the language from the May 22, 2019, proposed rule for creation of natural, physically stable, ecologically functioning streams that are reconnected with their groundwater aquifer (84 FR 23644, see pp. 84 FR 23655, 23670). However, we propose to add language that would require surveys for and relocation of Neuse River waterdogs observed prior to commencement of restoration action. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 The third exception, for incidental take resulting from bank stabilization projects, remains largely unchanged from what we proposed on May 22, 2019 (84 FR 23644, see pp. 84 FR 23655, 23671), except that we propose to add a requirement that appropriate ‘‘native’’ vegetation, including woody species appropriate for the region and habitat, be used for stabilization. During the public comment period, the Service received several comments on the fourth exception for incidental take resulting from silvicultural practices and forest management activities (84 FR 23644, see pp. 84 FR 23655–23656, 23671), including seeking further clarification of the meaning of ‘‘highest standard’’ best management practices (BMPs). Therefore, to address any uncertainty regarding which silvicultural and forest management BMPs will satisfy this exception for incidental take resulting from silvicultural practices and forest management activities, we propose to revise our section 4(d) language to clarify that the BMPs must result in protection of the habitat features that provide for the breeding, feeding, sheltering, and dispersal needs of the Neuse River waterdog. Specifically concerning streamside management zones (SMZs), we propose to revise the proposed 4(d) rule to provide details about SMZ widths that would be protective of the habitat for the species, similar to those more substantial BMPs considered for ‘‘special/sensitive’’ streams that are designated ‘‘trout waters’’ and already implemented by the North Carolina forestry program in the Neuse and Tar River basins (North Carolina Forest Service (NCFS) 2006, p. 42). SMZs for waterbodies that are occupied by the Neuse River waterdog are intended to be similar to trout water buffers, as described by the North Carolina Department of Environmental Quality’s Environmental Management Commission (North Carolina General Statutes 113A–57), and to protect the species’ life-history requirements, as documented in the species status assessment (SSA) for the Neuse River waterdog (USFWS 2019, pp. 5–11). In waterbodies that support listed aquatic species, a wider SMZ is more effective at reducing sedimentation, maintaining lower water temperatures through shading, and introducing food (such as leaves and insects) into the food chain (VADF 2011, p. 37). Ninety percent of the food in forested streams comes from bordering vegetation (NCWRC 2002, p. 6; USFWS 2006, p. 6; Stewart et al. 2000, p. 210; USFWS 2018, p. 10). Neuse River waterdogs require cool, E:\FR\FM\30JYP1.SGM 30JYP1 45843 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules well-oxygenated water, and a clean stream bottom (USFWS 2018, p. 10). A lack of these features limits the number of waterdogs a stream can support. Aquatic habitat and suitable water temperature can be maintained even during logging operations when streamside vegetation is left intact (VADF 2011, p. 37). In addition, we propose to revise the 4(d) rule to provide details on how access roads, skid trails, and crossings can be used in a way that would be most protective of the habitat by reducing sedimentation (NCFS 2018, entire). Highly turbid, silted stream water can clog the external gills of waterdogs, and can also decrease the stream’s insect population, an important source of food (USFWS 2018, p. 8). Accordingly, we have clarified the intent of the fourth exception, for incidental take resulting from silviculture practices and forest management activities, to those practices and activities that implement State-approved best management practices (BMPs), which include the following specifications for streamside management zones (SMZs), stream crossings, and access roads: 1. A two-zoned SMZ is established and maintained along each side of the margins of intermittent streams, perennial streams, and perennial waterbodies (see table for example of current specifications based on slope similar to trout waters (VADF 2011, p. 15)). The SMZ is measured from bankfull (i.e., the top of the stream bank on both sides), and is expected to confine visible sediment resulting from accelerated erosion. TABLE 1—STREAMSIDE MANAGEMENT ZONE (SMZ) FOR WATERBODIES OCCUPIED BY NEUSE RIVER WATERDOG Zone 1 (no touch/no harvest; measured in feet) Percent slope of adjacent lands (%) khammond on DSKJM1Z7X2PROD with PROPOSALS 0–10 ............................................................................................................................................. 11–20 ........................................................................................................................................... 21–45 ........................................................................................................................................... 46+ ............................................................................................................................................... 2. Access roads and skid trails that cross an intermittent stream, a perennial stream, or a perennial waterbody are installed using properly designed and constructed structures installed at right angles to the stream. Structures do not impede fish passage or stream flow, and minimize the amount of visible sediment that enters that stream or waterbody. Number of crossings is minimized, and stable sites for crossings are chosen. These crossings are installed so that: a. Stream flow is not obstructed or impeded; b. No intermittent stream channel, perennial stream channel, or perennial waterbody is used as an access road or skid trail; c. Crossings are provided with effective structures or native ground cover to protect the stream banks and stream channel from accelerated erosion; d. Crossings have sufficient water control devices to collect and divert surface flow from the access road or skid trail into undisturbed areas or other control structures to restrain accelerated erosion and prevent visible sediment from entering intermittent streams, perennial streams, and perennial waterbodies; and e. Native ground cover, or best management practices, that prevents visible sediment from entering intermittent streams, perennial streams, and perennial waterbodies is provided within 10 working days of initial VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 disturbance and is maintained until the site is permanently stabilized. 3. All access roads and skid trails are located outside of SMZs unless no other alternative exists. These State-approved forestry BMPs are upheld by North Carolina’s Forest Practice Guidelines (FPGs) related to water quality standards and the Sustainable Forestry Initiative/Forest Stewardship Council/American Tree Farm System certification standards for both forest management and responsible fiber sourcing, and are publicly available on the websites for these organizations, as follows: • https://www.stateforesters.org/bmps/ • https://www.ncforestservice.gov/ publications/Forestry%20Leaflets/ WQ01.pdf • https://www.sfiprogram.org/wpcontent/uploads/2015_ 2019StandardsandRules Section2Oct2015.pdf • https://us.fsc.org/download.fsc-usforest-management-standard-v10.95.htm • https://www.treefarmsystem.org/ certification-american-tree-farmstandards We reiterate that these actions and activities may have some minimal level of take of the Neuse River waterdog, but are unlikely to negatively impact the species’ conservation and recovery efforts. To the contrary, we expect they would have a net beneficial effect on the species. Across the species’ range, instream habitats have been degraded physically by sedimentation and by PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 50 50 50 50 Zone 2 (selective harvest allowed; measured in feet) 16 25 50 70 Total SMZ width (measured in feet) 66 75 100 120 direct channel disturbance. The activities in the proposed 4(d) rule would correct some of these problems, creating more favorable habitat conditions for the species. As we already stated in the May 22, 2019, proposed rule, the proposed 4(d) rule would allow the issuance of permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. The Service recognizes State natural resource agencies as essential partners in the conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides E:\FR\FM\30JYP1.SGM 30JYP1 45844 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the Neuse River waterdog that may result in otherwise prohibited take without additional authorization. Finally, the proposed 4(d) rule would allow take of the Neuse River waterdog without a permit by any employee or agent of the Service or a State conservation agency who is designated by his/her agency for such purposes and when acting in the course of his official duties if such action is necessary to aid a sick, injured, or orphaned specimen; to dispose of a dead specimen; or to salvage a dead specimen which may be useful for scientific study. In addition, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship a Neuse River waterdog taken in violation of the Act as necessary. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Neuse River waterdog. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above). khammond on DSKJM1Z7X2PROD with PROPOSALS New Information and Revisions to Proposed Critical Habitat for Neuse River Waterdog During the public comment period, we received 83 letters containing 26 comments on the proposed critical habitat designation, with 7 substantive comments specific to the proposed designation for Neuse River waterdog. The comments from the North Carolina Wildlife Resources Commission (NCWRC) and one private consultant VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 provided new observation data collected since the November 2018 version of the SSA report, including updated 2018 and 2019 survey records in Middle Creek (Neuse River Basin, Johnston County, North Carolina), Tuckahoe Swamp (Trent River Basin, Jones County, North Carolina), Tar River (Tar River Basin, Franklin and Granville Counties, North Carolina), Fishing Creek (Tar River Basin, Nash County, North Carolina), and Bens Creek (Fishing Creek Subbasin, Warren County, North Carolina). Based on the new data, we propose certain revisions to the critical habitat designation we proposed on May 22, 2019, for the Neuse River waterdog. Specifically, we propose to add two units based on new observation data of the species provided by NCWRC in locations within the historical range; new Unit 3 is 2 miles (3.2 km) of Bens Creek in the Tar River Basin in Warren County, North Carolina, and new Unit 18 is 2 miles (3.2 km) of Tuckahoe Swamp in the Trent River Basin in Jones County, North Carolina. We also propose to revise Unit 1 to add 3.7 river miles (6 km) of the Upper Tar River based on a 2018 observation provided by NCWRC of Neuse River waterdog. We propose to revise Unit 4 (previously Unit 3) to add 20 miles (32.3 km) of Fishing Creek based on a 2019 observation provided by NCWRC of Neuse River waterdog. We propose to revise Unit 6 (previously Unit 5) to add 11 miles (17.8 km) of the upper reach of the Tar River based on a 2019 observation by a permitted private consultant of Neuse River waterdog. We propose to revise Unit 10 (previously Unit 9) to add 23.2 miles (37.4 km) of Middle Creek based on two 2018 observations provided by NCWRC of Neuse River waterdog. We propose to revise the downstream portion of Unit 17 (previously Unit 16) to remove 1.1 miles (2 km) of the Trent River that borders the U.S. Department of Defense’s Marine Corps Air Station Cherry Point Oak Grove Outlying Landing Field (OLF) based on the Neuse River waterdog being included in the Station’s integrated natural resources management plan. All of the additional stream miles are currently occupied, contain most or all of the physical or biological features to support life-history functions essential to the conservation of the Neuse River waterdog, and may require special management considerations or protection from threats as described in the May 22, 2019, proposed rule (84 FR 23644). Because of these revisions, the PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 numbering for most of the critical habitat units has changed from the May 22, 2019, proposed rule, although the names and descriptions remain the same. We also used a higher resolution National Hydrography Dataset GIS data layer, which resulted in minor changes to the stream mileage numbers. Most of the changes result in an increase or decrease of less than 3 mi (4.8 km) to proposed critical habitat in any unit, with the greatest change being an addition of 4.2 mi (6.8 km) to Unit 5 (previously Unit 4). The exception is Unit 17 (previously Unit 16), which had an error in the proposed stream mileage; to correct that error, in this document, we reduce the proposed critical habitat in that unit by approximately 28.5 mi (45.6 km). The DEA for the proposed critical habitat designation remains the same; the counties containing the new units are included in the DEA’s analysis that uses the consultation efforts occurring in counties, which overlap with the May 22, 2019, proposed designation for Neuse River waterdog critical habitat, as the basis of determining incremental costs. Revised Proposed Critical Habitat Designation In total, we now propose to designate approximately 779 miles (1,254 kilometers) in 18 units in North Carolina as critical habitat for the Neuse River waterdog. The proposed critical habitat areas described below constitute our best assessment, at this time, of areas that meet the definition of critical habitat, and all units are considered currently occupied by the species. Those 18 units are: (1) Upper Tar River, (2) Upper Fishing Creek, (3) Bens Creek, (4) Fishing Creek Subbasin, (5) Sandy/ Swift Creek, (6) Middle Tar River Subbasin, (7) Lower Tar River Subbasin, (8) Eno River, (9) Flat River, (10) Middle Creek, (11) Swift Creek, (12) Little River, (13) Mill Creek, (14) Middle Neuse River, (15) Contentnea Creek/Lower Neuse River Subbasin, (16) Swift Creek (Lower Neuse), (17) Trent River, and (18) Tuckahoe Swamp. Table 2 shows the name, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated units for the Neuse River waterdog. Where appropriate, Table 2 also notes the previous number for units for which the numbering has changed. E:\FR\FM\30JYP1.SGM 30JYP1 45845 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules TABLE 2—REVISED PROPOSED CRITICAL HABITAT UNITS FOR THE NEUSE RIVER WATERDOG Riparian ownership River miles (kilometers) Proposed changes Private; Easements .... Private; Easements .... Private ........................ Private; Easements; State. Private; Easements; State. Private; Easements; State. Private; Easements; State. Private; Easements; State. Private; Easements .... Private; Easements; Local. Private ........................ Private; Easements .... Private; Easements .... Private; State; Easements. Private; Easements .... 12.3 (19.8) ................. 10.5 (17) .................... 2 (3.2) ........................ 82.8 (133.3) ............... +3.7 mi (6 km) ........... none ........................... New ............................ +20 mi (32.3 km) ....... Unit 1: TAR1. Unit 2: TAR2. New Unit. Unit 3: TAR3a. 72.5 (116.8) ............... none ........................... Unit 4: TAR3b. 111 (179) ................... +11 mi (17.8 km) ....... Unit 5: TAR3c. 59.9 (96.3) ................. none ........................... Unit 6: TAR3d. 43.9 (70.6) ................. none ........................... Unit 7: NR1. 15.2 (24.5) ................. 30.8 (49.6) ................. none ........................... +23.2 mi (37.4 km) .... Unit 8: NR2. Unit 9: NR3. 24 (38.6) .................... 90.8 (146.1) ............... 20.8 (33.5) ................. 43.2 (69.5) ................. none none none none Unit Unit Unit Unit 114.8 (184.8) ............. none ........................... Unit 14: NR6. Private; Easements .... Private ........................ Private ........................ 10.3 (16.5) ................. 32.5 (52.4) ................. 2 (3.2) ........................ none ........................... ¥1.1 mi (2 km) .......... New ............................ Unit 15: NR7. Unit 16: TR1. New Unit. .................................... 779 (1,254) ................ +41 mi (66 km). Critical habitat unit Unit Unit Unit Unit 1. 2. 3. 4. TAR1—Upper Tar River ..................... TAR2—Upper Fishing Creek ............. TAR3—Bens Creek ............................ TAR4a—Fishing Creek Subbasin ...... Unit 5. TAR4b—Sandy/Swift Creek ............... Unit 6. TAR4c—Middle Tar River Subbasin .. Unit 7. TAR4d—Lower Tar River Subbasin ... Unit 8. NR1—Eno River ................................. Unit 9. NR2—Flat River ................................. Unit 10. NR3—Middle Creek ......................... Unit Unit Unit Unit 11. 12. 13. 14. NR4—Swift Creek ............................ NR5a—Little River ............................ NR5b—Mill Creek ............................. NR5c—Middle Neuse River ............. Unit 15. NR6—Contentnea Creek/Lower Neuse River Subbasin. Unit 16. NR7—Swift Creek (Lower Neuse) ... Unit 17. TR1—Trent River ............................. Unit 18. TR2—Tuckahoe Swamp .................. Total ........................................................ ........................... ........................... ........................... ........................... Previous unit numbering 10: 11: 12: 13: NR4. NR5a. NR5b. NR5c. Note: Distances may not sum due to rounding. The revised 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. For units that are unchanged from the May 22, 2019, proposed rule, please refer to information at http:// www.regulations.gov under Docket No. FWS–R4–ES–2018–0092. We include more detailed information on the boundaries of the revised proposed critical habitat designation in the discussion of new and revised proposed individual units below. khammond on DSKJM1Z7X2PROD with PROPOSALS Unit 1: TAR1—Upper Tar River Revised Unit 1 consists of 12.3 river miles (19.8 river km) of the Tar River in Granville County from approximately SR1004 (Old NC 75) downstream to SR1622 (Cannady’s Mill Road). We propose to revise Unit 1 to add 3.7 river miles (6 km) of the Upper Tar River based on a 2018 observation of Neuse River waterdog provided by NCWRC. The riparian land adjacent to this unit is primarily privately owned (80 percent), with several conservation parcels or easements (20 percent). The unit currently supports all breeding, feeding, and sheltering needs for the species. VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 Special management considerations or protection may be required to address excess sediment and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are likely agricultural and silvicultural runoff. Unit 3: TAR3—Bens Creek This is a new unit. Unit 3 consists of 2 river miles (3.2 river km) of Bens Creek in Warren County, North Carolina. The proposed designated area begins approximately one mile upstream and ends approximately one mile downstream of SR1509 (OdellLittleton Road). We propose the addition of this unit based on a 2019 observation of Neuse River waterdog provided by NCWRC. The riparian areas on either side of the river are privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required to address excess sediment and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are likely agricultural and silvicultural runoff. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 Unit 4: TAR4a—Fishing Creek Subbasin Revised Unit 4 (previously Unit 3) consists of 82.8 river miles (133.3 river km) of lower Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of SR1214 (Silvertown Rd) downstream to the confluence with Fishing Creek, and including the mainstem of Fishing Creek from the Warren/Halifax County line to the confluence with the Tar River in Halifax, Nash, and Edgecombe Counties. We propose to revise Unit 4 (previously Unit 3) to add 20 miles (32.3 km) of Fishing Creek based on a 2019 observation of Neuse River waterdog provided by NCWRC. The riparian land adjacent to the unit includes private land (86 percent), several conservation parcels (6 percent), and State game lands (8 percent). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required to address excess sediment and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are likely agricultural and silvicultural runoff. E:\FR\FM\30JYP1.SGM 30JYP1 45846 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules Unit 6: TAR4c—Middle Tar River Subbasin Revised Unit 6 (previously Unit 5) consists of 111 river miles (179 river km) of the Middle Tar River from upstream of Highway 401 downstream to the confluence with Fishing Creek, including Stony Creek below SR1300 (Boddies’ Millpond Rd), downstream to the confluence with the Tar River. This unit is located in Franklin, Nash, and Edgecombe Counties. We propose to revise Unit 6 (previously Unit 5) to add 11 miles (17.8 km) of the upper reach of the Tar River based on a 2019 observation of Neuse River waterdog provided by a permitted private consultant. The riparian land adjacent to this unit is nearly all private lands (99 percent), with less than 1 percent conservation parcels, local parks, and a research station. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address a variety of threats. Excessive amounts of nitrogen and phosphorus run off the land or are discharged into the waters, causing too much growth of microscopic or macroscopic vegetation and leading to extremely low levels of dissolved oxygen. As a result, there are six ‘‘impaired’’ stream reaches (as identified on the State’s Clean Water Act section 303d list) totaling approximately 32 miles in the unit. Expansion or addition of new wastewater discharges are also a threat to habitat in this unit. Special management focused on use of agricultural BMPs, implementation of highest levels of treatment of wastewater practicable, maintenance of forested buffers, and connection of protected riparian corridors will benefit habitat for the species in this unit. khammond on DSKJM1Z7X2PROD with PROPOSALS Unit 10: NR3—Middle Creek Revised Unit 10 (previously Unit 9) consists of 30.8 river miles (49.6 river km) of Middle Creek from Southeast Regional Park downstream to the confluence with Swift Creek in Johnston County, North Carolina. We propose to revise Unit 10 (previously Unit 9) to add 23.2 miles (37.4 km) of Middle Creek based on two 2018 observations of Neuse River waterdog provided by NCWRC. The riparian land adjacent to this unit is predominantly privately owned (91 percent) with a few conservation parcels (9 percent). The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required within this unit to address VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 threats, particularly from encroaching urbanization and pollution from agricultural and silvicultural runoff. Unit 17: TR1—Trent River Revised Unit 17 (previously Unit 16) consists of 32.5 river miles (52.4 river km) of Beaver Creek from SR1316 (McDaniel Fork Rd) to the confluence with the Trent River, and Trent River from the confluence with Poplar Branch downstream to the SR1121 (Oak Grove Rd) crossing at the Marine Corps Cherry Point property, in Jones County. This unit was decreased to not include land owned by the Marine Corps at its Air Station (MCAS) Cherry Point Oak Grove Outlying Landing Field. The base’s integrated natural resources management plan includes implementing ecosystem management practices that support the conservation and management of at-risk herpetofauna species, including Neuse River waterdog, known to occur at MCAS Cherry Point (Tetra Tech 2012, p.C–10). The riparian land adjacent to this unit is privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required to address excess sediment and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are likely agricultural and silvicultural runoff. Unit 18: TR2—Tuckahoe Swamp This is a new unit. Unit 18 consists of 2 river miles (3.2 river km) of Tuckahoe Swamp in Jones County, North Carolina. The proposed designated area begins upstream of SR1142 (Weyerhaeuser Road) to the confluence with the Trent River. The riparian areas on either side of the river are privately owned. The unit currently supports all breeding, feeding, and sheltering needs for the species. Special management considerations or protection may be required to address excess sediment and pollutants that enter the creek and serve as indicators of other forms of pollution such as bacteria and toxins, reducing water quality for the species. Sources of these types of pollution are likely agricultural and silvicultural runoff. References Cited A complete list of references cited in this document is available on the internet at http://www.regulations.gov and upon request from the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 Authors The primary authors of this document are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and Raleigh Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 84 FR 23644 (May 22, 2019) 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 § 17.43 by adding a paragraph (f) to read as follows: ■ § 17.43 Special rules—amphibians. * * * * * (f) Neuse River waterdog (Necturus lewisi). (1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Neuse River waterdog. Except as provided in paragraph (a)(2) of this section and § 17.4, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species: (i) Import or export, as set forth at § 17.21(b) for endangered wildlife. (ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife. (iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife. (iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife. (v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife. (2) Exceptions from prohibitions. In regard to this species, you may: (i) Conduct activities as authorized by a permit under § 17.32. (ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife. (iii) Take, as set forth at § 17.31(b). (iv) Possess and engage in other acts with unlawfully taken wildlife, as set E:\FR\FM\30JYP1.SGM 30JYP1 45847 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS forth at § 17.21(d)(2) for endangered wildlife. (v) Take incidental to the following activities: (A) Species restoration efforts by State wildlife agencies, including collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species. (B) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools comprised of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. Secondto third-order, headwater streams reconstructed in this way would offer suitable habitats for the Neuse River waterdog and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, feeding, migration, and other normal behaviors. Prior to restoration action, VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 surveys to determine presence of Neuse River waterdog must be performed, and if located, waterdogs must be relocated prior to project implementation. (C) Bank stabilization projects that use bioengineering methods to replace preexisting, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these bioengineering methods, stream banks may be stabilized using native species live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), native species live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or native species brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). Native species vegetation includes woody species appropriate for the region and habitat conditions. These methods will not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. (D) Silviculture practices and forest management activities that implement State-approved best management practices for sensitive areas, including a two-zoned streamside management zone (SMZ) (Zone 1 width is a 50-foot minimum with no harvest allowed; Zone 2 width is variable depending on slope and includes selective harvest) established and maintained along each PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 side of the margins of intermittent streams, perennial streams, and perennial waterbodies. The SMZ is measured from bankfull (i.e., the top of the stream bank), and will confine visible sediment resulting from accelerated erosion. Access roads and skid trails that cross an intermittent stream, a perennial stream, or a perennial waterbody will be installed using properly designed and constructed structures installed at right angles to the stream, will not impede fish passage or stream flow, and will minimize the amount of visible sediment that enters that stream or waterbody. The number of crossings will be minimized, stable sites for crossings will be chosen, and access roads and skid trails will be located outside of SMZs unless no other alternative exists. 3. Amend § 17.95(d), in the entry proposed at 84 FR 23644 for ‘‘Neuse River waterdog (Necturus lewisi),’’ by revising paragraphs (5) through (16) and by adding paragraphs (17) and (18) to read as follows: ■ § 17.95 * Critical habitat—fish and wildlife. * * * (d) Amphibians. * * * * * * Neuse River Waterdog (Necurus lewisi) * * * * * (5) Note: Index map follows: BILLING CODE 4333–15–P E:\FR\FM\30JYP1.SGM 30JYP1 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (6) Unit 1: TAR1—Upper Tar River, Granville County, North Carolina. (i) This unit consists of 12.3 river miles (19.8 river kilometers) of occupied VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 habitat in the Upper Tar River from approximately SR1004 (Old NC 75) downstream to SR1622 (Cannady’s Mill PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 Road). Unit 1 includes stream habitat up to bankfull height. (ii) Map of Unit 1 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.009</GPH> 45848 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 in Upper Fishing Creek from SR1118 (No Bottom Drive) downstream to NC58. Unit 2 includes stream habitat up to bankfull height. PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 (ii) Map of Unit 2 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.010</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (7) Unit 2: TAR2—Upper Fishing Creek, Warren County, North Carolina. (i) This unit consists of 10.5 river miles (17.0 river kilometers) of habitat 45849 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (8) Unit 3: TAR3—Bens Creek, Warren County, North Carolina. (i) This unit consists of 2 river miles (3.2 river km) of Bens Creek beginning VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 approximately one mile upstream and ending approximately one mile downstream of SR1509 (Odell-Littleton PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 Road). Unit 3 includes stream habitat up to bankfull height. (ii) Map of Unit 3 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.011</GPH> 45850 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 downstream to the confluence with Fishing Creek, and including the mainstem of Fishing Creek from the Warren/Halifax County line to the confluence with the Tar River in Halifax, Nash, and Edgecombe Counties. (iii) Unit 5 consists of 72.5 river miles (116.8 river kilometers) of habitat in Sandy Creek downstream of SR 1451 (Leonard Road) to the confluence with the Tar River, including Red Bud Creek downstream of the Franklin/Nash county line to the confluence with Swift Creek. (iv) Unit 6 consists of 111 river miles (179 river kilometers) of the Middle Tar River from upstream of Highway 401 dowstream to the confluence with PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 Fishing Creek, including Stony Creek below SR1300 (Boddies’ Millpond Rd), downstream to the confluence with the Tar River. (v) Unit 7 consists of 59.9 river miles (96.3 river kilometers) in the Lower Tar River Subbasin from the confluence with Fishing Creek downstream to the confluence with Barber Creek near SR1533 (Port Terminal Road). This unit includes portions of Town Creek below NC111 to the confluence with the Tar River, Otter Creek below SR1251 to the confluence with the Tar River, and Tyson Creek below SR1258 to the confluence with the Tar River. (vi) Map of Units 4, 5, 6, and 7 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.012</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (9) Unit 4: TAR4a—Fishing Creek Subbasin, Edgecombe, Halifax, Nash, and Warren Counties, North Carolina; Unit 5: TAR4b—Sandy/Swift Creek, Edgecombe, Franklin, Nash, and Warren Counties, North Carolina; Unit 6: TAR4c—Middle Tar River Subbasin, Edgecombe, Franklin, and Nash Counties, North Carolina; and Unit 7: TAR4d—Lower Tar River Subbasin, Edgecombe and Pitt Counties, North Carolina. (i) Units 4, 5, 6, and 7 include stream habitat up to bankfull height. (ii) Unit 4 consists of 82.8 river miles (133.3 river km) of lower Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of SR1214 (Silvertown Rd) 45851 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (10) Unit 8: NR1—Eno River, Durham and Orange Counties, North Carolina. (i) This unit consists of 43.9 river miles (70.6 river kilometers) of habitat VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 in the Eno River from NC86 downstream to the inundated portion of Falls Lake. Unit 7 includes stream habitat up to bankfull height. PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 (ii) Map of Unit 8 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.013</GPH> 45852 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 in the Flat River from SR1739 (Harris Mill Road) downstream to the inundated portion of Falls Lake. Unit 8 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 includes stream habitat up to bankfull height. (ii) Map of Unit 9 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.014</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (11) Unit 9: NR2—Flat River, Durham and Person Counties, North Carolina. (i) This unit consists of 15.2 river miles (24.5 river kilometers) of habitat 45853 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (12) Unit 10: NR3—Middle Creek, Johnston and Wake Counties, North Carolina. VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 (i) This unit consists of 30.8 river miles (49.6 river km) of Middle Creek from Southeast Regional Park downstream to the confluence with PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 Swift Creek in Johnston County, North Carolina. Unit 10 includes stream habitat up to bankfull height. (ii) Map of Unit 10 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.015</GPH> 45854 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 habitat in Swift Creek from NC42 downstream to the confluence with the Neuse River. Unit 11 includes stream habitat up to bankfull height. PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 (ii) Map of Unit 11 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.016</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (13) Unit 11: NR4—Swift Creek, Johnston County, North Carolina. (i) This unit consists of 24 river miles (38.6 river kilometers) of occupied 45855 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules (14) Unit 12: NR5a—Little River, Franklin, Johnston, Wake, and Wayne Counties, North Carolina; Unit 13: NR5b—Mill Creek, Johnston and Wayne Counties, North Carolina; and Unit 14: NR5c—Middle Neuse River, Wayne County, North Carolina. khammond on DSKJM1Z7X2PROD with PROPOSALS (i) Units 12, 13, and 14 include stream habitat up to bankfull height. VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 (ii) Unit 12 consists of 90.8 river miles (146.1 river kilometers) of habitat in the Little River from near NC96 in Wake County downstream to the confluence with the Neuse River, including Buffalo Creek from NC39 to the confluence with the Little River. (iii) Unit 13 consists of 20.8 river miles (33.5 river kilometers) of Mill Creek from upstream of US701 PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 downstream to the confluence with the Neuse River. (iv) Unit 14 consists of 43.2 river miles (69.5 river kilometers) of the Middle Neuse River from the confluence with Mill Creek downstream to the Wayne/Lenoir County line. (v) Map of Units 12, 13, and 14 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.017</GPH> 45856 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 in the Contentnea Creek from NC581 downstream to its confluence with the Neuse River, Nahunta Swamp from the Wayne/Greene County line to the confluence with Contentnea Creek, and the Neuse River from the confluence PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 with Contentnea Creek to the confluence with Pinetree Creek. Unit 15 includes stream habitat up to bankfull height. (ii) Map of Unit 15 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.018</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (15) Unit 15: NR6—Contentnea Creek/ Lower Neuse River Subbasin, Craven, Greene, Lenoir, Pitt, Wayne, and Wilson Counties, North Carolina. (i) This unit consists of 114.8 river miles (184.8 river kilometers) of habitat 45857 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (16) Unit 16: NR7—Swift Creek, Craven County, North Carolina. (i) This unit consists of 10.3 river miles (16.5 river kilometers) of habitat VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 in Swift Creek from SR1931 (Beaver Camp Rd) downstream to SR1440 (Streets Ferry Rd). Unit 16 includes stream habitat up to bankfull height. PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 (ii) Map of Unit 16 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.019</GPH> 45858 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 Fork Rd) to the confluence with the Trent River, and Trent River from the confluence with Poplar Branch downstream to SR1121 (Oak Grove Rd) crossing at the Marine Corps Cherry PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 Point property. Unit 17 includes stream habitat up to bankfull height. (ii) Map of Unit 17 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.020</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS (17) Unit 17: TR1—Trent River, Jones County, North Carolina. (i) This unit consists of 32.5 river miles (52.4 river kilometers) of habitat in Beaver Creek from SR1316 (McDaniel 45859 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS (18) Unit 18: TR2—Tuckahoe Swamp, Jones County, North Carolina. (i) This unit consists of 2 river miles (3.2 river km) of Tuckahoe Swamp in VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 Jones County, North Carolina. Unit 18 begins upstream of SR1142 (Weyerhaeuser Road) to the confluence PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 with the Trent River. Unit 18 includes stream habitat up to bankfull height. (ii) Map of Unit 18 follows: E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.021</GPH> 45860 Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Proposed Rules * * * * 45861 * Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–15347 Filed 7–29–20; 8:45 am] VerDate Sep<11>2014 16:16 Jul 29, 2020 Jkt 250001 PO 00000 Frm 00053 Fmt 4702 Sfmt 9990 E:\FR\FM\30JYP1.SGM 30JYP1 EP30JY20.022</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS BILLING CODE 4333–15–C

Agencies

[Federal Register Volume 85, Number 147 (Thursday, July 30, 2020)]
[Proposed Rules]
[Pages 45839-45861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15347]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0092; FF09E21000 FXES11110900000 201]
RIN 1018-BC28


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions and reopening of comment period.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our May 22, 2019, proposed rule to 
list the Carolina madtom (Noturus furiosus) as an endangered species 
and the Neuse River waterdog (Necturus lewisi) as a threatened species 
with a section 4(d) rule, and to designate critical habitat for both 
species under the Endangered Species Act of 1973, as amended (Act). In 
this document, we present revisions to the section 4(d) rule language 
and to the critical habitat designation we proposed for the Neuse River 
waterdog on May 22, 2019. We now propose to designate a total of 779 
miles (1,254 kilometers) as critical habitat for the Neuse River 
waterdog across 18 units within portions of 18 counties in North 
Carolina. This amounts to an increase of 41 miles (66 kilometers) in 
the proposed critical habitat designation for that species. We are 
reopening the comment period to allow all interested parties the 
opportunity to comment on the May 22, 2019, proposed rule, as well as 
the revisions described in this document. Comments previously submitted 
need not be resubmitted, as they will be fully considered in 
preparation of the final rule.

DATES: The comment period for the proposed rule published May 22, 2019, 
at 84 FR 23644, is reopened. So that we can fully consider your 
comments in our final determination, submit them on or before August 
31, 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.

ADDRESSES: Document availability: You may obtain copies of the May 22, 
2019, proposed rule and associated documents on the internet at http://

[[Page 45840]]

www.regulations.gov under Docket No. FWS-R4-ES-2018-0092 or by mail 
from the Raleigh Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Written comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0092, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit your comments by U.S. mail to: Public 
Comments Processing, Attn: FWS-R4-ES-2018-0092, 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 Information Requested, below, for more information).

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

SUPPLEMENTARY INFORMATION:

Information Requested

    We will accept written comments and information during this 
reopened comment period on our May 22, 2019, proposed listing 
determination and designation of critical habitat for the Carolina 
madtom and proposed listing determination with section 4(d) rule and 
designation of critical habitat for the Neuse River waterdog (84 FR 
23644), the revisions to the section 4(d) rule and proposed critical 
habitat designation for the Neuse River waterdog that are described in 
this document, and our draft economic analysis (DEA) of the proposed 
critical habitat designations for both species. We will consider 
information and recommendations from all interested parties. We are 
particularly interested in comments concerning:
    (1) The Carolina madtom's and Neuse River waterdog's biology, 
range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, their 
habitats, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to the species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of the species, 
including the locations of any additional populations of the species.
    (5) Information on activities that are necessary and advisable to 
provide for the conservation of the Neuse River waterdog to include in 
a 4(d) rule for the species. In particular, information concerning the 
extent to which we should include any of the section 9 prohibitions in 
the 4(d) rule or whether any other forms of take should be excepted 
from the prohibitions in the 4(d) rule.
    (6) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act, including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
that increase in threat outweighs the benefit of designation such that 
the designation of critical habitat may not be prudent.
    (7) Specific information on:
    (a) The amount and distribution of Carolina madtom or Neuse River 
waterdog habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the relevant species, should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding areas 
that may be impacted.
    (10) Information on the extent to which the description of probable 
economic impacts in the DEA is a reasonable estimate of the likely 
economic impacts.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments. Please include sufficient information with your submission 
(such as scientific journal articles or other publications) to allow us 
to verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    If you submitted comments or information on the May 22, 2019, 
proposed rule or DEA during the comment period that was open from May 
22, 2019, to July 22, 2019, please do not resubmit them. Any such 
comments are already part of the public record of this rulemaking 
proceeding, and we will fully consider them in the preparation of our 
final determination. Our final determination will take into 
consideration all written comments and any additional information we 
receive during both comment periods. The final decision may differ from 
the May 22, 2019, proposed rule, as revised by the proposals described 
in this document, based on our review of all information

[[Page 45841]]

we receive during this rulemaking proceeding.
    You may submit your comments and materials concerning the May 22, 
2019, proposed rule, this document, or the DEA by one of the methods 
listed in ADDRESSES. We request that you send comments only by the 
methods described in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment--including any personal 
identifying information--will be posted on the website. We will post 
all hardcopy comments on http://www.regulations.gov as well. If you 
submit a hardcopy comment 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the May 22, 2019, proposed rule, 
this document, and the DEA, will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0092, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Raleigh Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). You may obtain copies of the May 22, 
2019, proposed rule, this document, and the DEA on the internet at 
http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0092, or by 
mail from the Raleigh Ecological Services Field 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 within 15 days after 
the date of publication of this proposed rule in the Federal Register 
(see DATES, above). 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. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that a species is 
threatened instead of endangered (or vice versa), or we may conclude 
that a species does not warrant listing as either an endangered species 
or a threatened species. Such final decisions would: (1) Be based on 
the best scientific and commercial data available after considering all 
of the relevant factors; (2) rely only on factors authorized by 
statute; and (3) articulate a rational connection between the facts 
found and the conclusions made, including why we changed our 
conclusion.

Background

    The purpose of this document is to discuss only those topics 
directly relevant to the revised proposed section 4(d) rule language 
and the designation of critical habitat for the Neuse River waterdog. 
For more information on the Carolina madtom and the Neuse River 
waterdog, their habitats, and previous Federal actions concerning 
either species, refer to the proposed rule published in the Federal 
Register on May 22, 2019 (84 FR 23644).
    In our May 22, 2019, proposed rule, we proposed to list the Neuse 
River waterdog as a threatened species with a section 4(d) rule, 
including exceptions for species restoration efforts by State wildlife 
agencies, channel restoration projects, bank stabilization projects, 
and silvicultural practices and forest management activities. That rule 
also proposed to designate critical habitat in 16 units encompassing 
approximately 738 stream miles (1,188 kilometers) in the Tar and Neuse 
river basins in North Carolina. In addition, we announced the 
availability of a DEA of the proposed critical habitat designation. We 
accepted comments on the proposal and DEA for 60 days, ending July 22, 
2019.
    Based on information we received during the public comment period, 
we propose to revise the section 4(d) rule and critical habitat 
designation for Neuse River waterdog, and we are therefore reopening 
the comment period for 30 days to allow the public additional time to 
submit comments on both the May 22, 2019, proposed rule, as well as the 
revisions described in this document.

New Information and Revisions to Previously Proposed Section 4(d) Rule

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the ``Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean ``the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to [the Act] are no longer necessary.'' The second sentence of section 
4(d) of the Act states that the Secretary ``may by regulation prohibit 
with respect to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the 
case of plants.'' Thus, section 4(d) provides the Secretary with wide 
latitude of discretion to select and promulgate appropriate regulations 
tailored to the specific conservation needs of the threatened species. 
The second sentence grants particularly broad discretion to the Service 
when adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or included a 
limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 
2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental 
Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 
5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not 
address all of the threats a species faces (see State of Louisiana v. 
Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him with regard to the permitted activities for those species. He 
may, for example, permit taking, but not importation of such species, 
or he may choose to forbid both taking and importation but allow the 
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st 
Sess. 1973).
    Exercising its authority under section 4(d), the Service has 
developed a species-specific proposed rule that is designed to address 
the Neuse River waterdog's specific threats and conservation needs. 
Although the

[[Page 45842]]

statute does not require the Service to make a ``necessary and 
advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this rule as a whole 
satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the Neuse River waterdog. The proposed 4(d) rule would 
promote conservation of the Neuse River waterdog by encouraging 
management of the landscape in ways that meet both land management 
considerations and the conservation needs of the Neuse River waterdog. 
It would be one of the tools that the Service would use to promote the 
conservation of the Neuse River waterdog. It would apply only if and 
when the Service makes final the listing of the Neuse River waterdog as 
a threatened species.
    As discussed under the May 22, 2019, proposed rule's Summary of 
Biological Status and Threats (84 FR 23644, pp. 84 FR 23646-23652), 
declines in water quality, loss of stream flow, riparian and instream 
fragmentation, and deterioration of instream habitats are affecting the 
status of the Neuse River waterdog. These threats, which are expected 
to be exacerbated by continued urbanization and the effects of climate 
change, were central to our assessment of the future viability of the 
Neuse River waterdog. Therefore, we propose to prohibit actions that 
result in the incidental take of Neuse River waterdog by altering or 
degrading the habitat. Regulating incidental take resulting from these 
activities would help preserve the species' remaining populations, slow 
its rate of decline, and decrease synergistic, negative effects from 
other stressors.
    This 4(d) rule would provide for the conservation of the Neuse 
River waterdog by prohibiting the following activities, except as 
otherwise authorized or permitted: Importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
incidental and/or intentional take would help preserve the species' 
remaining populations, slow their rate of decline, and decrease 
synergistic, negative effects from other stressors. Therefore, we 
proposed to prohibit intentional take of the Neuse River waterdog, 
including, but not limited to, capturing, handling, trapping, 
collecting, or other activities. In this document, we propose to change 
the way in which the provisions of the 4(d) rule for the Neuse River 
waterdog would appear in 50 CFR 17.43, and we would no longer refer to 
the prohibitions set forth at 50 CFR 17.31(a). Instead, we detail the 
prohibitions set forth at 50 CFR 17.21, which apply to endangered 
species. However, the substance of the prohibitions, and exceptions to 
those prohibitions, in the proposed 4(d) rule for the Neuse River 
waterdog have not changed. As we stated in the May 22, 2019, proposed 
rule, the species needs active conservation to improve the quality of 
its habitat. By excepting some of the general prohibitions of 50 CFR 
17.21, these excepted actions can encourage cooperation by landowners 
and other affected parties in implementing conservation measures. This 
would allow use of the land while at the same time ensuring the 
protection of suitable habitat and minimizing impact on the species.
    During the comment period on the May 22, 2019, proposed rule, we 
received numerous comments from the public on several of the exceptions 
to the prohibitions in the proposed 4(d) rule. As a result of these 
comments, we retain the four exceptions, and propose to revise three of 
them. Below, we describe the four exceptions, the comments we received, 
and their proposed revisions, if any.
    The first exception, for incidental take resulting from species 
restoration efforts by State wildlife agencies, including collection of 
broodstock, tissue collection for genetic analysis, captive 
propagation, and subsequent stocking into currently occupied and 
unoccupied areas within the historical range of the species, remains 
unchanged from what we proposed on May 22, 2019 (84 FR 23644, see pp. 
84 FR 23655, 23670).
    The second exception, for incidental take resulting from channel 
restoration projects, retains all of the language from the May 22, 
2019, proposed rule for creation of natural, physically stable, 
ecologically functioning streams that are reconnected with their 
groundwater aquifer (84 FR 23644, see pp. 84 FR 23655, 23670). However, 
we propose to add language that would require surveys for and 
relocation of Neuse River waterdogs observed prior to commencement of 
restoration action.
    The third exception, for incidental take resulting from bank 
stabilization projects, remains largely unchanged from what we proposed 
on May 22, 2019 (84 FR 23644, see pp. 84 FR 23655, 23671), except that 
we propose to add a requirement that appropriate ``native'' vegetation, 
including woody species appropriate for the region and habitat, be used 
for stabilization.
    During the public comment period, the Service received several 
comments on the fourth exception for incidental take resulting from 
silvicultural practices and forest management activities (84 FR 23644, 
see pp. 84 FR 23655-23656, 23671), including seeking further 
clarification of the meaning of ``highest standard'' best management 
practices (BMPs). Therefore, to address any uncertainty regarding which 
silvicultural and forest management BMPs will satisfy this exception 
for incidental take resulting from silvicultural practices and forest 
management activities, we propose to revise our section 4(d) language 
to clarify that the BMPs must result in protection of the habitat 
features that provide for the breeding, feeding, sheltering, and 
dispersal needs of the Neuse River waterdog. Specifically concerning 
streamside management zones (SMZs), we propose to revise the proposed 
4(d) rule to provide details about SMZ widths that would be protective 
of the habitat for the species, similar to those more substantial BMPs 
considered for ``special/sensitive'' streams that are designated 
``trout waters'' and already implemented by the North Carolina forestry 
program in the Neuse and Tar River basins (North Carolina Forest 
Service (NCFS) 2006, p. 42). SMZs for waterbodies that are occupied by 
the Neuse River waterdog are intended to be similar to trout water 
buffers, as described by the North Carolina Department of Environmental 
Quality's Environmental Management Commission (North Carolina General 
Statutes 113A-57), and to protect the species' life-history 
requirements, as documented in the species status assessment (SSA) for 
the Neuse River waterdog (USFWS 2019, pp. 5-11). In waterbodies that 
support listed aquatic species, a wider SMZ is more effective at 
reducing sedimentation, maintaining lower water temperatures through 
shading, and introducing food (such as leaves and insects) into the 
food chain (VADF 2011, p. 37). Ninety percent of the food in forested 
streams comes from bordering vegetation (NCWRC 2002, p. 6; USFWS 2006, 
p. 6; Stewart et al. 2000, p. 210; USFWS 2018, p. 10). Neuse River 
waterdogs require cool,

[[Page 45843]]

well-oxygenated water, and a clean stream bottom (USFWS 2018, p. 10). A 
lack of these features limits the number of waterdogs a stream can 
support. Aquatic habitat and suitable water temperature can be 
maintained even during logging operations when streamside vegetation is 
left intact (VADF 2011, p. 37).
    In addition, we propose to revise the 4(d) rule to provide details 
on how access roads, skid trails, and crossings can be used in a way 
that would be most protective of the habitat by reducing sedimentation 
(NCFS 2018, entire). Highly turbid, silted stream water can clog the 
external gills of waterdogs, and can also decrease the stream's insect 
population, an important source of food (USFWS 2018, p. 8). 
Accordingly, we have clarified the intent of the fourth exception, for 
incidental take resulting from silviculture practices and forest 
management activities, to those practices and activities that implement 
State-approved best management practices (BMPs), which include the 
following specifications for streamside management zones (SMZs), stream 
crossings, and access roads:
    1. A two-zoned SMZ is established and maintained along each side of 
the margins of intermittent streams, perennial streams, and perennial 
waterbodies (see table for example of current specifications based on 
slope similar to trout waters (VADF 2011, p. 15)). The SMZ is measured 
from bankfull (i.e., the top of the stream bank on both sides), and is 
expected to confine visible sediment resulting from accelerated 
erosion.

           Table 1--Streamside Management Zone (SMZ) for Waterbodies Occupied by Neuse River Waterdog
----------------------------------------------------------------------------------------------------------------
                                                                                      Zone 2
                                                                    Zone 1 (no      (selective       Total SMZ
                                                                     touch/no         harvest          width
               Percent slope of adjacent lands (%)                   harvest;        allowed;      (measured in
                                                                    measured in     measured in        feet)
                                                                       feet)           feet)
----------------------------------------------------------------------------------------------------------------
0-10............................................................              50              16              66
11-20...........................................................              50              25              75
21-45...........................................................              50              50             100
46+.............................................................              50              70             120
----------------------------------------------------------------------------------------------------------------

    2. Access roads and skid trails that cross an intermittent stream, 
a perennial stream, or a perennial waterbody are installed using 
properly designed and constructed structures installed at right angles 
to the stream. Structures do not impede fish passage or stream flow, 
and minimize the amount of visible sediment that enters that stream or 
waterbody. Number of crossings is minimized, and stable sites for 
crossings are chosen. These crossings are installed so that:
    a. Stream flow is not obstructed or impeded;
    b. No intermittent stream channel, perennial stream channel, or 
perennial waterbody is used as an access road or skid trail;
    c. Crossings are provided with effective structures or native 
ground cover to protect the stream banks and stream channel from 
accelerated erosion;
    d. Crossings have sufficient water control devices to collect and 
divert surface flow from the access road or skid trail into undisturbed 
areas or other control structures to restrain accelerated erosion and 
prevent visible sediment from entering intermittent streams, perennial 
streams, and perennial waterbodies; and
    e. Native ground cover, or best management practices, that prevents 
visible sediment from entering intermittent streams, perennial streams, 
and perennial waterbodies is provided within 10 working days of initial 
disturbance and is maintained until the site is permanently stabilized.
    3. All access roads and skid trails are located outside of SMZs 
unless no other alternative exists.
    These State-approved forestry BMPs are upheld by North Carolina's 
Forest Practice Guidelines (FPGs) related to water quality standards 
and the Sustainable Forestry Initiative/Forest Stewardship Council/
American Tree Farm System certification standards for both forest 
management and responsible fiber sourcing, and are publicly available 
on the websites for these organizations, as follows:

 https://www.stateforesters.org/bmps/
 https://www.ncforestservice.gov/publications/Forestry%20Leaflets/WQ01.pdf
 https://www.sfiprogram.org/wp-content/uploads/2015_2019StandardsandRulesSection2Oct2015.pdf
 https://us.fsc.org/download.fsc-us-forest-management-standard-v1-0.95.htm
 https://www.treefarmsystem.org/certification-american-tree-farm-standards

    We reiterate that these actions and activities may have some 
minimal level of take of the Neuse River waterdog, but are unlikely to 
negatively impact the species' conservation and recovery efforts. To 
the contrary, we expect they would have a net beneficial effect on the 
species. Across the species' range, instream habitats have been 
degraded physically by sedimentation and by direct channel disturbance. 
The activities in the proposed 4(d) rule would correct some of these 
problems, creating more favorable habitat conditions for the species.
    As we already stated in the May 22, 2019, proposed rule, the 
proposed 4(d) rule would allow the issuance of permits to carry out 
otherwise prohibited activities, including those described above, 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, for economic hardship, for zoological exhibition, for 
educational purposes, for incidental taking, or for special purposes 
consistent with the purposes of the Act. There are also certain 
statutory exemptions from the prohibitions, which are found in sections 
9 and 10 of the Act.
    The Service recognizes State natural resource agencies as essential 
partners in the conservation of listed species. State agencies often 
possess scientific data and valuable expertise on the status and 
distribution of endangered, threatened, and candidate species of 
wildlife and plants. State agencies, because of their authorities and 
their close working relationships with local governments and 
landowners, are in a unique position to assist the Services in 
implementing all aspects of the Act. In this regard, section 6 of the 
Act provides

[[Page 45844]]

that the Services shall cooperate to the maximum extent practicable 
with the States in carrying out programs authorized by the Act. 
Therefore, any qualified employee or agent of a State conservation 
agency that is a party to a cooperative agreement with the Service in 
accordance with section 6(c) of the Act, who is designated by his or 
her agency for such purposes, would be able to conduct activities 
designed to conserve the Neuse River waterdog that may result in 
otherwise prohibited take without additional authorization.
    Finally, the proposed 4(d) rule would allow take of the Neuse River 
waterdog without a permit by any employee or agent of the Service or a 
State conservation agency who is designated by his/her agency for such 
purposes and when acting in the course of his official duties if such 
action is necessary to aid a sick, injured, or orphaned specimen; to 
dispose of a dead specimen; or to salvage a dead specimen which may be 
useful for scientific study. In addition, Federal and State law 
enforcement officers may possess, deliver, carry, transport, or ship a 
Neuse River waterdog taken in violation of the Act as necessary.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of the Neuse River waterdog. However, interagency 
cooperation may be further streamlined through planned programmatic 
consultations for the species between Federal agencies and the Service, 
where appropriate. We ask the public, particularly State agencies and 
other interested stakeholders that may be affected by the proposed 4(d) 
rule, to provide comments and suggestions regarding additional guidance 
and methods that the Service could provide or use, respectively, to 
streamline the implementation of this proposed 4(d) rule (see 
Information Requested, above).

New Information and Revisions to Proposed Critical Habitat for Neuse 
River Waterdog

    During the public comment period, we received 83 letters containing 
26 comments on the proposed critical habitat designation, with 7 
substantive comments specific to the proposed designation for Neuse 
River waterdog. The comments from the North Carolina Wildlife Resources 
Commission (NCWRC) and one private consultant provided new observation 
data collected since the November 2018 version of the SSA report, 
including updated 2018 and 2019 survey records in Middle Creek (Neuse 
River Basin, Johnston County, North Carolina), Tuckahoe Swamp (Trent 
River Basin, Jones County, North Carolina), Tar River (Tar River Basin, 
Franklin and Granville Counties, North Carolina), Fishing Creek (Tar 
River Basin, Nash County, North Carolina), and Bens Creek (Fishing 
Creek Subbasin, Warren County, North Carolina).
    Based on the new data, we propose certain revisions to the critical 
habitat designation we proposed on May 22, 2019, for the Neuse River 
waterdog. Specifically, we propose to add two units based on new 
observation data of the species provided by NCWRC in locations within 
the historical range; new Unit 3 is 2 miles (3.2 km) of Bens Creek in 
the Tar River Basin in Warren County, North Carolina, and new Unit 18 
is 2 miles (3.2 km) of Tuckahoe Swamp in the Trent River Basin in Jones 
County, North Carolina. We also propose to revise Unit 1 to add 3.7 
river miles (6 km) of the Upper Tar River based on a 2018 observation 
provided by NCWRC of Neuse River waterdog. We propose to revise Unit 4 
(previously Unit 3) to add 20 miles (32.3 km) of Fishing Creek based on 
a 2019 observation provided by NCWRC of Neuse River waterdog. We 
propose to revise Unit 6 (previously Unit 5) to add 11 miles (17.8 km) 
of the upper reach of the Tar River based on a 2019 observation by a 
permitted private consultant of Neuse River waterdog. We propose to 
revise Unit 10 (previously Unit 9) to add 23.2 miles (37.4 km) of 
Middle Creek based on two 2018 observations provided by NCWRC of Neuse 
River waterdog. We propose to revise the downstream portion of Unit 17 
(previously Unit 16) to remove 1.1 miles (2 km) of the Trent River that 
borders the U.S. Department of Defense's Marine Corps Air Station 
Cherry Point Oak Grove Outlying Landing Field (OLF) based on the Neuse 
River waterdog being included in the Station's integrated natural 
resources management plan.
    All of the additional stream miles are currently occupied, contain 
most or all of the physical or biological features to support life-
history functions essential to the conservation of the Neuse River 
waterdog, and may require special management considerations or 
protection from threats as described in the May 22, 2019, proposed rule 
(84 FR 23644). Because of these revisions, the numbering for most of 
the critical habitat units has changed from the May 22, 2019, proposed 
rule, although the names and descriptions remain the same.
    We also used a higher resolution National Hydrography Dataset GIS 
data layer, which resulted in minor changes to the stream mileage 
numbers. Most of the changes result in an increase or decrease of less 
than 3 mi (4.8 km) to proposed critical habitat in any unit, with the 
greatest change being an addition of 4.2 mi (6.8 km) to Unit 5 
(previously Unit 4). The exception is Unit 17 (previously Unit 16), 
which had an error in the proposed stream mileage; to correct that 
error, in this document, we reduce the proposed critical habitat in 
that unit by approximately 28.5 mi (45.6 km).
    The DEA for the proposed critical habitat designation remains the 
same; the counties containing the new units are included in the DEA's 
analysis that uses the consultation efforts occurring in counties, 
which overlap with the May 22, 2019, proposed designation for Neuse 
River waterdog critical habitat, as the basis of determining 
incremental costs.

Revised Proposed Critical Habitat Designation

    In total, we now propose to designate approximately 779 miles 
(1,254 kilometers) in 18 units in North Carolina as critical habitat 
for the Neuse River waterdog. The proposed critical habitat areas 
described below constitute our best assessment, at this time, of areas 
that meet the definition of critical habitat, and all units are 
considered currently occupied by the species. Those 18 units are: (1) 
Upper Tar River, (2) Upper Fishing Creek, (3) Bens Creek, (4) Fishing 
Creek Subbasin, (5) Sandy/Swift Creek, (6) Middle Tar River Subbasin, 
(7) Lower Tar River Subbasin, (8) Eno River, (9) Flat River, (10) 
Middle Creek, (11) Swift Creek, (12) Little River, (13) Mill Creek, 
(14) Middle Neuse River, (15) Contentnea Creek/Lower Neuse River 
Subbasin, (16) Swift Creek (Lower Neuse), (17) Trent River, and (18) 
Tuckahoe Swamp. Table 2 shows the name, land ownership of the riparian 
areas surrounding the units, and approximate river miles of the 
proposed designated units for the Neuse River waterdog. Where 
appropriate, Table 2 also notes the previous number for units for which 
the numbering has changed.

[[Page 45845]]



                  Table 2--Revised Proposed Critical Habitat Units for the Neuse River Waterdog
----------------------------------------------------------------------------------------------------------------
                                                          River miles                            Previous unit
      Critical habitat unit       Riparian ownership     (kilometers)      Proposed changes        numbering
----------------------------------------------------------------------------------------------------------------
Unit 1. TAR1--Upper Tar River...  Private; Easements  12.3 (19.8).......  +3.7 mi (6 km)....  Unit 1: TAR1.
Unit 2. TAR2--Upper Fishing       Private; Easements  10.5 (17).........  none..............  Unit 2: TAR2.
 Creek.
Unit 3. TAR3--Bens Creek........  Private...........  2 (3.2)...........  New...............  New Unit.
Unit 4. TAR4a--Fishing Creek      Private;            82.8 (133.3)......  +20 mi (32.3 km)..  Unit 3: TAR3a.
 Subbasin.                         Easements; State.
Unit 5. TAR4b--Sandy/Swift Creek  Private;            72.5 (116.8)......  none..............  Unit 4: TAR3b.
                                   Easements; State.
Unit 6. TAR4c--Middle Tar River   Private;            111 (179).........  +11 mi (17.8 km)..  Unit 5: TAR3c.
 Subbasin.                         Easements; State.
Unit 7. TAR4d--Lower Tar River    Private;            59.9 (96.3).......  none..............  Unit 6: TAR3d.
 Subbasin.                         Easements; State.
Unit 8. NR1--Eno River..........  Private;            43.9 (70.6).......  none..............  Unit 7: NR1.
                                   Easements; State.
Unit 9. NR2--Flat River.........  Private; Easements  15.2 (24.5).......  none..............  Unit 8: NR2.
Unit 10. NR3--Middle Creek......  Private;            30.8 (49.6).......  +23.2 mi (37.4 km)  Unit 9: NR3.
                                   Easements; Local.
Unit 11. NR4--Swift Creek.......  Private...........  24 (38.6).........  none..............  Unit 10: NR4.
Unit 12. NR5a--Little River.....  Private; Easements  90.8 (146.1)......  none..............  Unit 11: NR5a.
Unit 13. NR5b--Mill Creek.......  Private; Easements  20.8 (33.5).......  none..............  Unit 12: NR5b.
Unit 14. NR5c--Middle Neuse       Private; State;     43.2 (69.5).......  none..............  Unit 13: NR5c.
 River.                            Easements.
Unit 15. NR6--Contentnea Creek/   Private; Easements  114.8 (184.8).....  none..............  Unit 14: NR6.
 Lower Neuse River Subbasin.
Unit 16. NR7--Swift Creek (Lower  Private; Easements  10.3 (16.5).......  none..............  Unit 15: NR7.
 Neuse).
Unit 17. TR1--Trent River.......  Private...........  32.5 (52.4).......  -1.1 mi (2 km)....  Unit 16: TR1.
Unit 18. TR2--Tuckahoe Swamp....  Private...........  2 (3.2)...........  New...............  New Unit.
                                                     -----------------------------------------------------------
    Total.......................  ..................  779 (1,254).......  +41 mi (66 km)....
----------------------------------------------------------------------------------------------------------------
Note: Distances may not sum due to rounding.

    The revised 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. For 
units that are unchanged from the May 22, 2019, proposed rule, please 
refer to information at http://www.regulations.gov under Docket No. 
FWS-R4-ES-2018-0092. We include more detailed information on the 
boundaries of the revised proposed critical habitat designation in the 
discussion of new and revised proposed individual units below.

Unit 1: TAR1--Upper Tar River

    Revised Unit 1 consists of 12.3 river miles (19.8 river km) of the 
Tar River in Granville County from approximately SR1004 (Old NC 75) 
downstream to SR1622 (Cannady's Mill Road). We propose to revise Unit 1 
to add 3.7 river miles (6 km) of the Upper Tar River based on a 2018 
observation of Neuse River waterdog provided by NCWRC. The riparian 
land adjacent to this unit is primarily privately owned (80 percent), 
with several conservation parcels or easements (20 percent). The unit 
currently supports all breeding, feeding, and sheltering needs for the 
species.
    Special management considerations or protection may be required to 
address excess sediment and pollutants that enter the creek and serve 
as indicators of other forms of pollution such as bacteria and toxins, 
reducing water quality for the species. Sources of these types of 
pollution are likely agricultural and silvicultural runoff.

Unit 3: TAR3--Bens Creek

    This is a new unit. Unit 3 consists of 2 river miles (3.2 river km) 
of Bens Creek in Warren County, North Carolina. The proposed designated 
area begins approximately one mile upstream and ends approximately one 
mile downstream of SR1509 (Odell-Littleton Road). We propose the 
addition of this unit based on a 2019 observation of Neuse River 
waterdog provided by NCWRC. The riparian areas on either side of the 
river are privately owned. The unit currently supports all breeding, 
feeding, and sheltering needs for the species.
    Special management considerations or protection may be required to 
address excess sediment and pollutants that enter the creek and serve 
as indicators of other forms of pollution such as bacteria and toxins, 
reducing water quality for the species. Sources of these types of 
pollution are likely agricultural and silvicultural runoff.

Unit 4: TAR4a--Fishing Creek Subbasin

    Revised Unit 4 (previously Unit 3) consists of 82.8 river miles 
(133.3 river km) of lower Little Fishing Creek approximately 1.6 miles 
(2.6 km) upstream of SR1214 (Silvertown Rd) downstream to the 
confluence with Fishing Creek, and including the mainstem of Fishing 
Creek from the Warren/Halifax County line to the confluence with the 
Tar River in Halifax, Nash, and Edgecombe Counties. We propose to 
revise Unit 4 (previously Unit 3) to add 20 miles (32.3 km) of Fishing 
Creek based on a 2019 observation of Neuse River waterdog provided by 
NCWRC. The riparian land adjacent to the unit includes private land (86 
percent), several conservation parcels (6 percent), and State game 
lands (8 percent). The unit currently supports all breeding, feeding, 
and sheltering needs for the species.
    Special management considerations or protection may be required to 
address excess sediment and pollutants that enter the creek and serve 
as indicators of other forms of pollution such as bacteria and toxins, 
reducing water quality for the species. Sources of these types of 
pollution are likely agricultural and silvicultural runoff.

[[Page 45846]]

Unit 6: TAR4c--Middle Tar River Subbasin

    Revised Unit 6 (previously Unit 5) consists of 111 river miles (179 
river km) of the Middle Tar River from upstream of Highway 401 
downstream to the confluence with Fishing Creek, including Stony Creek 
below SR1300 (Boddies' Millpond Rd), downstream to the confluence with 
the Tar River. This unit is located in Franklin, Nash, and Edgecombe 
Counties. We propose to revise Unit 6 (previously Unit 5) to add 11 
miles (17.8 km) of the upper reach of the Tar River based on a 2019 
observation of Neuse River waterdog provided by a permitted private 
consultant. The riparian land adjacent to this unit is nearly all 
private lands (99 percent), with less than 1 percent conservation 
parcels, local parks, and a research station. The unit currently 
supports all breeding, feeding, and sheltering needs for the species.
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Excessive amounts of 
nitrogen and phosphorus run off the land or are discharged into the 
waters, causing too much growth of microscopic or macroscopic 
vegetation and leading to extremely low levels of dissolved oxygen. As 
a result, there are six ``impaired'' stream reaches (as identified on 
the State's Clean Water Act section 303d list) totaling approximately 
32 miles in the unit. Expansion or addition of new wastewater 
discharges are also a threat to habitat in this unit. Special 
management focused on use of agricultural BMPs, implementation of 
highest levels of treatment of wastewater practicable, maintenance of 
forested buffers, and connection of protected riparian corridors will 
benefit habitat for the species in this unit.

Unit 10: NR3--Middle Creek

    Revised Unit 10 (previously Unit 9) consists of 30.8 river miles 
(49.6 river km) of Middle Creek from Southeast Regional Park downstream 
to the confluence with Swift Creek in Johnston County, North Carolina. 
We propose to revise Unit 10 (previously Unit 9) to add 23.2 miles 
(37.4 km) of Middle Creek based on two 2018 observations of Neuse River 
waterdog provided by NCWRC. The riparian land adjacent to this unit is 
predominantly privately owned (91 percent) with a few conservation 
parcels (9 percent). The unit currently supports all breeding, feeding, 
and sheltering needs for the species. Special management considerations 
or protection may be required within this unit to address threats, 
particularly from encroaching urbanization and pollution from 
agricultural and silvicultural runoff.

Unit 17: TR1--Trent River

    Revised Unit 17 (previously Unit 16) consists of 32.5 river miles 
(52.4 river km) of Beaver Creek from SR1316 (McDaniel Fork Rd) to the 
confluence with the Trent River, and Trent River from the confluence 
with Poplar Branch downstream to the SR1121 (Oak Grove Rd) crossing at 
the Marine Corps Cherry Point property, in Jones County. This unit was 
decreased to not include land owned by the Marine Corps at its Air 
Station (MCAS) Cherry Point Oak Grove Outlying Landing Field. The 
base's integrated natural resources management plan includes 
implementing ecosystem management practices that support the 
conservation and management of at-risk herpetofauna species, including 
Neuse River waterdog, known to occur at MCAS Cherry Point (Tetra Tech 
2012, p.C-10). The riparian land adjacent to this unit is privately 
owned. The unit currently supports all breeding, feeding, and 
sheltering needs for the species.
    Special management considerations or protection may be required to 
address excess sediment and pollutants that enter the creek and serve 
as indicators of other forms of pollution such as bacteria and toxins, 
reducing water quality for the species. Sources of these types of 
pollution are likely agricultural and silvicultural runoff.

Unit 18: TR2--Tuckahoe Swamp

    This is a new unit. Unit 18 consists of 2 river miles (3.2 river 
km) of Tuckahoe Swamp in Jones County, North Carolina. The proposed 
designated area begins upstream of SR1142 (Weyerhaeuser Road) to the 
confluence with the Trent River. The riparian areas on either side of 
the river are privately owned. The unit currently supports all 
breeding, feeding, and sheltering needs for the species.
    Special management considerations or protection may be required to 
address excess sediment and pollutants that enter the creek and serve 
as indicators of other forms of pollution such as bacteria and toxins, 
reducing water quality for the species. Sources of these types of 
pollution are likely agricultural and silvicultural runoff.

References Cited

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

Authors

    The primary authors of this document are the staff members of the 
U.S. Fish and Wildlife Service Species Assessment Team and Raleigh 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 84 FR 23644 (May 22, 2019) 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.  17.43 by adding a paragraph (f) to read as follows:


Sec.  17.43   Special rules--amphibians.

* * * * *
    (f) Neuse River waterdog (Necturus lewisi).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the Neuse River waterdog. Except as 
provided in paragraph (a)(2) of this section and Sec.  17.4, it is 
unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, to solicit another to commit, 
or cause to be committed, any of the following acts in regard to this 
species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set

[[Page 45847]]

forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to the following activities:
    (A) Species restoration efforts by State wildlife agencies, 
including collection of broodstock, tissue collection for genetic 
analysis, captive propagation, and subsequent stocking into currently 
occupied and unoccupied areas within the historical range of the 
species.
    (B) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) that are reconnected with their groundwater aquifers. These 
projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; a reconnection of surface and 
groundwater systems, resulting in perennial flows in the channel; 
riffles and pools comprised of existing soil, rock, and wood instead of 
large imported materials; low compaction of soils within adjacent 
riparian areas; and inclusion of riparian wetlands. Second- to third-
order, headwater streams reconstructed in this way would offer suitable 
habitats for the Neuse River waterdog and contain stable channel 
features, such as pools, glides, runs, and riffles, which could be used 
by the species for spawning, rearing, growth, feeding, migration, and 
other normal behaviors. Prior to restoration action, surveys to 
determine presence of Neuse River waterdog must be performed, and if 
located, waterdogs must be relocated prior to project implementation.
    (C) Bank stabilization projects that use bioengineering methods to 
replace pre-existing, bare, eroding stream banks with vegetated, stable 
stream banks, thereby reducing bank erosion and instream sedimentation 
and improving habitat conditions for the species. Following these 
bioengineering methods, stream banks may be stabilized using native 
species live stakes (live, vegetative cuttings inserted or tamped into 
the ground in a manner that allows the stake to take root and grow), 
native species live fascines (live branch cuttings, usually willows, 
bound together into long, cigar shaped bundles), or native species 
brush layering (cuttings or branches of easily rooted tree species 
layered between successive lifts of soil fill). Native species 
vegetation includes woody species appropriate for the region and 
habitat conditions. These methods will not include the sole use of 
quarried rock (rip-rap) or the use of rock baskets or gabion 
structures.
    (D) Silviculture practices and forest management activities that 
implement State-approved best management practices for sensitive areas, 
including a two-zoned streamside management zone (SMZ) (Zone 1 width is 
a 50-foot minimum with no harvest allowed; Zone 2 width is variable 
depending on slope and includes selective harvest) established and 
maintained along each side of the margins of intermittent streams, 
perennial streams, and perennial waterbodies. The SMZ is measured from 
bankfull (i.e., the top of the stream bank), and will confine visible 
sediment resulting from accelerated erosion. Access roads and skid 
trails that cross an intermittent stream, a perennial stream, or a 
perennial waterbody will be installed using properly designed and 
constructed structures installed at right angles to the stream, will 
not impede fish passage or stream flow, and will minimize the amount of 
visible sediment that enters that stream or waterbody. The number of 
crossings will be minimized, stable sites for crossings will be chosen, 
and access roads and skid trails will be located outside of SMZs unless 
no other alternative exists.
0
3. Amend Sec.  17.95(d), in the entry proposed at 84 FR 23644 for 
``Neuse River waterdog (Necturus lewisi),'' by revising paragraphs (5) 
through (16) and by adding paragraphs (17) and (18) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
Neuse River Waterdog (Necurus lewisi)
* * * * *
    (5) Note: Index map follows:
BILLING CODE 4333-15-P

[[Page 45848]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.009

    (6) Unit 1: TAR1--Upper Tar River, Granville County, North 
Carolina.
    (i) This unit consists of 12.3 river miles (19.8 river kilometers) 
of occupied habitat in the Upper Tar River from approximately SR1004 
(Old NC 75) downstream to SR1622 (Cannady's Mill Road). Unit 1 includes 
stream habitat up to bankfull height.
    (ii) Map of Unit 1 follows:

[[Page 45849]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.010

    (7) Unit 2: TAR2--Upper Fishing Creek, Warren County, North 
Carolina.
    (i) This unit consists of 10.5 river miles (17.0 river kilometers) 
of habitat in Upper Fishing Creek from SR1118 (No Bottom Drive) 
downstream to NC58. Unit 2 includes stream habitat up to bankfull 
height.
    (ii) Map of Unit 2 follows:

[[Page 45850]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.011

    (8) Unit 3: TAR3--Bens Creek, Warren County, North Carolina.
    (i) This unit consists of 2 river miles (3.2 river km) of Bens 
Creek beginning approximately one mile upstream and ending 
approximately one mile downstream of SR1509 (Odell-Littleton Road). 
Unit 3 includes stream habitat up to bankfull height.
    (ii) Map of Unit 3 follows:

[[Page 45851]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.012

    (9) Unit 4: TAR4a--Fishing Creek Subbasin, Edgecombe, Halifax, 
Nash, and Warren Counties, North Carolina; Unit 5: TAR4b--Sandy/Swift 
Creek, Edgecombe, Franklin, Nash, and Warren Counties, North Carolina; 
Unit 6: TAR4c--Middle Tar River Subbasin, Edgecombe, Franklin, and Nash 
Counties, North Carolina; and Unit 7: TAR4d--Lower Tar River Subbasin, 
Edgecombe and Pitt Counties, North Carolina.
    (i) Units 4, 5, 6, and 7 include stream habitat up to bankfull 
height.
    (ii) Unit 4 consists of 82.8 river miles (133.3 river km) of lower 
Little Fishing Creek approximately 1.6 miles (2.6 km) upstream of 
SR1214 (Silvertown Rd) downstream to the confluence with Fishing Creek, 
and including the mainstem of Fishing Creek from the Warren/Halifax 
County line to the confluence with the Tar River in Halifax, Nash, and 
Edgecombe Counties.
    (iii) Unit 5 consists of 72.5 river miles (116.8 river kilometers) 
of habitat in Sandy Creek downstream of SR 1451 (Leonard Road) to the 
confluence with the Tar River, including Red Bud Creek downstream of 
the Franklin/Nash county line to the confluence with Swift Creek.
    (iv) Unit 6 consists of 111 river miles (179 river kilometers) of 
the Middle Tar River from upstream of Highway 401 dowstream to the 
confluence with Fishing Creek, including Stony Creek below SR1300 
(Boddies' Millpond Rd), downstream to the confluence with the Tar 
River.
    (v) Unit 7 consists of 59.9 river miles (96.3 river kilometers) in 
the Lower Tar River Subbasin from the confluence with Fishing Creek 
downstream to the confluence with Barber Creek near SR1533 (Port 
Terminal Road). This unit includes portions of Town Creek below NC111 
to the confluence with the Tar River, Otter Creek below SR1251 to the 
confluence with the Tar River, and Tyson Creek below SR1258 to the 
confluence with the Tar River.
    (vi) Map of Units 4, 5, 6, and 7 follows:

[[Page 45852]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.013

    (10) Unit 8: NR1--Eno River, Durham and Orange Counties, North 
Carolina.
    (i) This unit consists of 43.9 river miles (70.6 river kilometers) 
of habitat in the Eno River from NC86 downstream to the inundated 
portion of Falls Lake. Unit 7 includes stream habitat up to bankfull 
height.
    (ii) Map of Unit 8 follows:

[[Page 45853]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.014

    (11) Unit 9: NR2--Flat River, Durham and Person Counties, North 
Carolina.
    (i) This unit consists of 15.2 river miles (24.5 river kilometers) 
of habitat in the Flat River from SR1739 (Harris Mill Road) downstream 
to the inundated portion of Falls Lake. Unit 8 includes stream habitat 
up to bankfull height.
    (ii) Map of Unit 9 follows:

[[Page 45854]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.015

    (12) Unit 10: NR3--Middle Creek, Johnston and Wake Counties, North 
Carolina.
    (i) This unit consists of 30.8 river miles (49.6 river km) of 
Middle Creek from Southeast Regional Park downstream to the confluence 
with Swift Creek in Johnston County, North Carolina. Unit 10 includes 
stream habitat up to bankfull height.
    (ii) Map of Unit 10 follows:

[[Page 45855]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.016

    (13) Unit 11: NR4--Swift Creek, Johnston County, North Carolina.
    (i) This unit consists of 24 river miles (38.6 river kilometers) of 
occupied habitat in Swift Creek from NC42 downstream to the confluence 
with the Neuse River. Unit 11 includes stream habitat up to bankfull 
height.
    (ii) Map of Unit 11 follows:

[[Page 45856]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.017

    (14) Unit 12: NR5a--Little River, Franklin, Johnston, Wake, and 
Wayne Counties, North Carolina; Unit 13: NR5b--Mill Creek, Johnston and 
Wayne Counties, North Carolina; and Unit 14: NR5c--Middle Neuse River, 
Wayne County, North Carolina.
    (i) Units 12, 13, and 14 include stream habitat up to bankfull 
height.
    (ii) Unit 12 consists of 90.8 river miles (146.1 river kilometers) 
of habitat in the Little River from near NC96 in Wake County downstream 
to the confluence with the Neuse River, including Buffalo Creek from 
NC39 to the confluence with the Little River.
    (iii) Unit 13 consists of 20.8 river miles (33.5 river kilometers) 
of Mill Creek from upstream of US701 downstream to the confluence with 
the Neuse River.
    (iv) Unit 14 consists of 43.2 river miles (69.5 river kilometers) 
of the Middle Neuse River from the confluence with Mill Creek 
downstream to the Wayne/Lenoir County line.
    (v) Map of Units 12, 13, and 14 follows:

[[Page 45857]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.018

    (15) Unit 15: NR6--Contentnea Creek/Lower Neuse River Subbasin, 
Craven, Greene, Lenoir, Pitt, Wayne, and Wilson Counties, North 
Carolina.
    (i) This unit consists of 114.8 river miles (184.8 river 
kilometers) of habitat in the Contentnea Creek from NC581 downstream to 
its confluence with the Neuse River, Nahunta Swamp from the Wayne/
Greene County line to the confluence with Contentnea Creek, and the 
Neuse River from the confluence with Contentnea Creek to the confluence 
with Pinetree Creek. Unit 15 includes stream habitat up to bankfull 
height.
    (ii) Map of Unit 15 follows:

[[Page 45858]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.019

    (16) Unit 16: NR7--Swift Creek, Craven County, North Carolina.
    (i) This unit consists of 10.3 river miles (16.5 river kilometers) 
of habitat in Swift Creek from SR1931 (Beaver Camp Rd) downstream to 
SR1440 (Streets Ferry Rd). Unit 16 includes stream habitat up to 
bankfull height.
    (ii) Map of Unit 16 follows:

[[Page 45859]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.020

    (17) Unit 17: TR1--Trent River, Jones County, North Carolina.
    (i) This unit consists of 32.5 river miles (52.4 river kilometers) 
of habitat in Beaver Creek from SR1316 (McDaniel Fork Rd) to the 
confluence with the Trent River, and Trent River from the confluence 
with Poplar Branch downstream to SR1121 (Oak Grove Rd) crossing at the 
Marine Corps Cherry Point property. Unit 17 includes stream habitat up 
to bankfull height.
    (ii) Map of Unit 17 follows:

[[Page 45860]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.021

    (18) Unit 18: TR2--Tuckahoe Swamp, Jones County, North Carolina.
    (i) This unit consists of 2 river miles (3.2 river km) of Tuckahoe 
Swamp in Jones County, North Carolina. Unit 18 begins upstream of 
SR1142 (Weyerhaeuser Road) to the confluence with the Trent River. Unit 
18 includes stream habitat up to bankfull height.
    (ii) Map of Unit 18 follows:

[[Page 45861]]

[GRAPHIC] [TIFF OMITTED] TP30JY20.022

* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-15347 Filed 7-29-20; 8:45 am]
BILLING CODE 4333-15-C