Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic Pigtoe, 59487-59511 [2020-19095]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 85, Number 184 (Tuesday, September 22, 2020)]
[Proposed Rules]
[Pages 59487-59511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19095]



[[Page 59487]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0046; FF09E21000 FXES11110900000 201]
RIN 1018-BD12


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

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period on our October 11, 2018, proposed rule 
to list the Atlantic pigtoe (Fusconaia masoni) as a threatened species 
with a section 4(d) rule, and to designate critical habitat for the 
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 species on 
October 11, 2018. As a result of the critical habitat revisions, we now 
propose to designate a total of 566 miles (910 kilometers) as critical 
habitat for the Atlantic pigtoe across 18 units within portions of 14 
counties in Virginia and 17 counties in North Carolina. This amounts to 
an increase of 24 miles (38 kilometers) in our proposed critical 
habitat designation for the species. We are reopening the comment 
period to allow all interested parties the opportunity to comment on 
the October 11, 2018, 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 October 11, 
2018, at 83 FR 51570 is reopened. So that we can fully consider your 
comments in our final determination, submit them on or before October 
22, 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 October 11, 
2018, proposed rule and associated documents on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2018-0046 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: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0046, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit your comments by U.S. mail to: Public 
Comments Processing, Attn: FWS-R4-ES-2018-0046, 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 https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, 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:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our October 11, 2018, proposed listing 
determination with section 4(d) rule and designation of critical 
habitat for the Atlantic pigtoe (83 FR 51570), the revisions to the 
section 4(d) rule and proposed critical habitat designation that are 
described in this document, and our draft economic assessment (DEA) of 
the proposed critical habitat designation. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The Atlantic pigtoe's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Information on activities that are necessary and advisable for 
the conservation of the Atlantic pigtoe to include in a section 4(d) 
rule for the species. In particular, we request 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 Atlantic pigtoe habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.

[[Page 59488]]

    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that may 
be impacted.
    (10) Information on the extent to which the description of probable 
economic impacts in the DEA is a reasonable estimate of the likely 
economic impacts and the description of the environmental impacts in 
the draft environmental assessment is complete and accurate.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the October 11, 2018, 
proposed rule or DEA during the comment period that was open from 
October 11, 2018, to December 10, 2018, 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 this revised proposed rule, based on our review of all 
information we receive during this rulemaking proceeding.
    You may submit your comments and materials 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 https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the website. We will post all hardcopy comments on https://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 proposed rule and DEA, will be 
available for public inspection on https://www.regulations.gov at Docket 
No. FWS-R4-ES-2018-0046, 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 proposed rule and the DEA on the internet at 
https://www.regulations.gov at Docket No. FWS-R4-ES-2018-0046, or by 
mail from the Raleigh Ecological Services Field Office.

Background

    It is our intent to discuss in this document only those topics 
directly relevant to the revised proposed section 4(d) rule and 
designation of critical habitat. For more information on the species, 
its habitat, and previous Federal actions concerning the Atlantic 
pigtoe, refer to the proposed rule published in the Federal Register on 
October 11, 2018 (83 FR 51570).
    In our October 11, 2018, proposed rule, we proposed to list the 
Atlantic pigtoe 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 542 stream miles (872 kilometers) in Craig, Botetourt, 
Fluvanna, Buckingham, Nottoway, Lunenburg, Brunswick, Dinwiddie, 
Greensville, Mecklenburg, and Halifax Counties in Virginia, and in 
Rockingham, Granville, Vance, Franklin, Nash, Halifax, Warren, 
Edgecombe, Pitt, Person, Durham, Orange, Wake, Johnston, Wilson, 
Randolph, and Montgomery Counties in North Carolina. In addition, we 
announced the availability of a DEA of the proposed critical habitat 
designation. We accepted comments on the proposed rule and DEA for 60 
days, ending December 10, 2018. Based on information we received during 
the public comment period, we propose to revise the proposed section 
4(d) rule and critical habitat designation, and are therefore reopening 
the comment period to allow the public additional time to submit 
comments on both the October 11, 2018, proposed rule, as well as the 
revisions described in this document.

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

    Section 4(d) of the Act 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 very similar statutory language 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.'' Additionally, 
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, regulations promulgated under 
section 4(d) of the Act provide the Secretary with wide latitude of 
discretion to select appropriate provisions tailored to the specific 
conservation needs of the threatened species. The statute 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 approved rules 
developed under section 4(d) that include a taking prohibition for 
threatened wildlife, or include 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 approved 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 initially 
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).
    Although the 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 is 
necessary and advisable to provide for the conservation of the Atlantic 
pigtoe. The Service proposed a species-specific 4(d) rule that is 
designed to address the Atlantic pigtoe's specific threats and

[[Page 59489]]

conservation needs. It would promote conservation of the Atlantic 
pigtoe by encouraging management of the landscape in ways that meet 
both land management considerations and meeting the conservation needs 
of the Atlantic pigtoe. It would be one of many tools that the Service 
would use to promote the conservation of the Atlantic pigtoe. It would 
apply only if and when the Service makes final the listing of the 
Atlantic pigtoe as a threatened species.
    As discussed under the October 11, 2018, proposed rule's Summary of 
Biological Status and Threats (83 FR 51570, pp. 83 FR 51572-51577), 
declines in water quality, loss of stream flow, riparian and instream 
fragmentation, and deterioration of instream habitats are affecting the 
status of the Atlantic pigtoe. 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 
Atlantic pigtoe. Therefore, we prohibit actions that result in the 
incidental take of Atlantic pigtoe 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 Atlantic 
pigtoe 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 Atlantic pigtoe, 
including, but not limited to, capturing, handling, trapping, 
collecting, or other activities. In this proposed revision, we would 
change the way in which the provisions of the 4(d) rule for the 
Atlantic pigtoe would appear in 50 CFR 17.45, and we would no longer 
refer to the prohibitions set forth at 50 CFR 17.31(a). Instead, we 
propose to refer to 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 Atlantic pigtoe have not changed. As we stated in the 
October 11, 2018, 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.
    We are retaining the exceptions to the prohibitions proposed in the 
October 11, 2018, section 4(d) rule. We believe that those actions and 
activities, while they may have some minimal level of disturbance to 
the Atlantic pigtoe, are unlikely to negatively impact the species' 
conservation and recovery efforts. The proposed exceptions to these 
prohibitions include (1) species restoration efforts by State wildlife 
agencies, (2) channel restoration projects, (3) bank stabilization 
projects, and (4) silvicultural practices and forest management 
activities.
    During the comment period on the October 11, 2018, proposed rule, 
we received numerous comments from the public and peer reviewers on 
several of the exceptions to the prohibitions in the proposed 4(d) 
rule. As a result, we retain the four exceptions but propose to revise 
some of them. Below, we describe the four exceptions and their proposed 
revisions, if any.
    The first exception for species restoration efforts by State 
wildlife agencies remains unchanged from what we proposed on October 
11, 2018 (83 FR 51570, p. 83 FR 51593), and includes 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. The 
Service recognizes our special and unique relationship with our State 
natural resource agency partners in contributing to 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 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 Atlantic 
pigtoe that may result in otherwise prohibited take for wildlife 
without additional authorization.
    We propose revisions to the second exception for channel 
restoration projects based on public comments received. This exception 
retains most of the language from the October 11, 2018, proposed rule 
for creation of natural, physically stable, ecologically functioning 
streams that are reconnected with their groundwater aquifer (83 FR 
51570, p. 83 FR 51593). Second- to third-order, headwater streams 
reconstructed in this way would offer suitable habitats for the 
Atlantic pigtoe and contain stable channel features, such as pools, 
glides, runs, and riffles, which could be used by the species and its 
host fish for spawning, rearing, growth, feeding, migration, and other 
normal behaviors. In this document, we propose to add language that 
would require surveys and relocation for Atlantic pigtoes observed 
prior to commencement of restoration action.
    The third exception for bank stabilization projects remains largely 
unchanged from what we proposed on October 11, 2018, except that we 
propose to include a requirement that appropriate ``native'' 
vegetation, including woody species appropriate for the region and 
habitat, should be used for stabilization. We propose this revision 
based on comments we received.
    During the public comment period, the Service received several 
comments on the fourth exception for silvicultural practices and forest 
management activities, including seeking further clarification of the 
meaning of ``highest standard'' best management practices (BMPs). As a 
result, we propose to revise the 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 Atlantic 
pigtoe. Specifically concerning streamside management zones (SMZs), the 
proposed 4(d) rule has been revised to provide details about SMZ widths 
that

[[Page 59490]]

would be most 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 
both Virginia and North Carolina State forestry programs (North 
Carolina Forest Service (NCFS) 2006, entire; Virginia Department of 
Forestry (VADF) 2011, entire). SMZs for waterbodies that are occupied 
by the Atlantic pigtoe are intended to be similar to the trout water 
SMZs, as described in the Virginia BMP Technical Manual (VADF 2011, p. 
37), the North Carolina Forestry BMP Manual to Protect Water Quality 
(NCFS 2006, pp. 21, 30-31), and life-history requirements as documented 
in the species status assessment (SSA) for the Atlantic pigtoe (USFWS 
2019, pp. 5-11). In waterbodies that support listed freshwater mussel 
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 2019, p. 55). Freshwater mussels require cool, 
well-oxygenated water, and a clean stream bottom (USFWS 2019, p. 11). A 
lack of these features limits the number of freshwater mussels 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). Silted stream bottoms suffocate filter-feeding 
animals and decrease the stream's insect population, an important 
source of food for host fish (VADF 2011, p. 37). Siltation also makes 
mussel and host fish reproduction difficult (USFWS 2019, pp. 29, 41, 
47, 57). Transformed juvenile mussels require clean gravel/coarse sand 
substrates with oxygenated water to successfully become adults (USFWS 
2019, p. 11). Lastly, a silted bottom substrate can result in mortality 
(USFWS 2019, pp. 29, 59).
    Accordingly, we have clarified the intent of the fourth exception 
for silviculture practices and forest management activities to those 
that implement State-approved best management practices (BMPs), which 
include the following specifications for streamside management zones 
(SMZ), 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 the top of the stream bank, and is expected to confine visible 
sediment resulting from accelerated erosion.

             Table 1--Streamside Management Zone (SMZ) for Waterbodies Occupied by Atlantic Pigtoe.
----------------------------------------------------------------------------------------------------------------
                                                Zone 1  (no touch/no   Zone 2  (selective
      Percent slope of adjacent lands (%)       harvest; measured in    harvest  allowed;      Total SMZ width
                                                        feet)          measured  in feet)    (measured in 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 prevent 
visible sediment from entering intermittent streams, perennial streams, 
and perennial waterbodies are provided within 10 working days of 
initial disturbance and are maintained until the site is permanently 
stabilized.
    3. All access roads and skid trails are located outside of SMZs 
unless no other alternative exists.
    State-approved forestry BMPs are upheld by North Carolina's Forest 
Practice Guidelines (FPGs) related to water quality standards, the 
Virginia Department of Forestry, 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 websites for these 
organizations, as follows:

 https://www.stateforesters.org/bmps/
 https://www.ncforestservice.gov/publications/Forestry%20Leaflets/WQ01.pdf
 https://www.dof.virginia.gov/infopubs/BMP-Technical-Guide_pub.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 Atlantic pigtoe, but are not expected to 
negatively impact the species' conservation and recovery efforts. 
Rather, 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,

[[Page 59491]]

creating more favorable habitat conditions for the species.
    Further, 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.
    The Service recognizes the special and unique relationship with our 
State natural resource agency partners in contributing to 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 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 Atlantic 
pigtoe that may result in otherwise prohibited take without additional 
authorization.
    Finally, the proposed 4(d) rule would allow take of the Atlantic 
pigtoe without a permit by any employee or agent of the Service or a 
State conservation agency designated by his 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 Atlantic 
pigtoe 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 Atlantic pigtoe. However, interagency cooperation may 
be further streamlined through planned programmatic consultations for 
the species between Federal agencies and the Service. Anyone 
undertaking activities that are not covered by the provisions and that 
may result in take would need to ensure, in consultation with the 
Service, that those activities are not likely to jeopardize the 
continued existence of the species where the entity is a Federal agency 
or there is a Federal nexus, or consider applying for a permit before 
proceeding with the activity (if there is no Federal nexus).

New Information and Revisions to Proposed Critical Habitat

    During the public comment period, we received 12 comment letters 
containing over 80 comments on the proposed critical habitat 
designation. Some of the comments from the North Carolina Wildlife 
Resources Commission (NCWRC) provided information that recommended 
shortening proposed units to better match the Natural Heritage Program 
element occurrences. The NCWRC also provided new observation data 
collected since the first version of the SSA report, which was 
finalized in December 2016, including updated 2017 and 2018 survey 
records in Little Grassy Creek (Dan River Basin, Granville County, 
North Carolina), the Dan River (Rockingham County, North Carolina), and 
the Tar River (Nash County, North Carolina), and an updated 2015 survey 
location in Sturgeon Creek (Nottoway River Basin, Dinwiddie County, 
Virginia). We also determined we had accidentally omitted observations 
from 2011 in Sappony Creek (Nottoway River Basin, Dinwiddie County, 
Virginia) and the Nottoway River (in Brunswick, Dinwiddie, and 
Greensville Counties, Virginia) in the October 11, 2018, proposed rule 
(83 FR 51570). We also noted an error in the critical habitat table, 
where the measurement for the New Hope Creek unit is 4 river miles (6.4 
kilometers (km)), not 6 river miles (9.7 km). This information had been 
included in the SSA report but not in the proposed critical habitat 
designation.
    Therefore, in this document, we propose certain revisions to the 
critical habitat designation we proposed for the Atlantic pigtoe on 
October 11, 2018 (83 FR 51570). Because of these revisions, the 
numbering for most of the critical habitat units has changed from the 
October 11, 2018, proposed rule, although the names and descriptions 
remain the same. All revised changes to unit numbers are described 
below and listed in Table 2. Specifically, we propose to add two units 
based on updated observations of the species in locations previously 
considered historical; the new Unit 4 is 4 miles (6.6 km) of Sappony 
Creek in the Chowan River Basin in Dinwiddie County, Virginia (J. 
Stanhope 2019, pers. comm.), and the new Unit 9 is 3 miles (4.8 km) of 
Little Grassy Creek in the Roanoke River Basin in Granville County, 
North Carolina (NCWRC 2018, p.6). We also propose to revise Unit 5 
(previously Unit 4) to add 3.5 river miles (5.6 km) of Sturgeon Creek 
based on a 2015 observation of Atlantic pigtoe not included in the 
October 11, 2018, proposed rule, and 10.3 river miles (16.6 km) of 
Nottoway River based on accidental omission of data in the October 11, 
2018, proposed rule (J.Stanhope 2018, pers. comm.). We propose to 
revise Unit 7 (previously Unit 6) to add 7 miles (11.3 km) of the Dan 
River in Rockingham County, North Carolina, based on a 2017 observation 
of Atlantic pigtoe (NCWRC 2018, p.6). We propose to revise Unit 10 
(previously Unit 8) to remove two portions from this unit totaling 3.75 
miles (3.4 miles (5.5 km) from unnamed tributary to Bear Swamp Creek 
and 0.35 miles (0.6 km) from unnamed tributary to Cub Creek) to better 
match the Natural Heritage Element Occurrence data, and add one portion 
of 10 miles (16.1 km) to the Tar River in Nash County, North Carolina, 
based on a 2016 observation of Atlantic pigtoe. We also propose to 
revise Unit 11 (previously, Unit 9) to remove 8 miles (12.9 km) from 
Sandy Creek to better match the Natural Heritage Element Occurrence 
data in response to the public comments from the NCWRC. 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 Atlantic pigtoe, and may require 
special management considerations or protection from threats as 
described in the October 11, 2018, proposed rule (83 FR 51570). For 
clarity, we also propose to add short textual descriptions of each 
proposed unit in the regulatory text of the critical habitat 
designation.
    The DEA for the proposed critical habitat designation has not been 
revised. The counties containing the new units (Units 4 and 9) and the 
revised units (Units 7, 10, and 11) are included in the DEA's analysis 
that uses the consultation efforts occurring in counties, which overlap 
with the October 11, 2018, proposed designation

[[Page 59492]]

for Atlantic pigtoe critical habitat, as the basis of determining 
incremental costs. The revised Unit 5 (previously Unit 4) includes 0.99 
river miles (1.6 km) in Sussex County, Virginia, which was not 
considered in our DEA. However, given the small amount of habitat and 
zero consultation efforts on co-occurring species (yellow lance and 
Roanoke logperch) to date in this area of the Unit, we do not 
anticipate an increase in the overall incremental costs of designating 
critical habitat for the Atlantic pigtoe.

Revised Proposed Critical Habitat Designation

    In total, we now propose to designate approximately 566 miles (910 
kilometers) in 18 units in Virginia and North Carolina as critical 
habitat for the Atlantic pigtoe. 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) 
Craig Creek, (2) Mill Creek, (3) Middle James River, (4) Sappony Creek, 
(5) Nottoway River Subbasin, (6) Meherrin River, (7) Dan River, (8) 
Aarons Creek, (9) Little Grassy Creek, (10) Upper/Middle Tar River 
Subbasin, (11) Sandy/Swift Creek, (12) Fishing Creek Subbasin, (13) 
Lower Tar River, (14) Upper Neuse River Subbasin, (15) Middle Neuse 
River Subbasin, (16) New Hope Creek, (17) Deep River Subbasin, and (18) 
Little River Subbasin. 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 Atlantic pigtoe. Where 
appropriate, Table 2 also notes the previous number for units for which 
the numbering has changed.

                    Table 2--Revised Proposed Critical Habitat Units for the Atlantic Pigtoe
----------------------------------------------------------------------------------------------------------------
                                      Riparian        River miles
     Critical habitat unit           ownership       (kilometers)    Proposed changes   Previous unit  numbering
----------------------------------------------------------------------------------------------------------------
Unit 1. JR1--Craig Creek.......  Private; Federal.       29 (46.7)  None.............  Unit 1: JR1
Unit 2. JR2--Mill Creek........  Federal..........         1 (1.6)  None.............  Unit 2: JR2
Unit 3. JR3--Middle James River  Private..........         3 (4.8)  None.............  Unit 3: JR3
Unit 4. CR1--Sappony Creek.....  Private..........         4 (6.6)  New Unit.........  New Unit
Unit 5. CR2--Nottoway River      Private; Federal.        64 (103)  + 14 mi (22.5 km)  Unit 4: CR1
 Subbasin.
Unit 6. CR3--Meherrin River....  Private..........           5 (8)  None.............  Unit 5: CR2
Unit 7. RR1--Dan River.........  Private..........       14 (22.5)  +7 mi (11.2 km)..  Unit 6: RR1
Unit 8. RR2--Aarons Creek......  Private..........       12 (19.3)  None.............  Unit 7: RR2
Unit 9. RR3--Little Grassy       Private..........         3 (4.8)  New Unit.........  New Unit
 Creek.
Unit 10. TR1--Upper/Middle Tar   Private;               91 (146.5)  +6 mi (9.7 km)...  Unit 8: TR1
 River Subbasin.                  Easements.
Unit 11. TR2--Sandy/Swift Creek  Private; State;         50 (80.5)  -8 mi (12.8 km)..  Unit 9: TR2
                                  Easements.
Unit 12. TR3--Fishing Creek      Private; State;        85 (136.8)  None.............  Unit 10: TR3
 Subbasin.                        Easements.
Unit 13. TR4--Lower Tar River..  Private; State;         30 (48.3)  None.............  Unit 11: TR4
                                  Easements.
Unit 14. NR1--Upper Neuse River  Private; Federal;         60 (95)  None.............  Unit 12: NR1
 Subbasin.                        State; Easements.
Unit 15. NR2--Middle Neuse       Private; State;         61 (98.2)  None.............  Unit 13: NR2
 River Subbasin.                  County;
                                  Easements.
Unit 16. CF1--New Hope Creek...  Private;                  4 (6.4)  -2 mi (3.3 km)...  Unit 14: CF1
                                  Easements.
Unit 17. CF2--Deep River         Private..........       10 (16.1)  None.............  Unit 15: CF2
 Subbasin.
Unit 18. YR1- Little River       Private;                40 (64.4)  None.............  Unit 16: YR1
 Subbasin.                        Easements.
                                                   -------------------------------------------------------------
    Total......................  .................       566 (910)  +24 mi (38 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 where there is no change from the October 11, 2018, proposed 
rule, please refer to information at https://www.regulations.gov under 
Docket No. FWS-R4-ES-2018-0046. 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 4: CR1--Sappony Creek

    This is a new unit. Unit 4 consists of 4 river miles (6.6 river km) 
of Sappony Creek in Dinwiddie County, Virginia. The proposed designated 
area begins just upstream of the Seaboard Railroad crossing and ends 
just downstream of the Shippings Road (SR 709) crossing. 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 5: CR2--Nottoway River Subbasin

    Revised Unit 5 (previously Unit 4) consists of 64 river miles (103 
river km) of the Nottoway River and a portion of Sturgeon Creek in 
Nottoway, Lunenburg, Brunswick, Dinwiddie, Greensville, and Sussex 
Counties, Virginia. The proposed designation begins downstream of the 
Nottoway River's confluence with Dickerson Creek and ends at Little 
Mill Road, and includes Sturgeon Creek downstream of Old Stage Road. We 
propose to revise this unit to add 3.5 river miles (5.6 km) of Sturgeon 
Creek based on a 2015 observation of Atlantic pigtoe not included in 
the October 11, 2018, proposed rule, and 10.3 river miles (16.6 km) of 
Nottoway River based on accidental omission of data in that proposed 
rule. Land bordering the river is primarily privately owned, except for 
some land (14 miles) that is part of the Fort Pickett National Guard 
Installation

[[Page 59493]]

and therefore is owned by the United States. The unit currently 
supports all breeding, feeding, and sheltering needs of the species.
    Special management considerations or protection may be required 
within this unit to address a variety of threats. In the past decade, 
the Nottoway River suffered from several seasonal drought events, which 
not only caused very low dissolved oxygen conditions but also decreased 
food delivery because of minimal flows. In addition, these conditions 
led to increased predation rates on potential host fishes that were 
concentrated into low-flow refugia (e.g., pools). Urban stormwater and 
nonpoint source pollution have been identified as contributing to water 
quality issues in this unit; therefore, special management 
considerations for riparian buffer restoration, reduced surface and 
groundwater withdrawals, and stormwater retrofits will benefit the 
habitat in this unit. Additional threats to this system include oil and 
gas pipeline projects that propose to cross streams at locations where 
the species occurs. Additional special management considerations or 
protection may be required within this unit to address low water levels 
as a result of water withdrawals and drought, as well as recommendation 
of alternate routes for oil and gas pipelines, or directional bore for 
those projects.

Unit 7: RR1--Dan River

    Revised Unit 7 (previously Unit 6) consists of 14 river miles (22.5 
river km) of the Dan River along the border of Virginia and North 
Carolina from NC Highway 700 near Eden, North Carolina, into 
Pittsylvania County, Virginia, and downstream to the confluence with 
Williamson Creek in Rockingham County, North Carolina. We propose to 
revise this unit to add 7 miles (11.3 km) in Rockingham County, North 
Carolina, based on a 2017 observation of Atlantic pigtoe. The land on 
either side of the proposed critical habitat unit is privately owned. 
The unit currently supports all breeding, feeding, and sheltering needs 
for the species.
    Special management considerations or protection may be required 
within this unit to address threats. For example, a Duke Energy coal 
ash spill occurred upstream of this unit in February 2014; subsequent 
actions related to mitigating the effects of the spill will ultimately 
benefit the habitat in this unit, potentially allowing species 
restoration efforts.

Unit 9: RR3--Little Grassy Creek

    This is a new unit. Unit 9 consists of 3 river miles (4.8 river km) 
of Little Grassy Creek in Granville County, North Carolina. The 
proposed designated area begins at the Davis Chapel Road crossing and 
ends at the confluence with Grassy Creek. 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 10: TR1--Upper/Middle Tar River Subbasin

    This revised unit (previously Unit 8) consists of 91 miles (146.5 
km) of the mainstem of the upper and middle Tar River as well as 
several tributaries (Bear Swamp Creek, Fox Creek, Crooked Creek, Cub 
Creek, and Shelton Creek), in Granville, Vance, Franklin, and Nash 
Counties, North Carolina. The portion of Cub Creek starts near Hobgood 
Road and continues to the confluence with the Tar River; the Tar River 
portion starts just upstream of the NC 158 bridge and goes downstream 
to the NC 581 crossing; the Shelton Creek portion starts upstream of NC 
158 downstream to the confluence with the Tar River; the Bear Swamp 
Creek portion begins upstream of Dyking Road downstream to the 
confluence with the Tar River (and includes an unnamed tributary 
upstream of Beasley Road); the Fox Creek portion begins downstream of 
NC 561 to the confluence with the Tar River; and the Crooked Creek 
portion begins upstream of NC 98 crossing downstream to confluence with 
Tar River. We propose revisions to remove two portions from this unit 
(3.4 miles (5.5 km) from unnamed tributary to Bear Swamp Creek and 0.35 
miles (0.6 km) from unnamed tributary to Cub Creek) based on Natural 
Heritage Element Occurrence data, and to add 10 miles (16.1 km) to the 
Tar River in Nash County, North Carolina, based on a 2016 observation 
of Atlantic pigtoe. Land bordering the river and creeks is mostly (79 
mi (119 km)) privately owned, except for some areas (12 mi (17 km)) in 
public ownership or easements. The unit currently supports all 
breeding, feeding, and sheltering needs for the species.
    Special management considerations or protection may be required 
within this unit to address a variety of threats. 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 agricultural BMPs, implementing highest levels of 
treatment of wastewater practicable, maintenance of forested buffers, 
and connection of protected riparian corridors will benefit habitat for 
the species in this unit.

Unit 11: TR2--Sandy/Swift Creek

    This revised unit (previously Unit 9) consists of a 50-mile (80.5-
km) segment of Sandy/Swift Creek beginning at Southerland Mill Road 
downstream to NC 301 in Granville, Vance, Franklin, and Nash Counties, 
North Carolina. We propose to revise this unit to remove 8 miles (12.9 
km) from the upstream limit of Sandy Creek based on Natural Heritage 
Element Occurrence data in response to comments from the NCWRC. Land 
bordering the river and creeks is mostly (50 mi (80 km)) privately 
owned, with some areas (8 mi (13 km)) covered by protective easements 
held by a local land trust and the North Carolina Division of 
Mitigation Services. The unit currently supports all breeding, feeding, 
and sheltering needs for the species.
    Special management considerations or protection may be required 
within this unit to address a variety of threats. Excessive amounts of 
nitrogen and phosphorus run off the land or are discharged into the 
waters, causing excessive growth of microscopic or macroscopic 
vegetation and leading to extremely low levels of dissolved oxygen; 
there is one ``impaired'' stream reach totaling approximately 5 miles 
(8 km) in this unit. Special management focused on agricultural BMPs, 
maintenance of forested buffers, and connection of protected riparian 
corridors will benefit habitat for the species in this unit.

References Cited

    A complete list of references cited in this document is available 
on the internet at https://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

[[Page 59494]]

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 83 FR 51570 (October 11, 2018) 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. Add Sec.  17.45 to read as set forth below:


Sec.  17.45  Special rules--snails and clams.

    (a) Atlantic pigtoe (Fusconaia masoni).
    (1) Prohibitions. Except as noted in paragraph (a)(2) of this 
section 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)(3) and (c)(4) for 
endangered wildlife.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts, as set 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. Prior to 
restoration action, surveys to determine presence of Atlantic pigtoe 
must be performed, and if located, mussels 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 vegetation 
includes woody species appropriate for the region and habitat 
conditions. These methods must 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 
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 must 
be installed using properly designed and constructed structures 
installed at right angles to the stream, must not impede fish passage 
or stream flow, and must minimize the amount of visible sediment that 
enters that stream or waterbody. The number of crossings must be 
minimized, stable sites for crossings must be chosen, and access roads 
and skid trails must be located outside of SMZs unless no other 
alternative exists.
    (b) [Reserved]
0
3. Amend Sec.  17.95(f), the entry proposed at 83 FR 51570 for 
``Atlantic Pigtoe (Fusconaia masoni)'', by revising paragraphs (5) 
through (21) and by adding paragraphs (22) and (23), to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Atlantic Pigtoe (Fusconaia masoni)
* * * * *
    (5) Note: Index map follows:

BILLING CODE 4333-15-P

[[Page 59495]]

[GRAPHIC] [TIFF OMITTED] TP22SE20.000

    (6) Unit 1: JR1--Craig Creek, Craig and Botetourt Counties, 
Virginia.
    (i) This unit consists of 29 river miles (46.7 river kilometers) of 
Craig Creek near VA Route 616 west of New Castle downstream to just 
below VA Route 817 crossing.
    (ii) Map of Unit 1 (Craig Creek) follows:

[[Page 59496]]

[GRAPHIC] [TIFF OMITTED] TP22SE20.001

    (7) Unit 2: JR2--Mill Creek, Bath County, Virginia.
    (i) This unit consists of a 1-mile (1.6-kilometer) segment of Mill 
Creek at the VA 39 (Mountain Valley Road) crossing.
    (ii) Map of Unit 2 (Mill Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.002
    

[[Page 59497]]


    (8) Unit 3: JR3--Middle James River, Fluvanna and Buckingham 
Counties, Virginia.
    (i) This unit consists of a 3-mile (4.8-kilometer) segment of the 
Middle James River downstream of its confluence with the Slate River, 
under the crossing of VA Hwy 15 (James Madison Highway) along the 
boundary of Fluvanna and Buckingham Counties, Virginia.
    (ii) Map of Unit 3 (Middle James River) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.003
    

[[Page 59498]]


    (9) Unit 4: CR1--Sappony Creek, Dinwiddie County, Virginia.
    (i) This unit consists of 4 river miles (6.6 river kilometers) of 
Sappony Creek in Dinwiddie County, Virginia. The designated area begins 
just upstream of the Seaboard Railroad crossing and ends just 
downstream of the Shippings Road (SR 709) crossing.
    (ii) Map of Unit 4 (Sappony Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.004
    

[[Page 59499]]


    (10) Unit 5: CR2--Nottoway River Subbasin, Nottoway, Lunenburg, 
Brunswick, Dinwiddie, Greensville, and Sussex Counties, Virginia.
    (i) This unit consists of 64 river miles (103 river kilometers) of 
the Nottoway River, and a portion of Sturgeon Creek. The designation 
begins downstream of the Nottoway River's confluence with Dickerson 
Creek and ends at Little Mill Road, and includes Sturgeon Creek 
downstream of Old Stage Road.
    (ii) Map of Unit 5 (Nottoway River Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.005
    

[[Page 59500]]


    (11) Unit 6: CR3--Meherrin River, Brunswick County, Virginia.
    (i) This unit consists of 5 miles (8 kilometers) of the Meherrin 
River from approximately 1.5 river miles below the confluence with 
Saddletree Creek under VA Hwy 46 (Christana Highway) to VA 715 (Iron 
Bridge Road).
    (ii) Map of Unit 6 (Meherrin River) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.006
    

[[Page 59501]]


    (12) Unit 7: RR1--Dan River, Pittsylvania County, Virginia, and 
Rockingham County, North Carolina.
    (i) This unit consists of 14 river miles (22.5 river kilometers) of 
the Dan River along the border of Virginia and North Carolina from NC 
Highway 700 near Eden, North Carolina, into Pittsylvania County, 
Virginia, and downstream to the confluence with Williamson Creek in 
Rockingham County, North Carolina.
    (ii) Map of Unit 7 (Dan River) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.007
    

[[Page 59502]]


    (13) Unit 8: RR2--Aarons Creek, Granville County, North Carolina, 
and Mecklenburg and Halifax Counties, Virginia.
    (i) This unit consists of 12 miles (19.3 kilometers) of Aarons 
Creek, from NC 96 in Granville County, North Carolina, downstream 
across the North Carolina-Virginia border to VA 602 (White House Road) 
along the Mecklenburg County-Halifax County line in Virginia.
    (ii) Map of Unit 8 (Aarons Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.008
    

[[Page 59503]]


    (14) Unit 9: RR3--Little Grassy Creek, Granville County, North 
Carolina.
    (i) This unit consists of 3 river miles (4.8 river kilometers) of 
Little Grassy Creek in Granville County, North Carolina. The designated 
area begins at the Davis Chapel Road crossing and ends at the 
confluence with Grassy Creek.
    (ii) Map of Unit 9 (Little Grassy Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.009
    

[[Page 59504]]


    (15) Unit 10: TR1--Upper/Middle Tar River Subbasin, Granville, 
Vance, Franklin, and Nash Counties, North Carolina.
    (i) This unit consists of 91 miles (146.5 kilometers) of the 
mainstem of the upper and middle Tar River as well as several 
tributaries (Bear Swamp Creek, Fox Creek, Crooked Creek, Cub Creek, and 
Shelton Creek), all in North Carolina. The portion of Cub Creek starts 
near Hobgood Road and continues to the confluence with the Tar River; 
the Tar River portion starts just upstream of the NC 158 bridge and 
goes downstream to the NC 581 crossing; the Shelton Creek portion 
starts upstream of NC 158 downstream to the confluence with the Tar 
River; the Bear Swamp Creek portion begins upstream of Dyking Road 
downstream to the confluence with the Tar River (and includes an 
unnamed tributary upstream of Beasley Road); the Fox Creek portion 
begins downstream of NC 561 to the confluence with the Tar River; and 
the Crooked Creek portion begins upstream of NC 98 crossing downstream 
to confluence with Tar River.
    (ii) Map of Unit 10 (Upper/Middle Tar River Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.010
    

[[Page 59505]]


    (16) Unit 11: TR2--Sandy/Swift Creek, Warren, Franklin, and Nash 
Counties, North Carolina.
    (i) This unit consists of a 50-mile (80.5-kilometer) segment of 
Sandy/Swift Creek beginning at Vance/Warren county line downstream to 
NC 301 in Franklin County.
    (ii) Map of Unit 11 (Sandy/Swift Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.011
    

[[Page 59506]]


    (17) Unit 12: TR3--Fishing Creek Subbasin, Warren, Halifax, 
Franklin, and Nash Counties, North Carolina.
    (i) This unit consists of 85 miles (136.8 kilometers) in Fishing 
Creek, Little Fishing Creek, Shocco Creek, and Maple Branch. The Shocco 
Creek portion begins downstream of the NC 58 bridge and continues to 
the confluence with Fishing Creek; the entirety of Maple Branch is 
included, down to the confluence with Fishing Creek; Fishing Creek 
begins at Axtell Ridgeway Road (SR 1112) downstream to I-95; and Little 
Fishing Creek begins upstream of Briston Brown Road (SR 1532) 
downstream to the confluence with Fishing Creek.
    (ii) Map of Unit 12 (Fishing Creek Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.012
    

[[Page 59507]]


    (18) Unit 13: TR4--Lower Tar River, Edgecombe and Pitt Counties, 
North Carolina.
    (i) This unit consists of 30 miles (48.3 kilometers) of the Lower 
Tar River, lower Swift Creek, and Fishing Creek in Edgecombe County, 
North Carolina, from NC 97 near Leggett, North Carolina, to the 
Edgecombe-Pitt County line near NC 33.
    (ii) Map of Unit 13 (Lower Tar River) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.013
    

[[Page 59508]]


    (19) Unit 14: NR1--Upper Neuse River Subbasin, Person, Durham, and 
Orange Counties, North Carolina.
    (i) This unit consists of 60 river miles (95 river kilometers) in 
four reaches including Flat River, Little River, Eno River, and the 
Upper Eno River. The Flat River reach consists of 19 river miles (30.6 
river kilometers) in the Flat River Subbasin in Person and Durham 
Counties, North Carolina, including the South Flat River downstream of 
Dick Coleman Road, the North Flat River near Parsonage Road, and Deep 
Creek near Helena-Moriah Road downstream where each river converges 
into the Flat River downstream of State Forest Road. The Little River 
Subbasin includes 18 river miles (29 river kilometers) of the North 
Fork and South Fork Little Rivers in Orange and Durham Counties, North 
Carolina. The Upper Eno River reach consists of 4 river miles (6.4 
river kilometers) in Orange County, North Carolina, including the West 
Fork Eno River upstream of Cedar Grove Road to the confluence with 
McGowan Creek. The Eno River reach consists of 18 river miles (29 river 
kilometers) in Orange and Durham Counties, North Carolina, from below 
Eno Mountain Road to NC 15-501.
    (ii) Map of Unit 14 (Upper Neuse River Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.014
    
    (20) Unit 15: NR2--Middle Neuse River Subbasin, Wake, Johnston, and 
Wilson Counties, North Carolina.
    (i) This unit consists of 61 river miles (98.2 river kilometers) in 
five reaches including Swift Creek, Middle Creek, Upper Little River, 
Middle Little River, and Contentnea Creek, all in North Carolina. The 
Middle Creek reach is 19 river miles (30.6 river kilometers) below Old 
Stage Road downstream to below Crantock Road, and the Swift Creek reach 
is 25 river miles (40.2 river kilometers) from Lake Benson downstream 
to confluence with the Neuse, both in Wake and Johnston Counties. The 
Upper Little River reach includes 4 miles (6.4 kilometers) of the Upper 
Little River from the confluence with Perry Creek to Fowler Road in 
Wake County, North Carolina. The Middle Little River reach includes 11 
river miles (17.7 river kilometers) from Atkinsons Mill downstream to 
NC 301 in Johnston County, North Carolina. The Contentnea Creek reach 
consists of 2 river miles (3.2 river kilometers) below Buckhorn 
Reservoir to just below Sadie Road near NC 581 in Wilson County, North 
Carolina.
    (ii) Map of Unit 15 (Middle Neuse River Subbasin) follows:

[[Page 59509]]

[GRAPHIC] [TIFF OMITTED] TP22SE20.015

    (21) Unit 16: CF1--New Hope Creek, Orange County, North Carolina.
    (i) This unit consists of 4 mi (6.4 km) of habitat in the New Hope 
Creek from NC 86 to Mimosa Road.
    (ii) Map of Unit 16 (New Hope Creek) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.016
    

[[Page 59510]]


    (22) Unit 17: CF2--Deep River Subbasin, Randolph County, North 
Carolina.
    (i) The Deep River Subbasin unit consists of 10 river miles (16.1 
river kilometers), including the mainstem between Richland and Brush 
Creeks as well as Richland Creek from Little Beane Store Road to the 
confluence with the Deep River and Brush Creek from Brush Creek Road to 
the confluence with the Deep River.
    (ii) Map of Unit 17 (Deep River Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.017
    

[[Page 59511]]


    (23) Unit 18: YR1--Little River Subbasin, Randolph and Montgomery 
Counties, North Carolina.
    (i) This unit consists of 40 miles (64.4 kilometers) of Little 
River from SR 1114 downstream to Okeewemee Star Road, including the 
West Fork Little River from NC 134 to the confluence with the Little 
River.
    (ii) Map of Unit 18 (Little River Subbasin) follows:
    [GRAPHIC] [TIFF OMITTED] TP22SE20.018
    
* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19095 Filed 9-21-20; 8:45 am]
BILLING CODE 4333-15-C