Home/Federal/Federal Register/2021-11600

Rule2021-11600

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

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

June 9, 2021

Effective

July 9, 2021

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service (Service), list two North Carolina species, the Carolina madtom (Noturus furiosus) as endangered, and the Neuse River waterdog (Necturus lewisi) as threatened, under the Endangered Species Act of 1973 (Act), as amended. We also issue a rule under section 4(d) of the Act for the Neuse River waterdog, to provide for the conservation of this species. In addition, we designate critical habitat for both species under the Act. For the Carolina madtom, approximately 257 river miles (mi) (414 river kilometers (km)) fall within 7 units of critical habitat in Durham, Edgecombe, Franklin, Granville, Halifax, Johnston, Jones, Nash, Orange, Vance, Warren, and Wilson Counties, North Carolina. For the Neuse River waterdog, approximately 779 river mi (1,254 river km) fall within 18 units of critical habitat in Craven, Durham, Edgecombe, Franklin, Granville, Greene, Halifax, Johnston, Jones, Lenoir, Nash, Orange, Person, Pitt, Wake, Warren, Wayne, and Wilson Counties, North Carolina. This rule extends the Act's protections to these species and their designated critical habitats.

Full Text

<html>
<head>
<title>Federal Register, Volume 86 Issue 109 (Wednesday, June 9, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 109 (Wednesday, June 9, 2021)]
[Rules and Regulations]
[Pages 30688-30751]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11600]

[[Page 30687]]

Vol. 86

Wednesday,

No. 109

June 9, 2021

Part II

Department of the Interior

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

Fish and Wildlife Service

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

50 CFR Part 17

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

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules
and Regulations

[[Page 30688]]

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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0092; FF09E21000 FXES11110900000 212]
RIN 1018-BC28

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list two
North Carolina species, the Carolina madtom (Noturus furiosus) as
endangered, and the Neuse River waterdog (Necturus lewisi) as
threatened, under the Endangered Species Act of 1973 (Act), as amended.
We also issue a rule under section 4(d) of the Act for the Neuse River
waterdog, to provide for the conservation of this species. In addition,
we designate critical habitat for both species under the Act. For the
Carolina madtom, approximately 257 river miles (mi) (414 river
kilometers (km)) fall within 7 units of critical habitat in Durham,
Edgecombe, Franklin, Granville, Halifax, Johnston, Jones, Nash, Orange,
Vance, Warren, and Wilson Counties, North Carolina. For the Neuse River
waterdog, approximately 779 river mi (1,254 river km) fall within 18
units of critical habitat in Craven, Durham, Edgecombe, Franklin,
Granville, Greene, Halifax, Johnston, Jones, Lenoir, Nash, Orange,
Person, Pitt, Wake, Warren, Wayne, and Wilson Counties, North Carolina.
This rule extends the Act's protections to these species and their
designated critical habitats.

DATES: This rule is effective July 9, 2021.

ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All of
the comments, materials, and documentation that we considered in this
rulemaking are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No.
FWS-R4-ES-2018-0092.
For the critical habitat designation, the coordinates or plot
points or both from which the maps are generated are included in the
administrative record and are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
at Docket No. FWS-R4-ES-2018-0092, and at the Raleigh Ecological
Services Field Office (<a href="https://www.fws.gov/raleigh">https://www.fws.gov/raleigh</a>; street address
provided above). Any additional tools or supporting information that we
developed for this critical habitat designation will also be available
at the Fish and Wildlife Service website and Field Office identified
above, and may also be included in the preamble and at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

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 919-816-6408. Persons
who use a telecommunications device for the deaf (TDD) may call the
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species throughout all or a
significant portion of its range, we are required to promptly publish a
proposal in the Federal Register and make a determination on our
proposal within one year. To the maximum extent prudent and
determinable, we must designate critical habitat for any species that
we determine to be an endangered or threatened species under the Act.
Whenever any species is listed as a threatened species, the Secretary
shall issue such regulations as he or she deems necessary and advisable
to provide for the conservation of such species. In addition, the
Secretary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1) of the Act for
endangered species. Listing a species as an endangered or threatened
species and designation of critical habitat can only be completed by
issuing a rule.
What this document does. This final rule: (1) Lists the Carolina
madtom as endangered, (2) designates critical habitat for the Carolina
madtom, (3) lists the Neuse River waterdog as threatened, (4) issues a
rule under section 4(d) of the Act for the Neuse River waterdog, and
(5) designates critical habitat for the Neuse River waterdog.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat degradation
(Factor A), resulting from the cumulative impacts of land use change
and associated watershed-level effects on water quality, water
quantity, habitat connectivity, and instream habitat suitability, poses
the largest risk to the future viability of both species. This stressor
is primarily related to habitat changes: The buildup of fine sediments,
the loss of flowing water, instream habitat fragmentation, and
impairment of water quality, and it is exacerbated by the effects of
climate change (Factor E). The Carolina madtom is also impacted by
predation from flathead catfish (Factor C). There are no existing
regulatory mechanisms that ameliorate or reduce these threats such that
the species do not warrant listing (Factor D).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species.
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat for the Carolina madtom and the Neuse River waterdog. We
published the announcement of, and solicited public comments on, the
draft economic analyses (84 FR 23644; May 22, 2019). We received no
comments on the draft economic analyses and adopted the draft economic
analyses as final.

[[Page 30689]]

Peer review and public comments. During the proposed rule stage, we
sought the expert opinions of 11 appropriate specialists regarding the
species status assessment report. We received responses from five
specialists, which informed our determinations. Information we received
from peer review is incorporated into this final rule. We also
considered all comments and information we received from the public
during two comment periods.

Previous Federal Actions

Please refer to the proposed listing and critical habitat rule (84
FR 23644; May 22, 2019) for the Carolina madtom and Neuse River
waterdog, and the document reopening the May 22, 2019, proposed rule's
public comment period (85 FR 45839; July 30, 2020), for detailed
descriptions of previous Federal actions concerning these species.

Supporting Documents

Species status assessment (SSA) teams prepared SSA reports for the
Carolina madtom and Neuse River waterdog. The SSA teams were composed
of Service biologists, in consultation with other species experts. The
SSA reports each represent a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species. The SSA reports and
other materials relating to this rule can be found on the Service's
Southeast Region website at <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a>, at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0092, and at the
Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).

Summary of Changes From the Proposed Rule

This final rule incorporates several changes to our proposed rule
(84 FR 23644; May 22, 2019) based on the comments we received. These
changes are summarized in the document that reopened the proposed
rule's public comment (85 FR 45839; July 30, 2020), as well as below
under Summary of Comments and Recommendations. Minor, nonsubstantive
changes and corrections are made throughout this rule in response to
comments. Based on these comments, we also incorporate as appropriate
new information into our SSA reports, including updated survey
information. However, the information we received during the public
comment period on the proposed rule did not change our determination
that the Carolina madtom is an endangered species and the Neuse River
waterdog is a threatened species.
We received substantive comments on the proposed rule issued under
section 4(d) of the Act (``4(d) rule'') for the Neuse River waterdog
and the critical habitat designations for both species. We have made
changes to this rule as a result of the public comments we received. We
modified the language in the Neuse River waterdog 4(d) rule for each
exception for incidental take. In summary, we modified the exception
for species restoration efforts by State wildlife agencies to include
monitoring, which is necessary to determine the success of captive
propagation and stocking efforts; for channel restoration projects to
add language that would require surveys for and relocation of Neuse
River waterdogs observed prior to commencement of restoration action;
for bank stabilization projects to add a requirement that appropriate
``native'' vegetation, including woody and herbaceous species
appropriate for the region and habitat, be used for stabilization; and
for forestry-related actions to reflect alternative language provided
by the North Carolina Forest Service (NCFS) (see (28) Comment under
Summary of Comments and Recommendations, below). In terms of critical
habitat, for the Carolina madtom, we updated ownership information for
the Eno River critical habitat (Unit 4), we modified the occupancy
determination from unoccupied to occupied for critical habitat Unit 6
(Contentnea Creek) based on new data for the species (see (8) Comment
under Summary of Comments and Recommendations, below). For the Neuse
River waterdog, we added two occupied critical habitat units (Unit 3--
Bens Creek and Unit 18--Tuckahoe Swamp) and modified to add or remove
areas to/from five units (Unit 1--Upper Tar River, Unit 4--Fishing
Creek Subbasin, Unit 6--Middle Tar River Subbasin, Unit 10--Middle
Creek, and Unit 17--Trent River) of the critical habitat designation,
for a total of 779 miles, an increase of 41 miles from the proposed
designation.
As indicated in the document that reopened the proposed rule's
public comment (85 FR 45839; July 30, 2020), we have also changed the
way in which the provisions of the 4(d) rule for the Neuse River
waterdog will appear at 50 CFR 17.43(f). Specifically, we no longer set
forth a blanket statement applying all prohibitions and provisions of
50 CFR 17.31 and 17.32 to the Neuse River waterdog. Instead, we set
forth specific prohibitions and exceptions to those prohibitions in the
4(d) rule, but the substance of the prohibitions and the exceptions to
those prohibitions, as included in the May 22, 2019, proposed rule (84
FR 23644), has not changed.

Summary of Comments and Recommendations

In the proposed rule published on May 22, 2019 (84 FR 23644), and
in the document published on July 30, 2020 (85 FR 45839) that reopened
the comment period on the May 22, 2019, proposed rule, we requested
that all interested parties submit written comments on the proposals.
We also contacted appropriate Federal and State agencies, scientific
experts and organizations, and other interested parties and invited
them to comment on the proposals. Newspaper notices inviting general
public comment were published in the Raleigh News and Observer on June
3, 2019, and on August 9, 2020. We did not receive any requests for a
public hearing. All substantive information provided during the comment
periods has either been incorporated directly into the final
determinations or is addressed below. For topics we received comments
on during both comment periods (e.g., the forestry exception language
in the 4(d) rule), we identify whether the comments were received as
part of the initial comment period (May 22-July 22, 2019) or the
reopened comment period (July 30-August 31, 2020).

Peer Reviewer Comments

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA
reports. We sent the Carolina madtom SSA report to six independent peer
reviewers and the Neuse River waterdog SSA to five independent peer
reviewers; all peer reviewers had expertise that included familiarity
with Carolina madtom or Neuse River waterdog and their habitats,
biological needs, and threats. We received responses from four of the
peer reviewers for the Carolina madtom and one of the peer reviewers
for the Neuse River waterdog.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the information
contained in the SSA reports. The peer reviewers generally concurred
with our methods and conclusions, and provided additional information,
clarifications, and suggestions to improve the final SSA reports. Peer
reviewer comments are addressed in the following summary

[[Page 30690]]

and were incorporated into the SSA reports as appropriate.

Carolina Madtom

(1) Comment: One peer reviewer mentioned that predation by flathead
catfish is likely a dominant threat to the Carolina madtom but appears
minimally considered as a habitat factor in the SSA report. The
commenter suggested that in addition to physical habitat attributes,
biotic factors may in many cases (including this case) be critically
important. This important habitat influence could be emphasized more in
the SSA report.
Our Response: Data on the distribution, abundance, or predation
pressure on madtoms for flathead catfish in either the Neuse or Tar
River basins are not available; therefore, we could not explicitly
include flathead catfish as a metric. Section 4.4 of the SSA report
describes the significant threat that flathead catfish pose to the
Carolina madtom, as does the overall viability summary for the species.
(2) Comment: One peer reviewer suggested that we make a strong
statement concerning the endemism of the Tar-Neuse ecosystem and what a
unique crucible of evolution it has been, as manifested in several
endemic species, including the Carolina madtom, Tar River spinymussel
(Parvaspina steinstansana), pinewoods shiner (Lythrurus matutinus),
Neuse River waterdog, and others. The uniqueness of the overall
ecosystem cannot be overemphasized, and the mutual benefits derived
from the listing of any of the endemic organisms has appeal.
Our Response: We note the endemism of the Carolina madtom to the
Tar and Neuse river systems in chapter 3 of the SSA report. While
listing and critical habitat designation under the Act only apply to
the species under consideration, we acknowledge that protections
derived from implementing the Act are beneficial to the overall habitat
and other organisms that co-occur with the Carolina madtom. However,
benefits that listing a species under the Act may have on the overall
ecosystem is not a factor for consideration when determining whether a
species warrants listing under the Act.
(3) Comment: One peer reviewer commented that the SSA report
suggests that instream habitat, water flow, and invasive fish are the
main factors influencing madtom populations, and it is unclear how any
of these factors are attributable to Confined Animal Feeding Operations
(CAFOs). There is no direct linkage provided in the SSA report.
Our Response: Multiple sections in the SSA report state that the
main habitat elements that influence Carolina madtom condition are
water quality (CAFOs are a part of this, as are National Pollutant
Discharge Elimination System (NPDES) discharges, as they contribute to
identified impaired streams), water quantity, connectivity (potentially
affected by CAFOs located within floodplains), instream habitat (also
affected by CAFOs when runoff overwhelms instream flows), and predation
by flathead catfish. Section 4.2 of the SSA report details the effects
of CAFOs on the habitats within the madtom's range (Service 2021a, pp.
35-36).
(4) Comment: One peer reviewer expressed disappointment that the
Service did not reference materials provided via email in July 2016,
stating that the SSA report has a slanted viewpoint, has cherry-picked
negative impacts associated with forest management, and only focuses on
those in the analysis.
Our Response: The material provided to us in July 2016 has been
cited directly in the revised forestry section (section 4.3) of the SSA
report (Service 2021a, pp. 36-40). We note that the very first sentence
in this section of the SSA report states that a forested landscape
provides ideal conditions for aquatic ecosystems. In the SSA report and
in this final rule, we also note that silvicultural activities, when
performed according to strict forest practices guidelines (FPGs) or
best management practices (BMPs), can retain adequate conditions for
aquatic ecosystems. However, we also note that, when FPGs/BMPs are not
implemented or inadequate implementation occurs, these forestry
activities can also ``cause measurable impacts'' (NCASI 2015, p. 1) and
contribute to the myriad of stressors facing aquatic systems in the
Southeast (Service 2021a, p. 37). In addition, we note that one major,
albeit temporary, BMP failure, a harvest that is non-compliant with
BMPs or FPGs, or failure to maintain a BMP, can cause enough
sedimentation to smother nests and/or cause enough stress to have
irreversible impacts to Carolina madtom populations.
(5) Comment: One peer reviewer recommended that the Service solicit
a representative of the agriculture community to participate in the
peer review of the SSA report. The peer reviewer noted that both the
Neuse and Tar-Pamlico River basins have a substantial amount of
agricultural operations and it may be beneficial for all parties to
understand how that type of land use may play a role in supporting
future species conservation needs.
Our Response: We sought peer review from an agriculture expert in
the North Carolina Department of Agriculture for the Neuse River
waterdog SSA report (which has very similar analysis of agricultural
operations as the Carolina madtom SSA report). However, we did not
receive a response to our request.

Neuse River Waterdog

(6) Comment: One peer reviewer had questions about the occupancy
metrics and whether detection probabilities were incorporated into the
estimates of occupancy, as well as the time periods that the survey
efforts represented in order to better understand the underlying
analyses presented in the SSA report.
Our Response: We added detection probability information into the
SSA report (Service 2021b, p. 19) and note that for the original
analysis, site occupancy indicates a minimum, na[iuml]ve occupancy
(i.e., detection probabilities were not incorporated into the initial
estimates). We are currently working with North Carolina State
University to perform an in-depth occupancy analysis for Neuse River
waterdog; however, this analysis has not been completed, and the
resulting information is not available for incorporation. We also note
that the time periods and replicated methodologies for the survey
efforts are also described in section 3.3.1 of the SSA report (Service
2021b, p. 19).

State Agency Comments

We received comments from three State agencies, the North Carolina
Wildlife Resources Commission (NCWRC), the North Carolina Forest
Service (NCFS), and the Virginia Department of Forestry (VDOF). Because
we received several comments from both NCFS and VDOF and from the
public regarding forestry considerations, we have integrated NCFS/VDOF
comments and responses under Public Comments, below.

Carolina Madtom

(7) Comment: The NCWRC provided a thorough review of the SSA report
and included many comments updating data and interpretations. The
partner review suggested that we revise the document to include the
Trent River Subbasin within the greater Neuse River basin, based on the
hydrologic unit categorization, to avoid confusion.
Our Response: Nearly all data revisions and interpretations were
incorporated into the revised SSA report. In section 3.1 of the SSA
report,

[[Page 30691]]

we describe why we separated the Trent River Subbasin: ``Because of
salt water influence, the habitats in the Trent River system are
isolated from the Neuse River and its tributaries; therefore, we
consider the Trent River system as a separate basin (i.e., population),
even though it is technically part of the larger Neuse River Basin''
(Service 2021a, p. 9).
(8) Comment: The NCWRC provided a new record during the public
comment period in 2019, of a Carolina madtom collected from Contentnea
Creek near NC 42 in July 2018.
Our Response: While we included this reach in proposed critical
habitat, the May 22, 2019, proposed rule (84 FR 23644) considered
Contentnea Creek to be unoccupied, with the last known record from
2007. With this 2018 record, we consider the Contentnea Creek critical
habitat unit to be occupied. Therefore, we have updated the designated
critical habitat to reflect that Unit 6--Contentnea Creek is occupied
for the Carolina madtom. We revised the critical habitat designation to
address this comment in our July 30, 2020, document reopening the May
22, 2019, proposed rule's public comment period (85 FR 45839).

Neuse River Waterdog

(9) Comment: The NCWRC provided a thorough review of the SSA report
and included many comments updating data and interpretations. The
partner review indicated concern about how current occupancy was
summarized (i.e., that the species currently occupies 73 percent of its
historical range), indicating that the recent survey efforts suggest a
50 percent decline in occupied sites from the surveys done in the early
1980s.
Our Response: Data revisions and interpretations were incorporated
into the revised SSA report. We note that current occupancy versus the
occupancy of historical range at the species level is summarized by
watershed (or hydrologic unit) occupancy within MUs rather than by
individual site occupancy. This difference likely accounts for the
apparent discrepancy noted by the commenter. The SSA report includes
details about changes at the site level, as well as the overall
watershed, to provide as complete a picture as possible of changes from
historical times to the present day (Service 2021b, p. v).
(10) Comment: The NCWRC provided several new records for Neuse
River waterdog during the public comment period in 2019, including
records in Middle Creek (Johnston County), Tuckahoe Swamp (Jones
County), Tar River (Granville County), and Fishing Creek (Nash County).
Our Response: We included these new records and updated five
critical habitat units (Unit 1--Upper Tar River, Unit 4--Fishing Creek
Subbasin, Unit 6--Middle Tar River Subbasin, Unit 10--Middle Creek, and
Unit 17--Trent River). We revised Unit 1 to add 3.7 miles (6 km) of the
Upper Tar River based on a 2018 observation provided by NCWRC of Neuse
River waterdog. We revised Unit 4 to add 20 miles (32.3 km) of Fishing
Creek based on a 2019 observation provided by NCWRC of Neuse River
waterdog. We revised Unit 6 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 revised Unit 10 to add
23.2 miles (37.4 km) of Middle Creek based on two 2018 observations
provided by NCWRC of Neuse River waterdog. These revisions were part of
our July 30, 2020, document reopening the May 22, 2019, proposed rule's
public comment period (85 FR 45839).

Public Comments

During the initial comment period, we received 83 public comments
on the proposed rule, and during the reopened comment period, we
received 16 public comments. A majority of the comments supported the
listing determinations and critical habitat designations, none opposed
the designations, and some included suggestions on how we could refine
or improve the 4(d) rule for the Neuse River waterdog and the critical
habitat designations for both species. All substantive information
provided to us during the comment periods has been incorporated
directly into this final rule or is addressed below. For topics for
which we received comments during both comment periods (e.g., the
forestry exception language in the 4(d) rule), we identify whether the
comments were received during the initial comment period (May 22-July
22, 2019) or the reopened comment period (July 30-August 31, 2020).
(11) Comment: One commenter indicated that the Service should
consider forestry BMPs as part of the overall conservation benefit for
the species, and account for these beneficial actions in any threat
analysis.
Our Response: Forested watersheds contribute to the current
condition of each species and have been factored in as a positive
factor (i.e., benefit) under the ``Connectivity'' habitat element as
described in chapter 3 of each species' SSA report. We also note that
forestry activities were not carried forward as a primary threat for
our future condition analyses because the future condition analyses
focused on the main threats (urbanization and climate change) that are
predicted to affect the species' future condition.
(12) Comment: One commenter stated that the proposed rule does not
present evidence that forest management is contributing elevated levels
of sediment to streams occupied by the Neuse River waterdog and
Carolina madtom.
Our Response: Sediment is one of the most frequently cited water
quality concerns associated with forestry operations and is one of the
top causes of river and stream impairment in the United States (EPA
2017, p. 3). Sedimentation is one of the primary stressors to aquatic
fauna, including the Neuse River waterdog and Carolina madtom (Service
2021ab, chapter 4). Forestry practices can alter the natural sediment
balance and lead to increased rates of sediment input, resulting in
increased concentrations of sediment in the water body and increased
deposition of sediment on the stream bottom. The forest industry
recognizes that harvest and management practices cause sedimentation,
which is why they have BMPs, or practices that are used to minimize
water pollution from sedimentation. BMP implementation rates are
generally high, and in the Neuse and Tar-Pamlico River basins, overall
BMP implementation rates are approximately 88 to 90 percent (Coats
2017, p. 38). While we do not know the exact location of all forestry
operations in the Neuse and Tar-Pamlico River basins (see maps from
North Carolina Forest Service (NCFS) 2018, p. 43), lack of BMP
implementation was approximately 10 to 12 percent for sites assessed in
those watersheds from 2012-2016; identified risks to water quality were
most often attributed to improper BMPs for Streamside Management Zones
(SMZs) and stream crossings (Coats 2017, pp. 8-9), which likely
contributed sedimentation to habitats in the systems that the waterdog
and madtom occupy.
(13) Comment: To provide additional information about compliance,
one commenter described the process for when a ``significant risk to
water quality'' is observed during BMP implementation inspections. They
indicated that the presence of a significant risk triggers further
investigation by State agency inspectors that leads to collaborative
efforts among State agencies, the forest landowner, logger, and/or
contractor to perform corrective measures to remedy the issue. After a
reasonable period of time, a follow-up site evaluation is made to
assess compliance with the

[[Page 30692]]

recommended measures. Willful noncompliance with State agency
recommendations typically results in a referral to the appropriate
regulatory agency for enforcement action.
Our Response: We acknowledge the protocols in place to remedy water
quality violations. We recommend that the Service be included in the
agencies notified if water quality violations occur to habitats
occupied by the Neuse River waterdog or Carolina madtom.
(14) Comment: During the initial comment period, one commenter
noted that within the range of the Neuse River waterdog and Carolina
madtom, North Carolina BMPs require a minimum SMZ width of 50 feet on
each side of the stream, and referenced chapter 4 (SMZs and Riparian
Buffers) of the NCFS's BMP manual.
Our Response: Our review of the NCFS's BMP Manual indicates that
50-foot buffers are part of the Tar-Pamlico and Neuse riparian buffer
rules; however, recent correspondence with the NCFS clarifies that
forest harvesting is allowed in all zones of the 50-foot buffer (see
chapter 02 of title 15A of the North Carolina Administrative Code
(NCAC) at section 02B .0612 (15A NCAC 02B .0612); NCFS 2020, p.1).
(15) Comment: One commenter noted that the Federal Highway
Administration (FHWA) has not consulted with the Service regarding the
Carolina madtom or Neuse River waterdog, or analyzed impacts to the
species before pursuing construction of the project in Wake/Johnston
Counties.
Our Response: While this comment is outside the scope of this
rulemaking, the FHWA/North Carolina Department of Transportation
(NCDOT) re-initiated section 7 consultation/conference with a revised
biological assessment for the Complete 540 project dated July 2019. The
Service issued a revised biological opinion (BO) for the Complete 540
project on October 15, 2019. This BO primarily concerned the dwarf
wedgemussel (Alasmidonta heterodon), yellow lance (Elliptio
lanceolata), Atlantic pigtoe (Fusconaia masoni), and proposed critical
habitat for the Atlantic pigtoe. However, we also concurred that the
project may affect, but is not likely to adversely affect, the Neuse
River waterdog. This conclusion was based primarily on the fact that
repeated surveys never found the species anywhere near the action area,
and the closest record was 5 to 6 miles downstream in Swift Creek.
FHWA/NCDOT determined the project would have no effect on the Carolina
madtom since the species is not currently considered present in or near
the action area. Therefore, there was no consultation/conference for
the Carolina madtom.
(16) Comment: When the Service proposes critical habitat for these
species, it should take into consideration the economic benefits of
protecting habitat for the species, including ecosystem services, the
protection of clean water, the reduced cost of water treatment for
drinking water supplies, and public health benefits.
Our Response: As noted in the draft economic analysis (DEA), the
primary intended benefit of critical habitat is to support the
conservation of endangered and threatened species, such as the Carolina
madtom and Neuse River waterdog. In order to quantify and monetize
direct benefits of the designation, information would be needed to
determine both the incremental change in the probability of madtom or
waterdog conservation expected to result from the critical habitat
designation and the public's willingness to pay for such beneficial
changes. The conclusion was that additional project modifications to
avoid adverse modification of critical habitat for either the Carolina
madtom or Neuse River waterdog are not anticipated. Analysis of
ecosystem services, such as clean water, or broad benefits of ecosystem
services to human populations that may result from critical habitat
designations are generally outside the scope of economic considerations
for the designation of Carolina madtom and Neuse River waterdog
critical habitat, primarily because the uncertainties associated with
monetary quantification of these benefits are large.
(17) Comment: One commenter suggested that the Service consider the
protection of these species to be an environmental justice issue. The
commenter provided the U.S. Environmental Protection Agency (EPA)
definitions of ``environmental justice'' (i.e., the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies), ``fair treatment'' (i.e., no group of people should bear a
disproportionate share of the negative environmental consequences
resulting from industrial, governmental, and commercial operations or
policies), and ``meaningful involvement'' (i.e., people have an
opportunity to participate in decisions about activities that may
affect their environment and/or health; the public's contribution can
influence the regulatory agency's decision; their concerns will be
considered in the decision making process; and the decision makers seek
out and facilitate the involvement of those potentially affected). The
commenter further stated that protecting these species and their
habitats is an environmental justice imperative, and would have
positive benefits for public health and well-being in the Coastal Plain
of North Carolina and beyond.
Our Response: For listing actions, the Act requires that we make
determinations ``solely'' on the basis of the best available scientific
and commercial data available (16 U.S.C. 1533(b)(1)(A)). Still, we
recognize the indirect benefits, including the aesthetic, recreational,
and overall health benefits of listing species and designating critical
habitat, that this rule may provide for all human communities
surrounding and including the habitats that both species occupy.

Neuse River Waterdog

(18) Comment: One commenter stated that the Neuse River waterdog
should be listed as endangered because of the threat of climate change.
Our Response: As described below in Neuse River Waterdog: Status
Throughout All of Its Range and in Neuse River Waterdog: Status
Throughout a Significant Portion of Its Range, we considered whether
the Neuse River waterdog is presently in danger of extinction
throughout all or a significant portion of its range and determined
that endangered status is not appropriate for the species' entire range
or for a portion of its range. The current conditions as assessed in
the Neuse River waterdog SSA report show that the species exists in
nine MUs over three different populations (river systems) over a
majority (65 percent) of the species' historical range. The Neuse River
waterdog still exhibits representation across both physiographic
regions, and extant populations remain across the range. In short,
while the primary threats are currently acting on the species and many
of those threats are expected to continue into the future, we did not
find that the species is currently in danger of extinction throughout
all or a significant portion of its range.
(19) Comment: Several commenters indicated that they support the
listing of the Neuse River waterdog (and Carolina madtom), as well as
the designation of critical habitat to protect and recover both
species. However, while they supported the listing and designation of
critical habitat, they opposed the 4(d) rule, stating that it would
severely limit the effectiveness of other conservation

[[Page 30693]]

measures and reduce the likelihood of survival and recovery. One
commenter mentioned that the proposed exceptions in the 4(d) rule
concerning silviculture practices are an inappropriate and unlawful use
of a 4(d) rule and that the Service's proposal to provide for the
conservation needs of these sensitive aquatic species via ``BMPs'' and
Sustainable Forestry Initiative/Forest Stewardship Council/American
Tree Farm System certification standards is not a serious one. The
commenters indicated that the proposed 4(d) rule fails to set forth a
protective regulation that provides for the specific conservation needs
of the Carolina madtom and Neuse River waterdog.
Our Response: Section 4(d) of the Act states that the Secretary
shall issue such regulations as he or she deems necessary and advisable
to provide for the conservation of species listed as threatened.
Section 4(d) of the Act provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. As described
below under II. Final Rule Issued Under Section 4(d) of the Act for the
Neuse River Waterdog, the provisions of our 4(d) rule will 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. The prohibitions
and exceptions to the prohibitions identified in the 4(d) rule are
considered necessary and advisable for the conservation of the Neuse
River waterdog.
Development and refinement of forest management BMPs has resulted
in substantial improvements to forestry's impacts on water quality in
recent decades, and the reduced risks of these practices to water
quality justify the Service's inclusion of a 4(d) exception for
forestry for the Neuse River waterdog. North Carolina Forestry BMPs,
properly implemented, protect water quality and help conserve aquatic
species, including the Neuse River waterdog.
The Service has determined that the Carolina madtom meets the
definition of an endangered species, and the Act does not allow
issuance of a 4(d) rule for a species listed as endangered.
(20) Comment: Several comments we received during the reopened
comment period (July 30-August 31, 2020), including from the NCFS,
indicated the Service did not explain or justify the necessity for a
two-zoned SMZ, SMZs wider than those already recommended by State
forestry BMPs within the geographic range of Neuse River waterdog, or
the application of SMZs related to Virginia and North Carolina trout
waters to waters where the Neuse River waterdog occurs. Some comments
further suggested that references to trout rules or BMPs beyond those
already required within the range of Neuse River waterdog would be
confusing and challenging to implement. Several such comments further
questioned any additional conservation benefits that SMZs wider than
those currently recommended in State BMPs would provide.
Our Response: It was the Service's intent to provide additional
discussion and explanation for the exception under 4(d) resulting from
incidental take from certain forestry practices, based on comments
received on the May 22, 2019, proposed rule (84 FR 23644). During that
comment period, we received several comments stating that the proposed
4(d) rule language, referring to ``highest standard BMPs'' was too
vague or confusing. By referring to BMPs related to trout waters
(specifically SMZs), it was the Service's intent to use a frame of
reference that would be familiar to forest landowners and managers for
species sensitive to sedimentation and thermal effects on stream waters
to better explain how the exception would apply, but not to apply those
particular parameters. Comments that mentioned trout rules seemed to be
referring to the preamble language, rather than the regulation text.
The proposed regulation text outlined BMPs, but did not include
references to trout. However, we understand that the references to
trout waters in the preamble has caused confusion for multiple reasons,
in part because the Neuse River waterdog occurs in a region different
from trout, and it was not clearly stated how the Neuse River waterdog
is similarly sensitive to sedimentation (a primary factor responsible
for the derivation of BMPs specific to trout waters). There was also
confusion as a result of multiple other regulations and recommended
practices that already exist in the Neuse and Tar watersheds where the
species occurs (i.e., riparian buffer rules and North Carolina's FPGs)
and for which the NCFS maintains a BMP manual with recommended
practices for meeting compliance with FPGs. The concerns of the
commenters have been carefully considered and addressed by revising the
4(d) rule to specify the habitat management goals necessary to provide
for the breeding, feeding, and sheltering needs of the Neuse River
waterdog, rather than prescribing a particular management practice with
which to achieve necessary habitat protection (e.g., we removed the
two-zoned SMZs of variable width; see II. Final Rule Issued Under
Section 4(d) of the Act for the Neuse River Waterdog, below, for
revisions).
(21) Comment: A couple of commenters stated that SMZs are part of a
suite of BMPs and that they should not be proposed alone, indicating
that we should include mention of all BMPs in the exception for
incidental take.
Our Response: We agree with this comment and note that the Service
proposed the exception under section 4(d) for incidental take from
certain forestry practices to include multiple State-approved BMPs,
highlighting considerations for SMZs because of their importance to
stream habitat, along with considerations for stream crossings, skid
trails, and access roads. However, during both comment periods,
commenters have demonstrated particular concern over that portion of
the proposed exception on forestry SMZs. As noted in the previous
response, we have revised this exception for incidental take under
section 4(d) by removing the requirement of a two-zoned SMZ; the
revision now includes exceptions for take associated with practices
following forestry BMPs so that it will not add confusion and will be
more practical to implement along with existing FPGs and State-
recommended BMPs, while also promoting conservation of Neuse River
waterdog and its habitat.
(22) Comment: We received many comments stating that State-approved
BMPs are sufficient for the protection of the Neuse River waterdog
because BMP implementation rates are high. They indicate that because
BMP implementation rates are high, we should provide an exception for
incidental take for all State-approved BMPs.
Our Response: We agree that when used and properly implemented,
BMPs can offer a substantial improvement to water quality compared to
forestry operations where BMPs are not properly implemented; it is for
this reason that the Service has included an exception for incidental
take for forest management that adheres to BMPs in the 4(d) rule for
the Neuse River waterdog. The commenters provided information that
indicates rates of forestry BMP implementation across the Southeast,
and the nation, are generally high. We agree but assert that forest
management is not risk-free for wildlife or water quality. Some studies
focused on the effects of silvicultural activities on aquatic
salamanders have found that

[[Page 30694]]

logging-related sedimentation can reduce larval and adult abundance
(Lowe et al. 2004, p. 167; Moseley et al. 2008, pp. 303-305), or have
synergistic impacts on populations when combined with other stressors
(e.g., predatory fishes; Lowe et al. 2004, pp. 167-170), and that wide
(~100 ft (30 m)) riparian buffers are needed to offer similar
protection as unharvested sites, while narrow (~30 ft (9 m)) buffers
had similar effects on salamanders as no buffer at all (Peterman &
Semlitch 2009, pp. 10-13). The most recent survey of BMP implementation
in North Carolina showed that implementation rates--while averaging 84
percent Statewide and averaging 88-90 percent in the Neuse and Tar-
Pamlico River basins--did vary among regions within the State, and they
varied with respect to the type of BMP being evaluated (Coats 2017, pp.
8-41). The NCFS reported that BMPs were not applied or properly
implemented in 4,584 opportunities in their assessments, and that 30
percent of these cases posed a risk to water quality (Coats 2017, p.
8). The NCFS also reported that 74 percent of all identified risks to
water quality were associated with the lack of application or improper
implementation of BMPs related to stream crossings (average
implementation rate = 79 percent; range 72-83 percent), SMZs (average
implementation rate = 86 percent; range 72-91 percent), and post-
harvest rehabilitation of a site (average implementation rate = 71
percent; range 53-83 percent) (Coats 2017, pp. 8, 9, 18-19, 26-34).
Such incidents of improperly implemented or unused BMPs and their
associated risks to water quality and habitat are important to
acknowledge in the context of rare, imperiled species, where any one
particular localized event may result in further imperilment of a
population and set back recovery of the species. Accordingly, we cannot
assume that BMPs will unequivocally be implemented.
Development and refinement of BMPs has resulted in substantial
improvements to forestry's impacts on water quality in recent decades
and has created a culture of water stewardship in the forest landowner
community, making this stakeholder group an important ally in the
conservation of imperiled species. The reduced risks to water quality
justify the Service's inclusion of an exception for incidental take
associated with forestry BMPs in the 4(d) rule for the Neuse River
waterdog, and the remaining presence of risk supports the need to
specify conditions required for the exception to apply. Incidental take
associated with forest management activities in the range of Neuse
River waterdog that do not meet the conditions of the exception in the
4(d) rule may still occur via consultation with the Service under
section 7, or a conservation agreement under section 10, of the Act.
Because BMPs in North Carolina are voluntary, existing BMPs will be
sufficient for the protection of the Neuse River waterdog if, and only
if, they are widely implemented in watersheds where the species occurs
and are implemented appropriately such that all forest management
operations maintain compliance with North Carolina's FPGs and achieve
management goals related to conserving and maintaining suitable habitat
for the Neuse River waterdog (which closely mirror the FPG
requirements). North Carolina Forestry BMPs, properly implemented,
protect water quality and help conserve aquatic species, including the
Neuse River waterdog. Forest landowners who properly implement those
BMPs are helping conserve the waterdog, and this 4(d) rule is an
incentive for all landowners to properly implement BMPs to avoid any
take implications. Further, those forest landowners who are third-
party-certified to a credible forest management standard are providing
audited certainty that BMP implementation is taking place across the
landscape; thus, the exception for incidental take in the 4(d) rule
will apply to their forestry activities.
(23) Comment: Some of the comments about BMPs being sufficient (see
(24) Comment, above) further suggested that assessments of water
quality using aquatic insects as indicators confirm that BMPs are
protective of water quality and habitat for aquatic species. Therefore,
BMPs are sufficient for protecting Neuse River waterdogs as well.
Our Response: Much of the literature shared by commenters on the
effectiveness of BMPs for protecting aquatic species and their habitats
relies on aquatic macroinvertebrate assessments, mostly of aquatic
insects. While they are a common rapid field assessment method for
monitoring or measuring water quality, current scientific information
does not support the assumption made by several commenters that
presence or recovery of insects is a proxy for suitable habitat
recovery after disturbance (i.e., a sedimentation event) for aquatic
salamanders like the Neuse River Waterdog, or a proxy for
recolonization of waterdogs after such a disturbance. While reliance on
effects to aquatic insect communities is a useful rapid assessment tool
for water quality, there is a gap in the best available science about
how that resilience relates to comparatively long-lived vertebrates,
such as salamanders (e.g., Neuse River waterdog). Some research
comparing how macroinvertebrate assessments relate to those of other
taxa (e.g., amphibians, fishes, or zooplankton) indicates that they do
not correspond well in evaluations of watershed land use or
anthropogenic effects on water quality and water resources (e.g.,
Brazner et al. 2007, pp. 625-627; Kovalenko et al. 2019, entire;
Herlihy et al. 2020, entire). Further, some studies recommend using
assessments from multiple taxa to better evaluate the response of
biological integrity in streams to anthropogenic activities (Herlihy et
al. 2020, p. 10; Hughes et al. 2000, pp. 437-440). Since aquatic
amphibians are long-lived and exhibit a high degree of site fidelity,
these taxa may be a more reliable indicator of stream condition than
macroinvertebrates or fishes (Welsh and Ollivier 1998, pp. 1128-1129).
The risks of water quality impacts to many taxa highlighted the utility
of aquatic insect assessments for evaluating forestry BMPs, along with
the need for research on forestry BMP effectiveness for the protection
of taxa other than aquatic insects (Warrington et al. 2017, entire).
Most aquatic insects are not considered rare species, and
immigration by aquatic insects back into an affected stream reach may
be facilitated by downstream drift or other mechanisms, including the
adult winged flight stage, which allows immigration from other nearby
waterbodies or from downstream reaches. The Neuse River waterdog is a
rare, obligate aquatic salamander with different ecological
requirements and a decades-long lifespan, compared to the shorter
lifespan and aquatic larval phase of macroinvertebrate insects
typically emphasized in assessments (e.g., aquatic phases ranging less
than 1 to 2 years for many mayflies (Ephemeroptera; Voshell 2002, p.
270); 1 to 2 years for many stoneflies (Plecoptera; Voshell 2002, p.
310); less than 1 to 2 years for most caddisflies (Trichoptera; Voshell
2002, p. 375)). Extirpation of the Neuse River waterdog from a stream
reach after an impact to the population (e.g., a sedimentation event
that kills eggs or renders leaf packs unsuitable as foraging habitat)
would have lasting consequences, and recolonization can be hampered by
factors that are less problematic for non-rare aquatic insect species,
such as instream barriers to migration, distance to the next

[[Page 30695]]

population, permanent or long-term alteration of streambed habitat that
reduces its suitability for supporting the species (e.g., filling of
habitat crevices used for nesting and home range retreats with fine
sediments), and a much longer generation time than most insects
(approximately 6 years; Service 2021b, p.7).
(24) Comment: Some commenters stated that the Service did not
provide evidence that the Neuse River waterdog is a sensitive species,
and at least one commenter stated that failure to describe its
sensitivity or similarity to trout sensitivity is arbitrary and
capricious.
Our Response: As discussed above, the Act requires that we make
determinations solely on the basis of the best available scientific and
commercial data available (16 U.S.C. 1533(b)(1)(A)). In making these
determinations, we consider the ecological requirements of the species
and how they are affected by the various factors. We included several
details related to the ecological requirements of the Neuse River
waterdog (e.g., flow, dissolved oxygen), referenced the SSA report, and
included a summary of risk factors to the species in the proposed rule
published on May 22, 2019 (84 FR 23644). We further provided
information in the document published on July 30, 2020 (85 FR 45839),
including statements on the effects of sedimentation (e.g., ``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 (Service 2021b, p. 8)'' (85 FR 45839, July 30, 2020, p.
85 FR 45843)). The commenters may not have realized that the July 30,
2020, document presenting revisions to the proposed rule was not a
complete reproposal; it presented only the substantive proposed
revisions to the May 22, 2019, proposed rule. However, the concerns of
the commenters have been carefully considered and addressed by removing
references to trout and revising the final rule and SSA report to
include more detailed information about the Neuse River waterdog, its
habitat requirements, and sensitivity to threats, particularly
sedimentation, using the best available scientific information about
this species and relevant information from related species (i.e.,
gilled, aquatic salamanders). These revisions provide evidence and
justification that the Neuse River waterdog is a sensitive species in
need of protection from risk factors that threaten survival,
persistence, and habitat.
(25) Comment: A few commenters highlighted proposed or final rules
for other aquatic species that they say indicate a Service precedent
for accepting State-approved forestry BMPs as sufficient for protection
of a species (i.e., they appear as an exception to the take
prohibition) in a 4(d) rule. They indicated this precedent should apply
to the 4(d) rule for Neuse River waterdog. Two related comments
expressed concern that this rule would set a precedent not founded in
the best available scientific information, if finalized with forest
management requirements in the 4(d) exceptions that exceed State-
recommended BMPs for the areas in which the Neuse River waterdog
occurs.
Our Response: First, 4(d) rules for threatened species are intended
to establish species-specific regulations to provide for the
conservation of a threatened species, and may incentivize beneficial
actions for the species and reduce the regulatory burden on forms of
take that are compatible with the conservation of the species. The 4(d)
rules provide protection necessary and advisable to conserve the Neuse
River waterdog by outlining prohibitions for the protection of the
species, and if appropriate, any exceptions from the prohibitions. The
species-specific nature of the rules indicates they do not set a
precedent for other species. It may be practical to consider
implications of how 4(d) rules are implemented for species that have
overlapping geographic ranges and habitat needs, but we do not agree
with the premise that any 4(d) rule sets a precedent for another
species. Second, several of the comments referenced language that was
not provided in the context of discussions for threatened species and a
4(d) rule and is irrelevant in this context. For example, commenters
referenced language that refers to Alabama's forestry BMPs in the
Summary of Factors Affecting the Species discussion in the final rule
listing the Black Warrior waterdog (Necturus alabamensis) as endangered
(83 FR 257, January 3, 2018, see p. 83 FR 263). Other comments we
received referred to language for critical habitat designation--not for
species listing and 4(d) rules--that listed BMPs among activities that
can ameliorate threats to critical habitat. Comments also referenced
the pearl darter (Percina aurora), a species listed as threatened in
2017 when the blanket 4(d) rule applied, extending all endangered
species protections to threatened species; that listing rule (82 FR
43885; September 20, 2017) included silviculture with BMPs among
actions unlikely to result in a violation of the Act's section 9, and
it also listed poor silviculture among the factors affecting the
species. Finally, some comments referenced the trispot darter
(Etheostoma trisella), which is a threatened species with a species-
specific 4(d) rule that includes an exception to the incidental take
prohibitions for take associated with silviculture. The final 4(d) rule
for the trispot darter (85 FR 61614; September 30, 2020) includes an
exception for incidental take resulting from silviculture practices and
forest management activities. Conditions of this exception include
requirements for implementing State BMPs for SMZs, stream crossings,
and forest roads, among others; removal of logging debris from
channels; and a temporal window that only allows for the exception
outside of that species' spawning season (i.e., the exception only
applies for a portion of the year). Although the trispot darter final
4(d) rule is the most relevant among the commenters' examples (i.e., a
threatened species with a 4(d) rule exception for silviculture), the
Service is required to make the listing determination for the Neuse
River waterdog based on the best available science and develop a
species-specific 4(d) rule based on what is necessary and advisable to
provide for the conservation this particular species. The Service's
offices operate within discrete geographic regions, in part, to
facilitate partnerships with State and other Federal agencies, Tribal
communities, industry, and other nongovernmental organizations in their
work area; through these partnerships, we are well poised to consider
existing local environmental rules, local environmental conditions, and
other factors, and to tailor the management needs of species.
Prohibitions and exceptions for a threatened species outlined in its
4(d) rule are specific to the considerations for that particular
species.
The species-specific nature of 4(d) rules is inherently resistant
to precedent setting, because the Service must consider the needs of
the species being listed as threatened and issue regulations deemed
necessary and advisable to provide for the conservation of that
species. The proposed 4(d) rule for the Neuse River waterdog did not
prescribe management restrictions; rather, it outlined prohibitions
(e.g., take) to ensure the species and its habitat are not adversely
affected, and exceptions to those prohibitions for incidental take
resulting from activities that are not expected to adversely affect the
species, and may

[[Page 30696]]

provide conservation benefits. The 4(d) exceptions provide specific
information on the conditions required for being excepted from
incidental take; they do not prohibit other forms of silvicultural
management. Those activities not falling within the stated exceptions
simply would require consultation with the Service under section 7, or
a conservation agreement under section 10, of the Act. The 4(d) rule's
exceptions, including the conditions necessary to meet those
exceptions, are intended to provide some relief from regulatory burden,
while avoiding adverse impacts to the species and adverse modification
of the species' habitat.
(26) Comment: Several commenters requested that the Service revise
the proposed 4(d) rule to remove language referring to BMPs we find
necessary for the conservation of the Neuse River waterdog and to only
reference State-approved BMPs without addition or modification.
Our Response: The Service's regulations typically do not refer to
non-Federal rules, regulations, or guidance because doing so would
result in an ``incorporation by reference,'' which means that the
referenced non-Federal document would be considered a de facto Federal
regulation, and each time that non-Federal document is updated or
revised, we would have to go through rulemaking to update our
regulations. Regulatory references are typically restricted to existing
conservation regulatory requirements for species under another Federal
statute or international agreement (e.g., Marine Mammal Protection Act
(MMPA; 16 U.S.C. 1361 et seq.); Convention on the International Trade
in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087)).
State-approved BMPs for forestry are not species conservation
regulatory requirements. Furthermore, the North Carolina Forestry BMP
manual does not represent a law or requirement; it is a set of
recommended practices for achieving compliance with North Carolina's
FPGs, and the manual is subject to change. In fact, the NCFS has
recently proposed revisions to the BMP manual (Gerow 2020, pers.
comm.); this highlights the need to provide specific information for
the conservation of a species in the text of the regulation. The Act
guides the Service to establish a species-specific 4(d) rule for
threatened species, including language stating the prohibitions and
potential exceptions for the protection of the species.
(27) Comment: During the reopened comment period (July 30-August
31, 2020), several commenters submitted form letters using identical
language stating that compliance with North Carolina's BMPs should be
sufficient to protect a landowner from prosecution for an illegal take
of the Neuse River waterdog.
Our Response: Illegal take of a species under protection of the Act
is always prohibited. Take is only allowed by individuals who have
appropriate permits or whose activities are covered by exceptions for
incidental take; 50 CFR 17.3 defines ``incidental taking'' as any
taking otherwise prohibited, if such taking is incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity. The
4(d) rule for the Neuse River waterdog applies all of the Act's section
9 take prohibitions, with certain exceptions from those prohibitions,
including incidental take associated with four activity categories
(species recovery by State agencies, channel restoration projects, bank
stabilization projects, and silvicultural practices and forest
management activities). To meet the 4(d) rule exception, maximum and
proper implementation of State-approved BMPs is required and will
ensure the excepted activity will avoid any take implications. However,
we emphasize that illegal take (i.e., activities not covered by an
exception or by consultation with the Service) is prohibited.
(28) Comment: During the reopened comment period (July 30-August
31, 2020), two commenters, including the NCFS and VDOF, offered
alternative language for the entirety of the silvicultural component of
the proposed 4(d) rule. They noted that this alternative language was
drafted with the intent of applicability in targeted watersheds of the
eastern Piedmont and Upper Coastal Plain regions of North Carolina. The
alternative language states an exception to the take prohibitions for:
Forestry-related activities, including silvicultural practices, forest
management work, and fire control tactics, that achieve all of the
following: (1) Establish a streamside management zone alongside the
margins of each occupied waterway; (2) restrain visible sedimentation
caused by the forestry-related activity from entering the occupied
waterway; (3) maintain groundcover within the streamside management
zone of the occupied waterway, and promptly re-establish groundcover if
disturbed; (4) limit installation of new vehicle or equipment crossings
of the occupied waterway to only where necessary for the forestry-
related activity. Such crossings must have erosion and sedimentation
control measures installed to divert surface runoff away and restrain
visible sediment from entering the waterway, allow for movement of
aquatic organisms within the waterway, and have groundcover applied and
maintained through completion of the forestry-related activity; (5)
prohibit the use of tracked or wheeled vehicles for reforestation site
preparation within the streamside management zone of the occupied
waterway; (6) prohibit locating log decks, skid trails, new roads, and
portable mill sites in the streamside management zone of the occupied
waterway; (7) prohibit obstruction and impediment of the flow of water,
caused by direct deposition of debris or soil by the forestry-related
activity, within the occupied waterway; (8) maintain shade over the
occupied waterway similar to that observed prior to the forestry-
related activity; and (9) prohibit discharge of any solid waste,
petroleum, pesticide, fertilizer, or other chemical into the occupied
waterway.
Our Response: The Service agrees with the comment and has revised
the 4(d) rule language to reflect these suggested changes for the
forestry exception. We recognize forestry management that implements
State-approved BMPs protects water quality, and we realize that, in
order to meet specific goals, flexibility is needed with regard to
which BMPs are used during management. This final 4(d) rule provides
practitioners the flexibility to choose which BMPs to use in their
forestry activities while providing for the conservation of the
species. We emphasize here that we deemed those revisions necessary
because of concerns about confusion and challenging implementation
related to multiple sets of forestry-related rules and guidelines
already in place within the geographic region of Neuse River waterdog.
As revised, this exception to incidental take prohibition, when
properly implemented, will promote forestry management activities while
also providing for the conservation the Neuse River waterdog.
(29) Comment: One commenter recommended that the Service remove
references to silviculture being a potential source of pollution in the
description of critical habitat units, indicating that the forestry
sector in general believes that, although statements about
silvicultural runoff as a source of pollution may have had some
credence a generation or more ago, the advent of BMPs, their proven
effectiveness, and their high implementation rates call for the
elimination of these statements, and those similar to it, in a modern
4(d) rule.

[[Page 30697]]

Our Response: The Service acknowledges that there are multiple
sources of sedimentation and other pollutants; we have removed the
statements about silvicultural runoff as a source of pollution and
replaced it with language about management activities that will benefit
habitat for the species in the description of critical habitat units.
In addition, we agree that the best available science indicates that
proper implementation of forestry BMPs reduces negative effects on
water quality outcomes compared to historical silvicultural practices
or those that do not apply or properly implement BMPs. Although BMPs
generally are implemented at high rates, they are not universally
applied or always properly implemented, and forest management
activities can still contribute to sediment pollution in a watershed.
As noted in our response to (22) Comment, above, the most recent
assessment of BMP implementation by the NCFS reported that the majority
of risks to water quality identified during the assessment were
associated with forest managers' failure to use or properly apply BMPs
related to SMZs, stream crossings, and post-harvest restoration (Coats
2017, pp. 8-34). Moreover, as noted in our response to (23) Comment,
above, metrics for BMP effectiveness are often associated with
responses of macroinvertebrate insects; while such metrics are useful,
there is no evidence to support that insect metrics capture the
responses of benthic vertebrates, such as the Neuse River waterdog, to
the effects of sedimentation on their habitat. One study examining the
effects of silvicultural practices on salamanders reported that larval
salamander abundance was negatively associated with stream
embeddedness, as a result of sedimentation, at the reach scale, and
overall, larval salamander abundance decreased with increasing
harvested timber volume and increased with time after harvests (Moseley
et al. 2008, pp. 303-305).

I. Final Listing Determinations

Background

Carolina Madtom

A thorough review of the taxonomy, life history, and ecology of the
Carolina madtom is presented in the SSA report (Service 2021a, pp. 5-
8).
The Carolina madtom (Noturus furiosus) is a moderate-sized catfish
with a short, chunky body and a distinct color pattern of three dark
saddles and a wide black stripe along its side. Furiosus means ``mad''
or ``raging,'' as the Carolina madtom is the most strongly armed of the
North American catfishes with stinging spines containing a potent
poison in their pectoral fins. They are found in medium to large
flowing streams of moderate gradient in both the Piedmont and Coastal
Plain physiographic regions in the Neuse and Tar River basins. Suitable
instream habitats are described as riffles, runs, and pools with
current, and during the warm months the madtoms are found in or near
swift current at depths of 1.0 to 3.0 feet (0.3 to 0.9 meters). Stream
bottom substrate composition is important for benthic Carolina madtoms;
leaf litter, sand, gravel, and small cobble are all common substrates
associated with the species, although it is most often found over sand
mixed with pea-sized gravel and leaf litter. During the breeding
season, Carolina madtoms shift to areas of moderate to slow flow with
abundant cover used for nesting.
The nesting season extends from about mid-May to late July. Nest
sites are often found under or in relic freshwater mussel shells, under
large pieces of water-logged tree bark, or in discarded beverage
bottles and cans partially buried on the stream bottom. The female
produces about 80 to 300 eggs, and the male guards the nest until the
eggs hatch. Clutch sizes average 152 larvae, and life expectancy for
these fish is at least 4 years.
The Carolina madtom is a bottom-dwelling insectivore that feeds
primarily during the night, with peaks at dawn and dusk. More than 95
percent of the food organisms in the Carolina madtom stomachs were
larval midges, mayflies, caddisflies, dragonflies, and beetle larvae
(Burr et al. 1989, p. 78).

Neuse River Waterdog

A thorough review of the taxonomy, life history, and ecology of the
Neuse River waterdog is presented in the SSA report (Service 2021b, pp.
5-10).
The Neuse River waterdog (Necturus lewisi) is a permanently aquatic
salamander species endemic to the Neuse and Tar-Pamlico River drainages
in North Carolina. The species occurs in riffles, runs, and pools in
medium to large streams and rivers with moderate gradient in both the
Piedmont and Coastal Plain physiographic regions. Neuse River waterdogs
are from an ancient lineage of permanently aquatic salamanders in the
genus Necturus, and one of three species of Necturus in North Carolina.
Similar to the endangered Black Warrior waterdog (Necturus alabamensis)
and several other permanently aquatic salamanders with similar life
history and ecology, stream bottom substrate composition is also
important for Neuse River waterdogs: Gravel, cobble, or coarse sand
substrates, with ample cover, that are free of fine sediments are
commonly associated with the species.
Neuse River waterdogs have a reddish-brown skin with black spots,
reaching up to 9 inches (in) in length as adults. Their underside is
brownish-grey, and they have external bushy dark red gills. They eat
large aquatic arthropods, aquatic and terrestrial invertebrates, and
even some vertebrates like small fish. Like most waterdogs, they are
opportunistic feeders who lie in wait for a small organism to swim or
float by. All prey are ingested whole, and larger items are sometimes
regurgitated and then re-swallowed.
Neuse River waterdogs are found in streams ranging from larger
headwater streams in the Piedmont to coastal streams up to the point of
saltwater intrusion. None have been found in lakes or ponds. They are
usually found in streams wider than 15 meters (m), deeper than 100
centimeters (cm), and with a main channel flow rate greater than 10 cm
per second. Further, they need clean, flowing water characterized by
high dissolved oxygen concentrations. The preferred habitats vary with
the season, temperature, dissolved oxygen content, flow rate, and
precipitation; however, the waterdogs maintain home retreat areas under
rocks, in burrows, or under substantial cover in backwater or eddy
areas. As with other permanently aquatic salamanders, when interstitial
spaces between substrates become compacted or filled with fine
sediment, the amount of available foraging habitat and protective cover
for salamanders is reduced, resulting in population declines (83 FR
257; January 3, 2018).
The longevity of Neuse River waterdogs is not known; however, their
close relative N. maculosus may live for 30 or more years. Like many
long-lived animals, breeding is delayed until a minimum body size is
reached, and they tend to grow slowly. Generation time for Neuse River
waterdogs is 10 to 15 years. They breed once per year, with mating in
the fall or winter and spawning in the spring. Females lay a clutch of
about 25-90 eggs, typically under large rocks with sand and gravel
beneath them, or under similar cover (e.g., logs, holes in banks) in
coastal rivers where rocky habitat is limited, and then guard the
rudimentary nest.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures

[[Page 30698]]

for determining whether a species is an ``endangered species'' or a
``threatened species.'' The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Our proposed rule described ``foreseeable future'' as the extent to
which we can reasonably rely on predictions about the future in making
determinations about the future conservation status of the species. The
Service since codified its understanding of foreseeable future in 50
CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. The Service will
describe the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat-projection timeframes,
and environmental variability. The Service need not identify the
foreseeable future in terms of a specific period of time. These
regulations did not significantly modify the Service's interpretation;
rather they codified a framework that sets forth how the Service will
determine what constitutes the foreseeable future based on our long-
standing practice. Accordingly, though regulations do not apply to the
final rule for the Carolina madtom and Neuse River waterdog because
they were proposed prior to their effective date, they do not change
the Service's assessment of foreseeable future for the Carolina madtom
and Neuse River waterdog as contained in our proposed rule and in this
final rule.

Analytical Framework

The SSA reports document the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of each species, including an assessment of the potential
threats to each species. The SSA report does not represent a decision
by the Service on whether the species should be proposed for listing as
an endangered or threatened species under the Act. It does, however,
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA reports; the full SSA
reports can be found at Docket No. FWS-R4-ES-2018-0092 and on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
To assess viability of Carolina madtom and Neuse River waterdog, we
used the three conservation biology principles of resiliency,
redundancy, and representation (Shaffer and Stein 2000, pp. 306-310).
Briefly, resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and

[[Page 30699]]

described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA process involved
making predictions about the species' responses to positive and
negative environmental and anthropogenic influences. Throughout all of
these stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of each
species and its resources, and the threats that influence each species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.

Carolina Madtom

To evaluate the current and future viability of the Carolina
madtom, we considered a range of conditions to allow us to assess the
species' resiliency, representation, and redundancy. We assessed
resiliency for the Carolina madtom using population factors (Management
Unit (MU) occupancy over time, approximate abundance, and recruitment)
and habitat elements (water quality, water quantity, habitat
connectivity, and instream substrate). For the purposes of this
assessment, populations were delineated using the same three river
basins that Carolina madtoms have historically occupied, namely the
Tar, Neuse, and Trent River basins. Populations were further delineated
using MUs, defined as one or more hydrologic unit code (HUC) 10
watersheds that species experts identified as the most appropriate unit
for assessing population-level resiliency. To assess resiliency, we
analyzed population factors as well as habitat elements that were
determined in our analysis of the species' needs to have the most
influence on the species. We then assessed the overall condition of
each population. Overall population condition rankings were determined
by combining the two population factors and four habitat elements. For
a more detailed explanation of the condition categories, see the SSA
report (Service 2021a, pp. 15-19).
Metrics that speak to a species' adaptive potential, such as
genetic and ecological variability, can be used to assess
representation. Representation for the Carolina madtom can be described
in terms of ecological variation seen in river basin variability (Tar,
Trent, and Neuse River basins) and physiographic variability (eastern
Piedmont and Coastal Plain). We assessed Carolina madtom redundancy by
first evaluating occupancy within each of the hydrologic units that
constitute MUs, and then we evaluated occupancy at the MU, and
ultimately the population level.
Current Condition of Carolina Madtom
The historical range of the Carolina madtom included streams and
rivers in the Tar-Pamlico, Neuse, and Trent basins, with documented
historical distribution in 31 HUC10s in 11 MUs across the three
populations (see Table 1, below). The results of surveys conducted from
2011 to 2018 suggest that the currently occupied range of the Carolina
madtom includes four MUs from two populations, corresponding to the Tar
and Neuse River basins; however, only one population (Tar) has multiple
documented occurrences within the past 5 years. The species has been
extirpated from the southern portion of its range, including a large
portion of the Neuse River basin and the entire Trent River basin. The
Carolina madtom currently occupies 9 of the 31 historically occupied
HUC10s (with ``currently'' defined as the observation of at least one
specimen from 2011 to 2018), 7 of which are in the Tar River basin and
2 in the Neuse River basin. At the population level, the overall
current condition (= resiliency) was estimated to be moderate for the
Tar population, very low for the Neuse population, and likely
extirpated for the Trent population.

Table 1--Population and Management Unit (MU) Naming for Carolina Madtom
------------------------------------------------------------------------
Population/management unit
-------------------------------------------------------------------------
Tar:
Upper Tar.
Middle Tar.
Lower Tar.
Fishing Creek Subbasin.
Sandy-Swift.
Neuse:
Upper Neuse.
Middle Neuse.
Lower Neuse.
Little River.
Contentnea Creek.
Trent:
Trent.
------------------------------------------------------------------------

We estimated that the Carolina madtom currently has low adaptive
potential due to limited representation in two river basins and two
physiographic regions. The species retains 33 percent of its known
river basin variability, considering greatly reduced variability
observed in the Neuse River population. In addition, compared to
historical occupancy, the species currently retains very limited
physiographic variability in the Coastal Plain (14 percent) and
moderate variability in the Piedmont (56 percent).
The range of the Carolina madtom has always been very narrow,
limited to the Tar, Neuse, and Trent River drainages. Within the
identified representation areas, the species retains redundancy within
the Tar River population (three MUs currently extant); however, it has
limited redundancy (two MUs extant) in the Neuse River population and
no redundancy (extirpated) in the Trent River population. Overall, the
species has lost 55 percent of its redundancy across its narrow,
endemic range.

Neuse River Waterdog

To evaluate the current and future viability of the Neuse River
waterdog, we assessed a similar range of conditions as described above
for Carolina madtom to allow us to consider the species' resiliency,
representation, and redundancy. As with the madtom, populations were
delineated using the three river basins that Neuse River waterdogs have
historically occupied (i.e., Tar-Pamlico, Neuse, and Trent River
basins). ``Tar-Pamlico'' refers to the lower portion of the Tar River
basin, which includes the Pamlico River. Because the river basin level
is at a very coarse scale, populations were further delineated using
MUs. MUs were defined as one or more HUC10 watersheds that species
experts identified as most appropriate for assessing population-level
resiliency. Resiliency is characterized, and overall population
condition rankings and habitat condition rankings were determined,
similarly as for the madtom.
Representation for the Neuse River waterdog can be described in
terms of the size and range of the river systems it inhabits (medium
streams to large rivers in three river basins), and

[[Page 30700]]

physiographic variability (Piedmont and Coastal Plain). Redundancy for
the Neuse River waterdog is defined as multiple highly resilient
populations (inclusive of multiple, resilient MUs) distributed
throughout the species' historical range. That is, highly resilient
populations, coupled with a relatively broad distribution, have a
positive relationship to species-level redundancy.
Current Condition of Neuse River Waterdog
The historical range of the Neuse River waterdog included third and
fourth order sized streams and rivers in the Tar-Pamlico, Neuse, and
Trent basins, with documented historical distribution in 40 HUC10s in
nine MUs across the three populations (see Table 2, below). Currently,
the Neuse River waterdog is extant in all nine identified MUs; however,
within those MUs, it is presumed extirpated from 35 percent (14 out of
40) of the historically occupied HUC10s, and another 25 percent of the
streams are in low or very low condition. Of the nine MUs, two (22
percent) are estimated to have high resiliency, three (33 percent)
moderate resiliency, and four (45 percent) low resiliency. At the
population level, one of three populations (Tar-Pamlico) is estimated
to have moderate resiliency, and two (Neuse and Trent) are estimated to
have low resiliency.

Table 2--Population and Management Unit (MU) Naming for Neuse River
Waterdog
------------------------------------------------------------------------
Population/management unit
-------------------------------------------------------------------------
Tar:
Upper Tar.
Middle Tar.
Lower Tar.
Sandy-Swift.
Fishing Creek Subbasin.
Neuse:
Upper Neuse.
Middle Neuse.
Lower Neuse.
Trent:
Trent.
------------------------------------------------------------------------

We estimated that the Neuse River waterdog currently has moderate
adaptive potential, primarily due to ecological representation in three
river basins and two physiographic regions. The species retains nearly
all of its known river basin variability; however, the variability
within the basins is reduced compared to historical distribution. In
addition, compared to historical occupancy, the species currently
retains moderate physiographic variability in the Coastal Plain (87
percent) and in the Piedmont (67 percent). However, the Piedmont has
experienced significant declines in occupancy, with nearly half of the
MUs losing species occurrences. Of the 16 historically occupied
Piedmont HUC10s, 7 are no longer occupied, and 9 have experienced loss.
Like the madtom, the range of the Neuse River waterdog has always
been very narrow, limited to the Tar-Pamlico, Trent, and Neuse River
drainages. Within the identified representation areas (i.e., river
basins), the species retains redundancy in terms of occupied HUC10s
within the Tar-Pamlico River population (82 percent) and the Neuse
River population (70 percent), but 67 percent of redundancy has been
lost in the Trent River population. Overall, the species has lost 27
percent (11 out of 40 historically occupied HUC10s) of its redundancy
across its narrow, endemic range.

Factors Influencing Viability of Neuse River Waterdog and Carolina
Madtom

Several natural and anthropogenic factors may impact the status of
species within aquatic systems. Generally, these factors can be
categorized as either environmental stressors (e.g., development,
agriculture practices, or forest management) or systematic changes
(e.g., climate change, invasive species, dams or other barriers). The
largest threats to the future viability of the Carolina madtom and
Neuse River waterdog involve habitat degradation from stressors
influencing the four habitat elements: Water quality, water quantity,
instream habitat, and habitat connectivity. All of these factors are
exacerbated by the effects of climate change. A brief summary of these
primary stressors is presented below; for a full description of these
stressors, refer to chapter 4 of the SSA report for each species.
Development and Pollution
Development refers to urbanization of the landscape, and the
effects of urbanization may include alterations to water quality, water
quantity, and habitat (both instream and streamside) (Service 2021ab,
p. 40). Urbanization increases the amount of impervious surfaces, such
as paved roads, parking lots, roofs, and even highly compacted soils
like sports fields. Impervious surfaces prevent the natural soaking of
rainwater into the ground and slow seepage into streams. Instead, the
rainwater accumulates and flows rapidly into storm drains, which drain
as runoff to local streams. This degrades stream habitat in three ways:
Water quantity (high flow during storms), water quality (sediment and
pollutants washing into streams), and increased water temperatures due
to the surfaces heating the water. Sedimentation, including short-term
storm events, has been shown to reduce survival (Honeycutt et al. 2016,
pp. 766-767), limit juvenile abundance (Bendik and Dries 2018, pp.
5916-5920), reduce body size (Gray et al. 2004, p. 719), or result in a
significant decline in aquatic salamander density in streams (Welsh and
Ollivier 1998, pp. 1123-1128; Welsh et al. 2019, pp. 7-10).
Concentrations of contaminants, including nitrogen, phosphorus, salts,
insecticides, polycyclic aromatic hydrocarbons, and personal care
products, increase with urban development (Giddings et al. 2009, p. 2;
Bringolf et al. 2010, p. 1,311). Water infrastructure development,
including water supply, reclamation, and wastewater treatment, results
in several pollution point discharges to streams.
Increasing urbanization results in more road development. By its
nature, road development increases impervious surfaces, as well as land
clearing and habitat fragmentation. Roads are generally associated with
negative effects on the biotic integrity of aquatic ecosystems,
including changes in surface water temperatures and patterns of runoff;
sedimentation; and adding heavy metals (especially lead), salts,
organics, ozone, and nutrients to stream systems (Trombulak and
Frissell 2000, p. 18). These changes affect stream-dwelling organisms
such as the Carolina madtom and Neuse River waterdog by displacing them
from once-preferred habitats, as well as increasing exposure and
assimilation of pollutants that can result in growth defects, decreased
immune response, and even death. In addition, a common impact of road
development is improperly constructed culverts at stream crossings.
These culverts act as barriers, either because stream flow through the
culvert varies significantly from the rest of the stream or because the
culvert ends up being perched, so that aquatic organisms such as these
species cannot pass through them.
Carolina madtoms and Neuse River waterdogs prefer clean water with
permanent flow and are not tolerant of siltation and turbidity. Benthic
vertebrates, such as the madtom and waterdog, have disproportionate
rates of imperilment and extirpation due to pollution because stream
bottoms are often the first habitats affected, particularly by
sedimentation. Sedimentation increases embeddedness of stream
substrates, making it more difficult for madtoms or salamanders to

[[Page 30701]]

burrow (Unger et al. 2020, pp. 121-122) and leaving them more exposed
(e.g., to predation). Excess sedimentation influences nest site
selection and reduces habitat availability (Guy et al. 2004, pp. 80-82,
85) and is related to a reduction in current distribution of
salamanders compared to historical occupancy of sites (Quinn et al.
2013, pp. 78, 81-82). Furthermore, the Carolina madtom is classified as
an ``intolerant'' species according to the North Carolina Division of
Water Resources (NCDWR), meaning the species is most affected by
environmental perturbations (NCDWR 2013, p. 19). Fine sediments can
influence the survival, distribution, and abundance of Neuse River
waterdog by ``reduc[ing] the availability of food and cover, and
hinder[ing] reproduction by smothering nests and eggs'' (Braswell and
Ashton 1985, p. 28).
All three of the river basins within the range of the Carolina
madtom and Neuse River waterdog are affected by development, from an
average of 7 percent in the Tar River basin to an average of 13 percent
in the Neuse River basin (based on the 2011 National Land Cover Data).
The Neuse River basin contains one-sixth of the entire State's human
population, indicating heavy development pressure on the watershed. The
Middle Neuse MU contains 182 impaired stream miles, 9 major discharges,
272 minor discharges, and nearly 4,000 road crossings, all affecting
the quality of the habitat for both species. The Middle Neuse is also
31 percent developed, with nearly 8 percent impervious surface, which
changes natural streamflow, reduces appropriate stream habitat, and
decreases water quality throughout the MU. For complete data on all of
the populations, refer to appendices A and D of the SSA reports.
Agricultural Practices
The main impacts to the Neuse River waterdog and Carolina madtom
from agricultural practices occur from water pumping for irrigation and
when best management practices (BMPs) for conservation are not
followed, causing sedimentation, and nutrient and chemical pollution.
Sedimentation can fill interstitial spaces of streambed substrates,
altering habitat suitability of nesting and retreat sites for madtoms
and waterdogs; it can coat leaf litter, diminishing or destroying
waterdog foraging habitat; and it can smother and kill eggs.
Sedimentation from agriculture has been linked to reduced body size in
salamanders and other amphibians (Gray 2002, pp. 23-34, 48, 105; Gray
et al. 2004, pp. 719, 727). Fertilizers and animal manure, which are
both rich in nitrogen and phosphorus, are the primary sources of
nutrient pollution from agricultural sources. Excess nutrients impact
water quality when it rains or when water and soil containing nitrogen
and phosphorus wash into nearby waters or leach into the water table or
groundwater. Confined animal feeding operations and feedlots can cause
degradation of aquatic ecosystems and may cause direct effects to the
species (e.g., death resulting from hypoxia), primarily because of
manure management issues. Fertilized soils, manure, and livestock can
be significant sources of nitrogen-based compounds like ammonia and
nitrogen oxides. Ammonia can be harmful to aquatic life when
concentrated in surface waters. For madtoms and waterdogs, excess
ammonia can cause a number of problems, including alteration of
metabolism, injury to gill tissue, and reduced growth rates. Extreme
levels of ammonia can cause death.
Excessive water withdrawal or water withdrawal done illegally
(without the necessary permit, during dry times of year) may cause
impacts to the amount of water available to downstream sensitive areas
during low flow months, resulting in dewatering of channels and
displacement of fish and permanently aquatic salamanders, leading in
turn to potential desiccation and death. According to the 2011 National
Land Cover Data, all of the watersheds within the range of the Carolina
madtom and Neuse River waterdog are affected by agricultural land uses,
most with 25 percent or more of the watershed having been converted for
agricultural use.
Forest Management
Silvicultural activities, when performed according to strict forest
practices guidelines (FPGs) or BMPs, can retain adequate conditions for
aquatic ecosystems; however, when FPGs/BMPs are not followed or if they
fail, these practices can also contribute to the myriad of stressors
facing aquatic systems in the Southeast, including North Carolina. Both
small- and large-scale clearing of forests have been shown to have a
significant impact upon the physical, chemical, and biological
characteristics of adjacent small streams (Allan 1995, pp. 324-327;
Valente-Neto 2015, p. 116). Clearcutting and harvests in riparian
systems can eliminate shade provided by forest canopies, exposing
streams to more sunlight and increasing the instream water temperature
(Swift and Messer 1971, p. 111; Hewlett and Forston 1982, p. 983; GB
Rishel 1982, p. 112; Lynch et al. 1984, p. 161; Allan 1995, p. 325;
Keim and Shoenholtz 1999, p. 197; Carroll et al. 2004, p. 275; B.D.
Clinton 2011, p. 979; Caldwell et al. 2014, p. 3). The increase in
stream temperature and light after deforestation alters the
macroinvertebrate and other aquatic species richness and abundance
composition in streams (Wenger 1999, p. 35; Caldwell et al. 2014, p.
3). As stated above, both the Neuse River waterdog and Carolina madtom
are sensitive to changes in temperature, and sustained temperature
increases will stress and possibly lead to mortality for these species.
Forestry activities can include the construction of logging roads
through the riparian zone, and this can directly degrade nearby stream
environments. Roads can cause point-source pollution and sedimentation,
as well as sedimentation traveling downstream into sensitive habitats.
These effects lead to stress and mortality for both species, as
discussed above under ``Development and Pollution,'' and as reported in
studies of forestry-related sedimentation effects on survival of
aquatic vertebrates (Lowe et al. 2004, entire; Moseley et al. 2008,
entire; Peterman & Semlitsch 2009, entire). While BMPs are presently
widely adhered to, they were not always common practice, and
implementation is not perfect. The most recent surveys of the Neuse and
Tar-Pamlico River basins show that the average BMP implementation rate
is approximately 88 to 90 percent (Coats 2017, p. 38). Accordingly,
while improper implementation is uncommon, failure to implement or
inadequate implementation can have negative effects on sensitive
aquatic species. Further, the most recent assessment of forestry BMPs
in North Carolina reported that improperly implemented BMPs associated
with streamside management zones and stream crossings were frequently
associated with risks to water quality (Coats 2017, p. 9).
Invasive Species
There are many areas across North Carolina where invasive species
have invaded aquatic communities; are competing with native species for
food, light, or breeding and nesting areas; and are impacting
biodiversity. The flathead catfish (Pylodictis olivaris) is an invasive
species that most likely impacts Carolina madtom distribution and may
also have an impact on Neuse River waterdog distribution. The flathead
catfish is an apex predator, known to influence native fish
populations, including predation on benthic fishes, including madtoms,
and

[[Page 30702]]

it occurs in both the Neuse and Tar-Pamlico River basins. It is not
known whether this fish also preys on waterdogs, but it is speculated
that Neuse River waterdog inactivity during warmer months is in part
due to the avoidance of large, predatory fishes (Braswell 2005, p.
870).
Hydrilla (Hydrilla verticillata), an invasive aquatic plant, alters
stream habitat, decreases flows, contributes to sediment buildup in
streams, and can serve as a vector for a neurotoxic cyanobacteria known
to affect other vertebrates (e.g., fishes, turtles, waterbirds, and
their predators). High sedimentation can cause suffocation, reduce
stream flow necessary for madtom and waterdog survival, smother eggs,
and degrade leaf pack foraging habitat by causing prey items to abandon
them. Hydrilla occurs in several watersheds where both species occur
and has been recently documented from the Neuse system and the Tar
River. While there are no data to indicate that hydrilla currently has
population-level effects on these two species, its spread is expected
to increase in the future and control or eradication is difficult.
Red swamp crayfish (Procambarus clarkii) is an invasive crayfish
species native to the southern Mississippi River drainage in the Gulf
Coastal Plain and Florida panhandle to Mexico. Establishment of
nonnative populations in eastern North Carolina are likely from release
from aquaculture or from the aquarium trade (Nagy et al. 2020,
unpaginated). Red swamp crayfish are physical ecosystem engineers,
constructing extensive burrows that can collapse stream banks and cause
erosion. They are prolific opportunistic omnivores, and they not only
outcompete native crayfish but also other native animals, including
amphibians like Neuse River waterdog, by reducing their densities in
their habitat. Recent surveys have found that when red swamp crayfish
are present, Neuse River waterdogs are not (Braswell, Hall, and
Humphries 2020, pers. comm.).
Dams and Barriers
Extinction of some North American freshwater fish can be traced to
impoundment and inundation of riffle habitats in all major river basins
of the central and eastern United States. Upstream of dams, the change
from flowing to impounded waters, increased depths, increased buildup
of sediments, decreased dissolved oxygen, and the drastic alteration in
resident fish populations can threaten the survival of fish and aquatic
salamanders and their overall reproductive success. Downstream of dams,
fluctuations in flow regimes, minimal releases and scouring flows,
seasonal dissolved oxygen depletion, reduced or increased water
temperatures, and changes in fish assemblages can also threaten the
survival and reproduction of many aquatic species. Dams have also been
identified as causing genetic segregation or isolation in river
systems--resident species can no longer move freely through different
habitats and may become genetically isolated from other populations
throughout the river. Improperly constructed culverts at stream
crossings also can act as significant barriers and have some similar
effects as dams on stream systems. Fluctuating flows through the
culvert can vary significantly from the rest of the stream, preventing
aquatic species passage and scouring downstream habitats. If a culvert
ends up being perched above the stream bed, aquatic organisms cannot
pass through it. All of the MUs containing Neuse River waterdogs and
Carolina madtom populations have been impacted by dams, with as few as
11 dams in the Contentnea Creek MU to 287 dams in the Middle Neuse MU.
Energy Production and Mining
The Neuse River waterdog and its habitat face impacts from oil and
gas production, coal power, hydropower, and the use of biofuels. Coal
mined from other States is used for energy production in North
Carolina. Damage to fish and wildlife from exposure to coal ash slurry
ranges from physiological, developmental, and behavioral toxicity to
major population- and community-level changes. Contamination of aquatic
habitats by coal-combustion residue can result in the accumulation of
metals and trace elements in larval amphibians, including arsenic,
cadmium, chromium, copper, mercury, lead, selenium, and vanadium,
potentially leading to developmental, behavioral, and physiological
effects (Rowe et al. 2002, entire). As recently as October 2016, Neuse
River waterdogs in the Neuse River were exposed to coal ash slurry when
Hurricane Matthew caused inundation of coal ash storage ponds. Coal-
fired power plants pump large volumes of water to produce electricity,
and aquatic organisms such as larval waterdogs can be pulled in and
killed unless measures are sufficient to keep organisms from being
impacted. After water is used for electricity production, it is
returned to surface waters, but the temperature can be considerably
higher than the temperature of the stream, reducing the ability of the
species to spawn.
Hydropower as a domestic energy source is becoming more prevalent
in North Carolina, including areas where the Neuse River waterdog
occurs. Like other impoundments, streams and rivers impounded by
hydropower dams are changed from lotic systems to lentic systems,
fragmenting habitats and disrupting movements and migrations of fish
and other aquatic organisms like the Neuse River waterdog. Downstream
water quality can also suffer from low dissolved oxygen levels and
altered temperatures. In addition, hydropower generation can
significantly change flow regimes downstream of hydropower dams, and
can affect other riverine processes, such as sediment transport,
nutrient cycling, and woody debris transport.
Potential impacts to both species from oil and gas extraction are
numerous; they include water quality and water quantity impacts,
riparian habitat fragmentation and conversion, increased sand mining
(used in oil and gas extraction), and increased road and utility
corridors. While oil and gas extraction currently does not, and likely
will not, occur in the Tar River basin due to lack of subsurface shale
deposits, impacts from shale gas extraction could occur in the Neuse
River basin (Service 2021b, p. 46). Future impacts from oil and gas
exploration and production are certain, as North Carolina has recently
begun to allow fracking operations to drill for natural gas Statewide.
Climate Change
Aquatic systems are encountering changes and shifts in seasonal
patterns of precipitation and runoff as a result of climate change.
While both of these species have evolved in habitats that experience
seasonal fluctuations in discharge, global weather patterns (e.g., El
Ni[ntilde]o or La Ni[ntilde]a) can have an impact on the normal
regimes. Even during naturally occurring low flow events, amphibians
and fish either become stressed because they exert significant energy
to move to deeper waters or they may succumb to desiccation. Because
low flows in late summer and early fall are stress-inducing, droughts
during this time of year result in an increase in stress and,
potentially, an increased rate of mortality.
Droughts have impacted all river basins within the range of both
species, from an ``abnormally dry'' ranking for North Carolina in 2001
on the Southeast Drought Monitor scale to the highest ranking of
``exceptionally dry'' for the entire range of both species in 2002 and
2007. The 2015 drought data indicated

[[Page 30703]]

that the entire Southeast was under conditions ranging from
``abnormally dry'' to ``moderate drought'' or ``severe drought.'' These
data are from the first week in September, which as noted above is a
very sensitive time for drought to be affecting both species.
Tributaries in the Neuse River basin had consecutive drought years in
the period 2005-2012, indicating sustained stress on the species over a
long period of time. Amphibians and fish have limited refugia from
disturbances such as droughts and floods, and they are completely
dependent on specific water temperatures to complete their
physiological requirements. Changes in water temperature lead to stress
and increased mortality, and also increase the likelihood of extinction
for both species. Increases in the frequency and strength of storm
events, which are caused by climate change, alter stream habitat,
either directly via channelization or clearing of riparian areas or
indirectly via high streamflows that reshape the channel and cause
sediment erosion. The large volumes and velocity of water, combined
with the extra debris and sediment entering streams following a storm,
stress, displace, or kill Neuse River waterdogs and Carolina madtoms.
Synergistic Effects
In addition to individually impacting the species, it is likely
that several of the above summarized risk factors are acting
synergistically or additively on both species. The combined impact of
multiple stressors is likely more harmful than a single stressor acting
alone. For instance, effects of sedimentation and predatory fishes on
large aquatic salamanders have been found, in which larvae were more
affected by predatory fishes and adults were more affected by
sedimentation, suggesting that persistence of salamanders was
especially threatened in streams with both stressors (Lowe et al. 2004,
pp. 164, 167-170). As an example, within Carolina madtom and Neuse
River waterdog habitat, there are 182 miles of impaired streams in the
Middle Neuse MU. They have low benthic-macroinvertebrate scores, low
dissolved oxygen, and low pH, and they contain Escherichia coli (also
known as E. coli). There are 9 major and 272 minor discharges within
this MU, along with 287 dams, almost 4,000 road crossings, and droughts
recorded for 3 consecutive years in 2008-2010. If a small, but
improperly installed, culvert at a road crossing prevents fish from
moving up or downstream, the fish would not be able to escape to deeper
areas of the stream during droughts. Similarly, a discharge into a
stream has more impact on aquatic species if there are no precipitation
events immediately following to help flush the system. These
combinations of stressors on the sensitive aquatic species in this
habitat likely impact both species more severely than any one factor
alone.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA reports, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and cumulatively. Our current and future condition
assessment is iterative because it accumulates and evaluates the
effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Conservation Actions
The Service and State wildlife agencies are working with numerous
partners to provide technical guidance and offer conservation tools to
meet both species and habitat needs in aquatic systems in North
Carolina. Land trusts are targeting key parcels for acquisition;
Federal, State, and university biologists are surveying and monitoring
species occurrences; and there has been increased interest in efforts
for captive propagation and species population restoration via
augmentation, expansion, and reintroduction efforts, especially for the
Carolina madtom. However, some of these programs are in their infancy,
and currently none provides species-level protection at a scale such
that the species would not warrant listing under the Act.

Future Scenarios

For the purpose of this assessment, we define viability as the
ability of the species to sustain populations in the wild over time. To
address uncertainty associated with the degree and extent of potential
future stressors and their impacts on species' requisites, resiliency,
redundancy, and representation were assessed using four plausible
future scenarios. These scenarios were based, in part, on the results
of urbanization and climate models that predict changes in habitat used
by the Carolina madtom and the Neuse River waterdog. We developed
scenarios by eliciting expert information on two main stressors,
urbanization and climate change, that will impact the species in the
future. The models that were used to forecast both factors projected 50
years into the future. Using the best available data to forecast
plausible future scenarios allows the Service to determine if a species
may become an endangered species in the foreseeable future. Relatively
long species' life spans, well-developed downscaled climate models
specific to the region, and adequate human population growth data
available for the Southeast region provide some confidence in the range
of outcomes predicted over 50 years. Beyond that timeframe, there is
too much uncertainty in threats that will be occurring on the landscape
and how the species may respond to those threats. For more detailed
information on these models and their projections, please see the SSA
reports (Service 2021ab, chapter 5).
In the first scenario, the ``Status Quo'' scenario, factors that
influence current populations of the Carolina madtom and the Neuse
River waterdog were assumed to follow current trends over the 50-year
time horizon. Climate models predict that, if emissions continue at
current rates, the Southeast will experience an increase in low flow
(drought) events (IPCC 2013, p. 7). Likewise, this scenario assumed the
`business as usual' (BAU) pattern of urban growth, which predicts that
urbanization will continue to increase rapidly (Terando et al. 2014, p.
1). This continued growth in development means increases in impervious
surfaces, increased variability in streamflow, channelization of
streams or clearing of riparian areas, and other negative effects
explained above under ``Development and Pollution.'' The ``Status Quo''
scenario also assumed that current conservation efforts would remain in
place but that no new actions would be taken.
In the second scenario, the ``Pessimistic'' scenario, factors that
negatively influence Neuse River waterdog and the Carolina madtom
populations get worse; reflecting Climate Model representative
concentration pathway (RCP) 8.5 (Wayne 2013, p. 11), effects of climate
change are expected to be magnified beyond what is experienced in the
``Status Quo'' scenario. These predicted effects include extreme heat,
more

[[Page 30704]]

storms and flooding, and exacerbated drought conditions (IPCC 2013, p.
7). Based on the results of the SLEUTH (slope, land use, exclusion,
urban, transportation, and hillshade) BAU model (Terando et al. 2014,
entire), urbanization in the relevant watersheds could expand to triple
the amount of developed area, resulting in large increases of
impervious surface cover and, potentially, consumptive water use.
Increased urbanization and climate change effects are likely to result
in increased impacts to water quality, water flow, and habitat
connectivity, and we predict that there is limited capacity for species
restoration under this scenario.
In the third scenario, labeled the ``Optimistic'' scenario, factors
that influence population and habitat conditions of the Neuse River
waterdog and the Carolina madtom are expected to be somewhat improved.
Reflecting Climate Model RCP 2.6 (Wayne 2013, p. 11), climate change
effects are predicted to be minimal under this scenario and would not
include increased temperatures, and storms or droughts are as set forth
in the ``Status Quo'' and ``Pessimistic'' scenario predictions.
Urbanization is also predicted to have less impact in this scenario, as
reflected by effects that are slightly lower than BAU model predictions
(Terando et al. 2014, table 5-1). Because water quality, water flow,
and habitat impacts are predicted to be less severe in this scenario as
compared to others, it is expected that the species would have slightly
positive responses. Targeted permanent protection of riparian areas is
a potential conservation activity that could benefit these species, and
current efforts are considered successful as part of the ``Optimistic''
scenario.
In the fourth scenario, the ``Opportunistic'' scenario, those
landscape-level factors (e.g., development and climate change) that are
influencing populations of the Neuse River waterdog and the Carolina
madtom get moderately worse, reflecting Climate Change Model RCP 4.5
(Wayne 2013, p. 11) and SLEUTH BAU (Terando et al. 2014, table 5-1).
Effects of climate change are expected to be moderate, resulting in
some increased impacts from heat, storms, and droughts (IPCC 2013, p.
7). Urbanization in this scenario reflects the moderate SLEUTH BAU
levels, indicating approximately double the amount of developed area
compared to current levels. Overall, it is expected that the
synergistic impacts of changes in water quality, water flow, and
habitat connectivity will negatively affect both species, although
current land conservation efforts will benefit the species in some
watersheds.

Future Conditions of the Carolina Madtom and Neuse River Waterdog

For details regarding the predicted future under each scenario, see
chapter 6 of the SSA reports for each species (Service 2021ab).
Estimates of future resiliency for the Carolina madtom are low, as
are estimates for representation and redundancy. Similarly, estimates
of future resiliency for the Neuse River waterdog are moderate to low,
as are estimates for representation and redundancy. Both species face a
variety of risks from declines in water quality, loss of stream flow,
riparian and instream fragmentation, and deterioration of instream
habitats, and the madtom is particularly susceptible to predation from
the invasive flathead catfish. These risks, which are expected to be
exacerbated by urbanization and climate change, were important factors
in our assessment of the future viability of the Carolina madtom and
Neuse River waterdog. Given losses of resiliency, populations become
more vulnerable to extirpation, resulting in concurrent losses in
representation and redundancy. Predictions of Carolina madtom habitat
conditions and population factors suggest possible extirpation in one
of two currently extant populations. The one population predicted to
remain extant (Tar) is expected to be characterized by low occupancy
and abundance. Predictions of Neuse River waterdog habitat conditions
and population factors suggest possible extirpation in two of three
currently extant populations. Similar to the madtom, the one waterdog
population predicted to remain extant (Tar-Pamlico) is expected to be
characterized by low occupancy and abundance in the future.

Determinations of Carolina Madtom and Neuse River Waterdog Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of
``endangered species'' or ``threatened species'' because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.

Carolina Madtom: Status Throughout All of Its Range

The historical range of the Carolina madtom included third and
fourth order streams and rivers in the Tar, Neuse, and Trent drainages,
with documented historical distribution in 11 MUs within 3 former
populations, the Tar, Neuse, and Trent. The Carolina madtom is presumed
extirpated from 55 percent (6) of the historically occupied MUs. Of the
five MUs that remain occupied, one is estimated to have high
resiliency, one with moderate resiliency, two with low resiliency, and
one with very low resiliency. Scaling up from the MU to the population
level, the Tar population is estimated to have moderate resiliency, the
Neuse population is characterized by very low resiliency, and the Trent
population is presumed to be extirpated. Of streams that were once part
of the species' range, 82 percent are estimated to be in low condition
or likely extirpated. Once known to occupy streams in two physiographic
regions, the species has also lost substantial physiographic
representation with an estimated 44 percent loss in Piedmont watersheds
and an estimated 86 percent loss in Coastal Plain watersheds.
Estimates of current resiliency for Carolina madtom are low, as are
estimates for representation and redundancy. The Carolina madtom faces
a variety of ongoing threats from declines in water quality, loss of
stream flow, riparian and instream fragmentation, and deterioration of
instream habitats (Factor A). This species also faces the threat of
predation from the invasive flathead catfish (Factor C). These threats
are expected to be exacerbated by continued urbanization (Factor A) and
climate change (Factor E). Given current rates of resiliency,
populations are vulnerable to extirpation from stochastic events, in
turn, resulting in concurrent losses in representation and redundancy.
The current conditions as assessed in the Carolina madtom SSA
report show that 55 percent of the management units over three
populations (river systems) are presumed extirpated. The Carolina
madtom currently has two of three

[[Page 30705]]

remaining populations, but one of those populations (Neuse) is
characterized by ``very low'' resiliency. Once known to occupy streams
in two physiographic regions, the species has also lost substantial
physiographic representation with an estimated 44 percent loss in
Piedmont watersheds and an estimated 86 percent loss in Coastal Plain
watersheds. The one moderately resilient population (Tar) was
determined not to be sufficient for the species to withstand
catastrophic events, nor is it sufficient to enable the species to
maintain adaptive capacity. Therefore resiliency, redundancy, and
representation are all at levels that put the species at risk of
extinction throughout its range now. We conclude that the species is
currently in danger of extinction throughout all of its range. Because
the species is already in danger of extinction throughout its range, a
threatened status is not appropriate.

Carolina Madtom: Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Carolina madtom is in danger of
extinction throughout all of its range, and accordingly, did not
undertake an analysis of any significant portions of its range. Because
we have determined that the Carolina madtom warrants listing as
endangered throughout all of its range, our determination is consistent
with the decision in Center for Biological Diversity v. Everson, 2020
WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect
of the Final Policy on Interpretation of the Phrase ``Significant
Portion of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (79 FR 37578; July 1,
2014) that provided the Service does not undertake an analysis of
significant portions of a species' range if the species warrants
listing as threatened throughout all of its range.

Carolina Madtom Determination of Status

Our review of the best available scientific and commercial
information indicates that the Carolina madtom meets the Act's
definition of an endangered species. Therefore, we are listing the
Carolina madtom as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.

Neuse River Waterdog: Status Throughout All of Its Range

The historical range of the Neuse River waterdog likely included
all third and fourth order streams and rivers throughout the Tar-
Pamlico, Neuse, and Trent drainages, with documented historical
distribution in nine MUs within three populations. Of those nine
occupied MUs, two (22 percent) are estimated to have high resiliency,
two (22 percent) moderate resiliency, and five (56 percent) low
resiliency. Scaling up from the MU to the population level, one of
three populations (the Tar population) is estimated to have moderate
resiliency, and two (the Neuse and Trent populations) are characterized
by low resiliency. In short, 60 percent of streams that were once part
of the species' range are estimated to be in low condition or likely
extirpated. The species is known to occupy streams in two physiographic
regions, but it has lost physiographic representation with an estimated
43 percent loss in Piedmont watersheds and an estimated 13 percent loss
in Coastal Plain watersheds.
The Neuse River waterdog faces threats from declines in water
quality, loss of stream flow, riparian and instream fragmentation, and
deterioration of instream habitats (Factor A). These threats are
expected to be exacerbated by continued urbanization (Factor A) and
effects of climate change (Factor E). Given current and future
decreases in resiliency, populations become more vulnerable to
extirpation from stochastic events, in turn, resulting in concurrent
losses in representation and redundancy. The range of plausible future
scenarios of Neuse River waterdog habitat conditions and population
factors suggest reduced viability into the future. Under Scenario 1,
the ``Status Quo'' option, a loss of resiliency, representation, and
redundancy is expected. Under this scenario, we predicted that no MUs
would remain in high condition, two would be in moderate condition,
four would be in low condition, and three MUs would be likely
extirpated. Redundancy would be reduced to four MUs in the Tar
Population and two in the Neuse Population. Representation would also
be reduced, primarily with reduced variability in the Piedmont and
Coastal Plain.
Under scenario two, the ``Pessimistic'' option, we predicted
substantial losses of resiliency, representation, and redundancy.
Redundancy would be reduced to four MUs in one population, and the
resiliency of that population is expected to be low. Five MUs were
predicted to be extirpated, and, of the remaining four MUs, all would
be in low condition. All measures of representation are predicted to
decline under this scenario, leaving remaining Neuse River waterdog
populations underrepresented in river basin and physiographic
variability.
Under scenario three, the ``Optimistic'' option, we predicted
slightly higher levels of resiliency, representation, and redundancy
than were estimated under the Status Quo or Pessimistic options. Three
MUs would be in high condition, one in moderate condition, and the
remaining five would be in low condition. Despite predictions of
population persistence in the Neuse and Trent River basins, these
populations are expected to retain only low levels of resiliency; thus,
levels of representation are also predicted to decline under this
scenario.
Finally, under scenario four, the ``Opportunistic'' option, we
predicted reduced levels of resiliency, representation, and redundancy.
One MU would be in high condition, three would be in moderate
condition, three would be in low condition, and two would be likely
extirpated. Redundancy would be reduced with the loss of the Trent
population. Under the ``Opportunistic'' scenario, representation is
predicted to be reduced, with 67 percent of formerly occupied river
basins remaining occupied and with reduced variability in the Piedmont
and Coastal Plain physiographic regions. Both the ``Optimistic'' and
``Opportunistic'' scenarios were determined to be ``unlikely'' in the
analysis, while the most likely scenarios were ``Status Quo'' and
``Pessimistic.'' Under either of these more likely scenarios,
resiliency is low in most of the remaining populations, and many
populations are likely extirpated so that redundancy and representation
are significantly reduced. This expected reduction in both the number
and distribution of resilient populations is likely to make the species
vulnerable to catastrophic disturbance.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
predict that the population and habitat factors used to determine the
resiliency, representation, and redundancy for the Neuse River waterdog
will continue to decline. Thus, after assessing the best available
information, we conclude that the Neuse River waterdog is not currently
in danger of extinction, but is likely to become in danger of
extinction within the foreseeable future throughout all of its range.

[[Page 30706]]

First, we considered whether the Neuse River waterdog is presently
in danger of extinction and determined that proposing endangered status
is not appropriate. The current conditions as assessed in the Neuse
River waterdog SSA report show that the species exists in nine MUs over
three different populations (river systems) over a majority (65
percent) of the species' historical range. The Neuse River waterdog
still exhibits representation across both physiographic regions, and
extant populations remain across the range. In short, while the primary
threats are currently acting on the species and many of those threats
are expected to continue into the future, we did not find that the
species is currently in danger of extinction throughout all of its
range. However, according to our assessment of plausible future
scenarios, the species is likely to become an endangered species in the
foreseeable future throughout all of its range. Fifty years was
considered ``foreseeable'' in this case because it included projections
from both available models, and Neuse River waterdogs are a long-lived
and slow-growing species. We can reliably predict both the future
threats and the species' responses to those threats over 50 years as
presented in the models of predicted urbanization and climate change.
As discussed above, the range of plausible future scenarios of
Neuse River waterdog habitat conditions and population factors suggest
reduced viability into the future. Both the ``Optimistic'' and
``Opportunistic'' scenarios were determined to be ``unlikely'' in the
analysis, while the most likely scenarios were ``Status Quo'' and
``Pessimistic.'' Under either of these more likely scenarios,
resiliency is low in most of the remaining populations, and many
populations are likely extirpated so that redundancy and representation
are significantly reduced. This expected reduction in both the number
and distribution of resilient populations is likely to make the species
vulnerable to catastrophic disturbance. Accordingly, we find the Neuse
River waterdog warrants listing as threatened because it is likely to
become in danger of extinction within the foreseeable future throughout
all of its range.

Neuse River Waterdog: Status Throughout a Significant Portion of Its
Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluate whether the species is
endangered in any significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Neuse River waterdog, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For the Neuse River waterdog, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats:
Declines in water quality, loss of stream flow, riparian and instream
fragmentation, deterioration of instream habitats, and cumulative
effects. We found a concentration of threats in the Trent River basin
and the Upper and Middle Neuse River portions of the Neuse River
waterdog's range. The species has experienced declines throughout its
range, but most notably in the Piedmont portions of the upper and
Middle Neuse River basin and the southern portion of its range, the
Trent River basin.
The Neuse River waterdog population in the Trent has experienced a
67 percent decline in redundancy, with overall very low resiliency
currently. Agriculture practices and CAFOs, numerous in the
southeastern coastal plain of North Carolina, particularly in the Trent
River basin, contribute to poor water quality and fragmented or
deteriorated instream habitats, influencing resiliency of Neuse River
waterdogs in this portion of the range.
The waterdog populations in the Upper and Middle Neuse basin also
exhibit current low resiliency with only a 10 to 30 percent probability
of species' persistence. Exceptionally high development pressure from
the expanding Triangle Region of central North Carolina has contributed
to declines in water quality, loss of stream flow, fragmentation of
riparian and instream habitats, and overall deterioration of instream
habitat for the Neuse River waterdog.
Since these management units have seen populations reduced to very
low condition, this circumstance--in combination with the other threats
acting on the species throughout its range--may indicate that there is
a concentration of threats in these basins such that the species may be
in danger of extinction in these portions of the range.
Small, isolated populations often exhibit reduced levels of genetic
variability, which diminishes the species' capacity to adapt and
respond to environmental changes, thereby decreasing the probability of
long-term persistence. Small populations may experience reduced
reproductive vigor, for example, due to inbreeding depression. Isolated
individuals may have difficulty reproducing. The problems associated
with small population size and vulnerability to random demographic
fluctuations or natural catastrophes are further magnified by
synergistic interactions with other threats, such as those discussed
above. Based on our review of information and the synergistic effects
of threats exacerbated by the very low-condition populations in the
Trent, Upper Neuse, and Middle Neuse basins, we find that there is
information that the populations in these basins may be in danger of
extinction.
Because we have determined that the Trent, Upper Neuse, and Middle
Neuse basins are portions of the range that may be in danger of
extinction, we next evaluate whether those portions of the range may be
significant. As an initial note, the Service's most recent definition
of ``significant'' within agency policy guidance has been invalidated
by court order (see Desert Survivors v. Dep't of the Interior, No. 16-
cv-01165 (N.D. Cal. Aug. 24, 2018)). Therefore, for purposes of this
analysis,

[[Page 30707]]

the Service is evaluating potentially significant portions of the range
by applying any reasonable definition of ``significant'' in terms of
its biological importance. Factors we considered in the
``significance'' analysis were: (1) Whether the portion is large
geographically or in its contribution to resiliency, redundancy, and
representation relative to the remainder of the range; (2) whether the
portion contains high-quality habitat relative to the remainder of the
range; (3) whether the portion constitutes high-value or unique habitat
for the species; or (4) whether the portion contains habitat that is
essential to the life history, and therefore the overall conservation,
of the species.
We examined the first question of whether these portions could be
significant portions of the Neuse River waterdog's range by examining
their contribution to the resiliency, redundancy, and representation of
the species. We determined that the Trent MU contains 1 out of 20
occupied HUC10 watersheds identified in the SSA report; thus, the Trent
represents approximately 5 percent of the geographical range of the
species. Similarly, the Upper Neuse MU contains 1 out of 20 HUC10
watersheds, or approximately 5 percent of the range as well. The Middle
Neuse MU contains 4 out of 20 HUC10 watersheds, or approximately 20
percent of the geographical range. Currently, these areas individually
or together (representing approximately 30 percent) represent a small
portion of the waterdog's geographical range. Because these units
collectively have few healthy populations, they are not currently
contributing in an important way to the species' overall resiliency.
Neuse River waterdog populations are distributed over two
physiographic regions in three river basins, and we considered
geographic range as a surrogate for geographic variation and proxy for
potential local adaptation and adaptive capacity. The Piedmont streams
in the upper and middle Tar and upper and middle Neuse river basins
contain similar features and instream habitats as those of the Coastal
Plain streams in the lower Tar-Pamlico, lower Neuse, and Trent River
basins. There are no data indicating genetic or morphological
differentiation between the three river basins for the species.
Further, the waterdog occurs in similar aquatic habitats and does not
use unique observable environmental or behavioral characteristics
attributable to any of the basins. Therefore, it exhibits similar
basin-scale use of habitat.
At a management unit level, the Trent, Upper Neuse, and Middle
Neuse MUs occur in stream habitat comprised of similar substrate types
to the other MUs where the Neuse River waterdog performs the important
life-history functions of breeding, feeding, and sheltering, and occurs
in areas with water quality sufficient to sustain these essential life-
history traits. The Trent, Upper Neuse, and Middle Neuse do not act as
a refugia for the species or as an important spawning ground. Since the
waterdog occurs in similar aquatic habitats, the Trent, Upper Neuse,
and Middle Neuse exhibit similar habitat use as populations in the
remainder of the range. Therefore, there is no unique, observable
environmental usage or behavioral characteristics attributable to just
the Trent, Upper Neuse, and Middle Neuse MUs.
Overall, we found no substantial information that would indicate
the Trent, Upper Neuse, or Middle Neuse are portions of the range that
may be significant in terms of their overall contribution to the
species' resiliency, redundancy, and representation, or that they may
be significant in terms of high-quality habitat or habitat that is
otherwise important for the species' life history. As a result, we
determined there is no portion of the Neuse River waterdog's range that
constitutes a significant portion of the range. This is consistent with
the courts' holdings in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959
(D. Ariz. 2017). Accordingly, we determine that the species is likely
to become in danger of extinction within the foreseeable future
throughout all of its range.

Determination of Neuse River Waterdog Status

Our review of the best available scientific and commercial
information indicates that the Neuse River waterdog meets the Act's
definition of a threatened species. Therefore, we are listing the Neuse
River waterdog as a threatened species in accordance with sections
3(20) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies recovery
criteria for review of when a species may be ready for reclassification
from endangered to threatened (``downlisting'') or removal from
protected status (``delisting''), and methods for monitoring recovery
progress. Recovery plans also establish a framework for agencies to
coordinate their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), or from our Raleigh Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations,

[[Page 30708]]

businesses, and private landowners. Examples of recovery actions
include habitat restoration (e.g., restoration of native vegetation),
research, captive propagation and reintroduction, and outreach and
education. The recovery of many listed species cannot be accomplished
solely on Federal lands because their range may occur primarily or
solely on non-Federal lands. To achieve recovery of these species
requires cooperative conservation efforts on private, State, and Tribal
lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of North
Carolina will be eligible for Federal funds to implement management
actions that promote the protection or recovery of the Carolina madtom
and Neuse River waterdog. Information on our grant programs that are
available to aid species recovery can be found at: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Please let us know if you are interested in participating in
recovery efforts for the Carolina madtom and Neuse River waterdog.
Additionally, we invite you to submit any new information on this
species whenever it becomes available and any information you may have
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph may include, but are not limited to, management and any other
landscape-altering activities on Federal lands administered by the
Service, U.S. Forest Service, and National Park Service; issuance of
section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the
U.S. Army Corps of Engineers; and construction and maintenance of roads
or highways by the Federal Highway Administration.

Carolina Madtom

The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the listed species.
At this time, we are unable to identify specific activities that would
not be considered to result in a violation of section 9 of the Act
because the Carolina madtom occurs in a variety of habitat conditions
across its range and it is likely that site-specific conservation
measures may be needed for activities that may directly or indirectly
affect the species. Based on the best available information, the
following activities may potentially result in a violation of section 9
of the Act if they are not authorized in accordance with applicable
law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) Destruction/alteration of the species' habitat by discharge of
fill material, draining, ditching, tiling, pond construction, stream
channelization or diversion, or diversion or alteration of surface or
ground water flow into or out of the wetland (i.e., due to roads,
impoundments, discharge pipes, stormwater detention basins, etc.);
(3) Activities that result in direct or indirect destruction of
riparian habitat;
(4) Modification of the channel or water flow of any stream or
removal or destruction of emergent aquatic vegetation in any body of
water in which the Carolina madtom is known to occur;
(5) Discharge of chemicals or fill material into any waters in
which the Carolina madtom is known to occur; and
(6) Pesticide applications in violation of label restrictions.

Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Raleigh
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Neuse River Waterdog

It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of a listed species.
The discussion below regarding protective regulations under section
4(d) of the Act complies with our policy.

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

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as he or she
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

[[Page 30709]]

(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, 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, the combination of the two sentences of 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 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 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 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).
Exercising this authority under section 4(d), we have developed a
rule that is designed to address the Neuse River waterdog's specific
threats and conservation needs. 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 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. As discussed above under
Summary of Biological Status and Threats, we have concluded that the
Neuse River waterdog is likely to become in danger of extinction within
the foreseeable future primarily due to habitat degradation from
stressors influencing water quality, water quantity, instream habitat,
and habitat connectivity. The provisions of this 4(d) rule will 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. The provisions of
this rule are one of many tools that the Service will use to promote
the conservation of the Neuse River waterdog.

Provisions of the 4(d) Rule

This 4(d) rule will 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.
Import/export, possession, transportation, sale, and commerce are
of concern for many aquatic amphibians, primarily because rare,
strange-looking amphibians with frilly external gills (like the Neuse
River waterdog) are highly sought after in the global pet trade.
Regulating these activities will help protect the Neuse River waterdog
from exploitation.
As discussed above under Summary of Biological Status and Threats,
habitat degradation from stressors influencing water quality, water
quantity, instream habitat, and habitat connectivity are affecting the
status of the Neuse River waterdog. A range of activities have the
potential to affect the Neuse River waterdog, including development,
pollution, agricultural practices, land conversion, incompatible forest
management, invasive species, dams and barriers, and energy production
and mining. Regulating incidental take associated with these activities
will help preserve the species' remaining populations, slow its rate of
decline, and decrease synergistic, negative effects from other threats.
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
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental take will help preserve the species' remaining populations,
slow their rate of decline, and decrease synergistic, negative effects
from other threats. Protecting the Neuse River waterdog from direct
forms of take, such as physical injury or killing, whether incidental
or intentional, will help preserve and recover the species. Therefore,
we prohibit intentional take of Neuse River waterdog, including, but
not limited to, capturing, handling, trapping, collecting, or other
activities. Also, as discussed above under Summary of Biological Status
and Threats, habitat degradation from stressors influencing water
quality, water quantity, instream habitat, and habitat connectivity are
affecting the status of the Neuse River waterdog. Across the species'
range, stream and water quality have been degraded physically by
sedimentation, pollution, contaminants, impoundments, channelization,
destruction of riparian habitat, and loss of riparian vegetation due to
development, agricultural practices, land conversion, incompatible
forest management, invasive species, dams and barriers, and energy
production and mining. Other habitat or hydrological alteration, such
as ditching, draining, stream diversion, or diversion or alteration of
surface or ground water flow, into or out of the stream, will impact
the habitat of the species. Therefore, we prohibit incidental take of
the Neuse River waterdog by destroying, altering, or degrading the
habitat in the manner described above. Regulating incidental take
associated with these activities will help preserve Neuse River
waterdog populations, slow the rate of population decline, and decrease
synergistic, negative effects from other stressors.
During both public comment periods, the Service received numerous
comments on the exception for incidental take resulting from
silvicultural practices and forest management activities (see Summary
of Comments and Recommendations, above). North Carolina's forestry best
management practices (BMPs), when properly implemented, protect water
quality and help conserve aquatic species, including the Neuse River
waterdog. Forest landowners who properly implement those BMPs are
helping conserve the waterdog, and this 4(d) rule is an incentive for
all landowners to properly implement them

[[Page 30710]]

to avoid any take implications. Further, those forest landowners who
are third-party-certified to a credible forest management standard are
providing audited certainty that BMP implementation is taking place
across the landscape.
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, our regulations specify the conditions that must be met. We
revised 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,
which will provide for the conservation of the species. 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 2020ab, p. 10). Neuse River
waterdogs require cool, well-oxygenated water, and a clean stream
bottom (USFWS 2020ab, 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). The exception
for incidental take associated with these activities seeks to ensure
these characteristics are maintained for the conservation of the Neuse
River waterdog.
Under this final 4(d) rule, all prohibitions and provisions of
section 9(a)(1) of the Act apply to the Neuse River waterdog, except
that incidental take resulting from the following actions will not be
prohibited:
(1) Species restoration efforts by State wildlife agencies,
including collection of broodstock, tissue collection for genetic
analysis, captive propagation, and subsequent stocking into currently
occupied and unoccupied areas within the historical range of the
species, and follow-up monitoring.
(2) Channel restoration projects that create natural, physically
stable, ecologically functioning streams (or stream and wetland
systems) that are reconnected with their groundwater aquifers. These
projects can be accomplished using a variety of methods, but the
desired outcome is a natural channel with low shear stress (force of
water moving against the channel); bank heights that enable
reconnection to the floodplain; a reconnection of surface and
groundwater systems, resulting in perennial flows in the channel;
riffles and pools composed of existing soil, rock, and wood instead of
large imported materials; low compaction of soils within adjacent
riparian areas; and inclusion of riparian wetlands. Second- to third-
order, headwater streams reconstructed in this way 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.
(3) Bank stabilization projects that use bioengineering methods to
replace pre-existing, bare, eroding stream banks with vegetated, stable
stream banks, thereby reducing bank erosion and instream sedimentation
and improving habitat conditions for the species. Following these
bioengineering methods, stream banks may be stabilized using 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 and herbaceous 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.
(4) Forestry-related activities, including silvicultural practices,
forest management activities, and fire control tactics, that implement
State-approved BMPs. In order for this exception to apply to forestry-
related activities, these BMPs must achieve all of the following:
(a) Establish a streamside management zone alongside the margins of
each waterway.
(b) Restrain visible sedimentation caused by the forestry-related
activity from entering the waterway.
(c) Maintain native groundcover within the streamside management
zone of the waterway, and promptly re-establish native groundcover if
disturbed.
(d) Limit installation of vehicle or equipment crossings of the
waterway to only where necessary for the forestry-related activity.
Such crossings must:
(i) Have erosion and sedimentation control measures installed to
divert surface runoff away and restrain visible sediment from entering
the waterway;
(ii) Allow for movement of aquatic organisms within the waterway;
and
(iii) Have native groundcover applied and maintained through
completion of the forestry-related activity.
(e) Prohibit the use of tracked or wheeled vehicles for
reforestation site preparation within the streamside management zone of
the waterway.
(f) Prohibit locating log decks, skid trails, new roads, and
portable mill sites in the streamside management zone of the waterway.
(g) Prohibit obstruction and impediment of the flow of water within
the waterway, caused by direct deposition of debris or soil by the
forestry-related activity.
(h) Maintain shade over the waterway similar to that observed prior
to the forestry-related activity.
(i) Prohibit discharge of any solid waste, petroleum, pesticide,
fertilizer, or other chemical into the waterway.
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 4(d) rule will correct some of these problems,
creating more favorable habitat conditions for the species.
We may issue 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
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. There are
also certain statutory exemptions from the prohibitions, which are
found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State

[[Page 30711]]

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, candidate, and at-risk 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 Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service 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,
will be able to conduct activities designed to conserve the Neuse River
waterdog that may result in otherwise prohibited take without
additional authorization.
Nothing in this 4(d) rule will 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.

III. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including, but not limited to, water characteristics, soil type,
geological features, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat
that this rule follows (based on the May 22, 2019, publication date of
the proposed rule), we can designate critical habitat in areas outside
the geographical area occupied by the species at the time it is listed,
upon a determination that such areas are essential for the conservation
of the species. We will determine whether unoccupied areas are
essential for the conservation of the species by considering the life-
history, status, and conservation needs of the species. This will be
further informed by any generalized conservation strategy, criteria, or
outline that may have been developed for the species to provide a
substantive foundation for identifying which features and specific
areas are essential to the conservation of the species and, as a
result, the development of the critical habitat designation. For
example, an area currently occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat based
on the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information

[[Page 30712]]

Quality Guidelines provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and other information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
On August 27, 2019, we published a final rule in the Federal
Register (84 FR 45020) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on September 26, 2019, but, as
stated in under DATES in that rule, the amendments it sets forth apply
to ``rules for which a proposed rule was published after September 26,
2019.'' We published our proposed critical habitat designations for the
Carolina madtom and Neuse River waterdog on May 22, 2019 (84 FR 23644);
therefore, the amendments set forth in the August 27, 2019, final rule
at 84 FR 45020 do not apply to this final designation of critical
habitat for the Carolina madtom and Neuse River waterdog.

Prudency Determination

While the implementing regulations (50 CFR 424.12) of section
4(a)(3) of the Act, as amended, have recently been amended, the
proposed rule that led to this final rule published before the new
regulations were implemented; therefore, we are operating under the
older implementing regulations that require that the Secretary shall
designate critical habitat at the time the species is determined to be
an endangered or threatened species to the maximum extent prudent and
determinable. Our regulations (50 CFR 424.12(a)(1)) state that the
designation of critical habitat is not prudent when one or both of the
following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species. In determining whether a designation would not be
beneficial, the factors the Service may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any areas meet the definition of
``critical habitat.''
In our SSA report and the proposed listing determination for the
Carolina madtom and Neuse River waterdog, we determined that the
present or threatened destruction, modification, or curtailment of
habitat or range is a threat to both the Carolina madtom and Neuse
River waterdog and that those threats in some way can be addressed by
section 7(a)(2) consultation measures. Accordingly, such a designation
could be beneficial to the species. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) has
been met and because there are no other circumstances the Secretary has
identified for which this designation of critical habitat would be not
prudent, we have determined that the designation of critical habitat is
prudent for the Carolina madtom and the Neuse River waterdog.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Carolina madtom and Neuse River waterdog is determinable. Our
regulations at 50 CFR 424.12(a)(2) state that critical habitat is not
determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where both species are
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Carolina madtom and Neuse River
waterdog.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 were amended after the publication of the
May 22, 2019, proposed rule; see 84 FR 45020 (August 27, 2019). For
this rule, we define ``physical or biological features essential to the
conservation of the species'' as the features that support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation,

[[Page 30713]]

symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.

Summary of Essential Physical or Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
The features may also be combinations of habitat characteristics
and may encompass the relationship between characteristics or the
necessary amount of a characteristic needed to support the life history
of the species. In considering whether features are essential to the
conservation of the species, the Service may consider an appropriate
quality, quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species.
We derive the specific physical or biological features essential to
the conservation of Carolina madtom from studies of this species'
habitat, ecology, and life history as described above. The primary
habitat elements that influence resiliency of both species include
water quality, water quantity, substrate, and habitat connectivity.
Additional information can be found in the SSA report (Service 2021a)
available on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-
2018-0092. The Carolina madtom's individual needs are summarized below
in Table 3.

Table 3--Life History and Resource Needs of the Carolina Madtom
----------------------------------------------------------------------------------------------------------------
Resources and/or
circumstances needed for Resource function
Life stage individuals to complete each (BFSD *) Information source
life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-July................ <bullet> Clear, flowing B --Burr et al. 1989, p.
water. 75.
<bullet> Sexually mature
males and females..
<bullet> Appropriate
spawning temperatures.
<bullet> Nest sites (rocks,
bottles, shells, cobble).
<bullet> Adequate flow for
oxygenation.
Hatchling--late summer.............. <bullet> Clear, flowing B, S --Burr et al. 1989, p.
water. 78.
<bullet> Cohesive schooling
behavior to avoid predation.
Juveniles--2-3 years; >2.5 inches <bullet> Clear, flowing F, S --Burr et al. 1989, p.
long. water. 78.
<bullet> Adequate food
availability (midges,
caddisflies, mayflies,
etc.).
<bullet> Cover (shells,
bottles, cans, tires, woody
debris, etc.).
Adults--3+ years-->4 inches long.... <bullet> Clear, flowing F, S, D --Burr et al. 1989, p.
water 1 to 3 feet deep. 63
<bullet> Appropriate --Midway et al. 2010,
substrate (leaf litter, p. 326.
sand, gravel, cobble).
<bullet> Adequate food
availability (midges,
caddisflies, mayflies,
etc.).
<bullet> Cover (shells,
bottles, cans, tires, woody
debris, etc.).
----------------------------------------------------------------------------------------------------------------
* B = breeding; F = feeding; S = sheltering; D = dispersal.

We have determined that the following physical or biological
features are essential to the conservation of Carolina madtom:
(1) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater native
fish (such as stable riffle-run-pool habitats that provide flow refuges
consisting of silt-free gravel, small cobble, coarse sand, and leaf
litter substrates) as well as abundant cover used for nesting.
(2) Adequate flows, or a hydrologic flow regime (which includes the
severity, frequency, duration, and seasonality of discharge over time),
necessary to maintain instream habitats where the species is found and
to

[[Page 30714]]

maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the fish's
habitat, food availability, and ample oxygenated flow for spawning and
nesting habitat.
(3) Water quality (including, but not limited to, conductivity,
hardness, turbidity, temperature, pH, ammonia, heavy metals, and
chemical constituents) necessary to sustain natural physiological
processes for normal behavior, growth, and viability of all life
stages.
(4) Aquatic macroinvertebrate prey items, which are typically
dominated by larval midges, mayflies, caddisflies, dragonflies, and
beetle larvae.
We derive the specific physical or biological features essential to
the conservation of Neuse River waterdog from studies of this species'
habitat, ecology, and life history as described above. The primary
habitat elements that influence resiliency of both species include
water quality, water quantity, substrate, and habitat connectivity.
Additional information can be found in the SSA report (Service 2021b)
available on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-
2018-0092. The Neuse River waterdog's individual needs are summarized
below in Table 4.

Table 4--Life History and Resource Needs of the Neuse River Waterdog
----------------------------------------------------------------------------------------------------------------
Resources and/or
circumstances needed for Resource function
Life stage individuals to complete each (BFSD *) Information source
life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-June................ <bullet> Clean, flowing B --Pudney et al. 1985,
water with moderate current p. 54.
(~10-50 cm/sec). --Cooper and Ashton
<bullet> Sexually m

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on June 9, 2021.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.