Rule2021-24784
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Atlantic Pigtoe and Designation of Critical Habitat
Primary source
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Published
November 16, 2021
Effective
December 16, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), list the Atlantic pigtoe, (Fusconaia masoni), a freshwater mussel species from Virginia and North Carolina, as a threatened species with a rule issued under section 4(d) of the Endangered Species Act of 1973 (Act), as amended. We also designate critical habitat for the species under the Act. In total, approximately 563 river miles (906 river kilometers) fall within 17 units of critical habitat in Bath, Botetourt, Brunswick, Craig, Dinwiddie, Greensville, Halifax, Lunenburg, Mecklenburg, Nottoway, Pittsylvania, and Sussex Counties, Virginia, and in Durham, Edgecombe, Franklin, Granville, Halifax, Johnston, Montgomery, Nash, Orange, Person, Pitt, Randolph, Rockingham, Vance, Wake, Warren, and Wilson Counties, North Carolina. This rule extends the Act's protections to the species and its designated critical habitat.
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[Federal Register Volume 86, Number 218 (Tuesday, November 16, 2021)]
[Rules and Regulations]
[Pages 64000-64053]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24784]
[[Page 63999]]
Vol. 86
Tuesday,
No. 218
November 16, 2021
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Atlantic Pigtoe and Designation of
Critical Habitat; Final Rule
Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 /
Rules and Regulations
[[Page 64000]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0046; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD12
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Atlantic Pigtoe and Designation of
Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the
Atlantic pigtoe, (Fusconaia masoni), a freshwater mussel species from
Virginia and North Carolina, as a threatened species with a rule issued
under section 4(d) of the Endangered Species Act of 1973 (Act), as
amended. We also designate critical habitat for the species under the
Act. In total, approximately 563 river miles (906 river kilometers)
fall within 17 units of critical habitat in Bath, Botetourt, Brunswick,
Craig, Dinwiddie, Greensville, Halifax, Lunenburg, Mecklenburg,
Nottoway, Pittsylvania, and Sussex Counties, Virginia, and in Durham,
Edgecombe, Franklin, Granville, Halifax, Johnston, Montgomery, Nash,
Orange, Person, Pitt, Randolph, Rockingham, Vance, Wake, Warren, and
Wilson Counties, North Carolina. This rule extends the Act's
protections to the species and its designated critical habitat.
DATES: This rule is effective December 16, 2021.
ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0046. Comments and
materials we received, as well as 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>.
The coordinates or plot points from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R4-
ES-2018-0046 and the shapefiles for the critical habitat designation
are available on the Service's Environmental Conservation Online System
(ECOS) website at <a href="http://ecos.fws.gov/ecp/species/5164">http://ecos.fws.gov/ecp/species/5164</a>. Any additional
tools or supporting information that we developed for this critical
habitat designation will also be available at the Service's website set
out above or 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 to list the species in the Federal Register and make a
determination on our proposal within one year. If there is substantial
disagreement regarding the sufficiency and accuracy of the available
data relevant to the proposed listing, we may extend the final
determination for not more than six months. 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. When we list a species as a threatened species, we issue
such regulations as deemed necessary and advisable to provide for the
conservation of such species. In addition, we 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, designation of critical
habitat, and protection of threatened species can only be completed by
issuing a rule.
What this document does. This rule finalizes the listing of the
Atlantic pigtoe (Fusconaia masoni) as a threatened species with a rule
issued under section 4(d) of the Act (a ``4(d) rule'') and designates
critical habitat in 17 units totaling approximately 563 river miles
(906 river kilometers (km)) within portions of 12 counties in Virginia
and 17 counties in North Carolina.
The basis for our action. Under section 4(a)(1) of the Act, we may
determine that a species is an endangered or threatened species based
on any of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We have determined that habitat
degradation (Factor A), resulting from the cumulative impacts of land
use change and associated watershed-level effects on water quality,
water quantity, habitat connectivity, and instream habitat suitability,
poses the largest risk to the future viability of the Atlantic pigtoe.
This stressor primarily consists of 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). Further, the existing
regulatory mechanisms are not adequate to reduce these threats so that
the species would 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 must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts 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. On October 11, 2018, we published an announcement of, and
solicited public comments on, the draft economic analysis (83 FR
51570). The September 22, 2020, revisions to proposed critical habitat
(85 FR 59487) did not affect the economic analysis because the impacts
on the counties with new proposed units were already factored into the
original analysis. We received no comments on the draft economic
analysis and adopted the draft economic analysis as final.
Peer review and public comment. Prior to development of our October
11, 2018, proposed rule, we received peer reviews of the Species Status
[[Page 64001]]
Assessment (SSA) report from two experts, which informed our assessment
that we used for this rulemaking. 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 public
comment periods.
Previous Federal Actions
Please refer to the proposed listing rule for the Atlantic pigtoe
(83 FR 51570) for a detailed description of previous Federal actions
concerning this species. We published a proposed listing, 4(d) rule,
and critical habitat designation for the Atlantic pigtoe on October 11,
2018 (83 FR 51570); we accepted public comments on the proposed rule
for 60 days, ending December 10, 2018. Based on information we received
during the public comment period, on September 22, 2020, we proposed a
revised 4(d) rule and critical habitat designation for the Atlantic
pigtoe (85 FR 59487); we accepted public comments on the proposed
revisions as well as the October 11, 2018, proposed rule for 30 days,
ending October 22, 2020. Please refer to the October 11, 2018, and
September 22, 2020, documents for detailed descriptions of other
previous Federal actions concerning this species.
Supporting Documents
An SSA team prepared an SSA report for the Atlantic pigtoe. The SSA
team was composed of Service biologists, in consultation with other
species experts. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of the
Atlantic pigtoe, including the impacts of past, present, and future
factors (both negative and beneficial) affecting the species. The SSA
report and other materials relating to this rule can be found at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0046.
Summary of Changes From the Proposed Rule
This final rule incorporates several changes to our proposed rule
(83 FR 51570; October 11, 2018) based on the comments we received
during that proposal's 60-day comment period as well as during the
reopened public comment (see 85 FR 59487; September 22, 2020), which
are summarized below under Summary of Comments and Recommendations.
Minor, nonsubstantive changes and corrections were made throughout this
rule in response to comments. Based on these comments, we also
incorporated as appropriate new information into our SSA report,
including updated survey information. The information we received
during both public comment periods did not change our determination
that the Atlantic pigtoe is a threatened species.
We received substantive comments on the proposed 4(d) rule and
critical habitat designation, and we made changes to both of these as a
result. We made changes to the 4(d) rule exceptions to the incidental
take prohibitions as follows:
<bullet> For incidental take resulting from species restoration
efforts by State wildlife agencies, we now include monitoring, which is
necessary to determine the success of captive propagation and stocking
efforts;
<bullet> For channel restoration projects, we remove erroneous
mention of second- to third-order streams, and we add language to
require surveys for and relocation of Atlantic pigtoe observed prior to
commencement of restoration action;
<bullet> For bank stabilization projects, we add a requirement that
appropriate ``native'' vegetation, including woody and herbaceous
species appropriate for the region and habitat, be used for
stabilization; and
<bullet> For forestry-related actions, we use alternative language
provided by NCFS and VDOF (see (13) Comment under Summary of Comments
and Recommendations, below).
We have also changed the way in which the provisions of the 4(d)
rule will appear at 50 CFR 17.45(a). We no longer generally refer to
the 50 CFR 17.31 prohibitions and exceptions to those prohibitions, but
instead specify the applicable prohibitions in the 4(d) rule. In
addition, for clarity and readability, we present separate lists for
the general exceptions to the prohibitions and the exceptions from
prohibitions for specific types of incidental take. However, these
changes are simply formatting changes and do not affect the substance
of the 4(d) rule.
For the critical habitat designation, we removed proposed Unit 3
(Middle James River) based on comments received from the VADWR (see (9)
Comment under Summary of Comments and Recommendations, below). This
removal changes the numbering of all following units (Units 4 through
18 become Units 3 through 17); therefore, revisions to the proposed
critical habitat designation described in the September 22, 2020,
document (85 FR 59487) differ slightly, but only by unit numbering,
than as presented in this rule. We added two critical habitat units
(Sappony Creek Unit (now Unit 3) and Little Grassy Creek Unit (now Unit
8)) and modified four units (Nottoway River Subbasin (now Unit 4), Dan
River (now Unit 6), Upper/Middle Tar River Subbasin (now Unit 9),
Sandy/Swift Creek (now Unit 10)) of the critical habitat designation
for Atlantic pigtoe, for a total critical habitat designation of 563
river miles (906 river kilometers), an increase of 21 river miles (34
river kilometers) from the October 11, 2018, proposed designation.
We also added information about regulatory mechanisms to Factors
Influencing Atlantic Pigtoe Viability (below), including information
about state endangered species laws, state and federal stream
protections, and state and federal water quality programs.
Summary of Comments and Recommendations
In the October 11, 2018, and September 22, 2020, proposed rules, we
requested that all interested parties submit written comments. We also
contacted appropriate Federal and State agencies, scientific experts
and organizations, and other interested parties and invited them to
comment on the proposed rules. Newspaper notices inviting general
public comment were published in the USA Today legal notice section on
October 25, 2018, and October 1, 2020. Although we invited requests for
a public hearing in both proposed rules, we did not receive any
requests for a public hearing. All substantive information received
during both comment periods has either been incorporated directly into
this final determination or is addressed below. For topics we received
comments on during both comment periods, we specify whether the
comments were received as part of the initial comment period (October
11-December 10, 2018) or the reopened comment period (September 22-
October 22, 2020).
Peer Reviewer Comments
In accordance with our peer review policy published 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
solicited expert opinion regarding the SSA report from six
knowledgeable individuals with scientific expertise that included
familiarity with Atlantic pigtoe and its habitat, biological needs, and
threats. We received responses from two of those individuals. We
reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the information
contained in the SSA report. The peer reviewers generally
[[Page 64002]]
concurred with our methods and conclusions, and provided additional
information, clarifications, and suggestions to improve the SSA report.
Peer reviewer comments are addressed in the following summary and were
incorporated into the SSA report as appropriate.
(1) Comment: One peer reviewer noted that redundancy calculations
provided in the Summary Table of the SSA report were confusing and
asked us to clarify changes in redundancy for current condition.
Our Response: Because redundancy relates to the number and
distribution of populations, we used the number of occupied watersheds,
or HUCs (Hydrologic Unit Codes), to clarify changes in redundancy, as
summarized in Table ES-1 of the SSA report. For current condition,
there has been a 60 percent reduction in redundancy across the species'
historical range (i.e., 31 out of 81 HUCs are now currently occupied;
31/81 = 0.4, which equates to a reduction of 0.6 or 60 percent).
State Agency Comments
We received comments from six State agencies: The North Carolina
Wildlife Resources Commission (NCWRC), the Georgia Department of
Natural Resources (GADNR), the Virginia Department of Wildlife
Resources (VADWR), the South Carolina Department of Natural Resources
(SCDNR), the North Carolina Forest Service (NCFS), and the Virginia
Department of Forestry (VDOF). Because we received several comments
from both NCFS and VDOF and the public regarding forestry
considerations, we address most NCFS and VDOF comments in the Public
Comments section, below.
(2) Comment: The GADNR recommended we use an occupancy model
analysis to inform our population factors.
Our Response: Occupancy modeling relies on multiple visits to the
same site over time, thus allowing for an estimation of detection. At
the time of SSA analysis (2015-2016), the available rangewide data were
not conducive for use with occupancy models. We did not receive
additional occupancy data during the public comment periods that would
allow us to conduct an occupancy model analysis.
(3) Comment: The NCWRC noted that it has not been able to do
intensive surveys for Atlantic pigtoe in portions of the Cape Fear
River Basin. It suggested that the Optimistic Scenario consider the
potential to find additional populations in the Piedmont to reflect
that the species exists in areas where surveys have not been updated
and habitat conditions have not changed.
Our Response: The narrative portion of the SSA report acknowledges
the possibility of finding new locations for the species. However,
those findings are not reflected in the Scenario table because the
potential future abundances are not known and therefore cannot be
incorporated into future condition categorization.
(4) Comment: The NCWRC commented that several areas within the
known range of the Atlantic pigtoe have not been surveyed sufficiently
since 2005 to conclude that the species is not present.
Our Response: We recognize that detection is imperfect; therefore,
we involved NCWRC biologists in the development of the SSA report and
sought their input into the decision to use 2005 as the earliest date
for ``current.'' This year was selected based on the perceived adequacy
of survey effort from 2005-2015 for justifying current species
presence/absence conclusions. Ultimately, we relied on data provided by
each state's agency biologists to develop the distribution and
abundance heat maps contained in Appendix B of the SSA report.
(5) Comment: The NCWRC noted that many of the critical habitat
reaches lack definable limits that can be precisely described and
recommended that critical habitat units start and end at distinct
locations, such as tributary confluences or road crossings.
Our Response: For the purposes of this rule, critical habitat
reaches are defined based on Natural Heritage species ``element
occurrences.'' An element occurrence is an area of land and/or water in
which a species or ecological community is present. Since these
comprise the best available scientific information, we used them for
unit boundaries rather than relying on a tributary confluence or road
crossing. Both coordinates or plot points from which the maps are
generated and shapefiles are available (see ADDRESSES, above) to help
users precisely identify limits on a map.
(6) Comment: The NCWRC recommended the 4(d) rule be clarified to
state that provisions of sections 7 and 9(a)(1) of the Act will not
apply to those areas where Atlantic pigtoe are stocked by NCWRC or
Service biologists into unoccupied habitat. This clarification will
allow biologists to stock Atlantic pigtoe in suitable yet currently
unoccupied habitat within the species' historical range without these
restored populations being subject to the provisions of sections 7 and
9(a)(1) of the Act.
Our Response: We recognize the special and unique relationship with
our State natural resource agency partners in contributing to
conservation of listed species. Therefore, under the final 4(d) rule,
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, and who is designated by his or her agency for
such purposes, will be able to conduct activities designed to conserve
Atlantic pigtoe that may result in otherwise prohibited take without
additional authorization.
Nothing in this final 4(d) rule changes in any way the consultation
requirements under section 7 of the Act. However, interagency
cooperation may be further streamlined through planned programmatic
consultations for the species between Federal agencies and the Service,
where appropriate.
(7) Comment: The NCWRC provided recommendations, with supporting
data, to revise the 4(d) rule language by adding (a) monitoring to the
species restoration exception for incidental take; (b) language to the
channel restoration exception for incidental take that requires surveys
for and relocation of Atlantic pigtoe observed prior to commencement of
restoration action; and (c) language to the incidental take exception
resulting from 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.
Our Response: The suggested revisions are important considerations
to include in the exceptions outlined and provide for the conservation
of the Atlantic pigtoe, therefore we made the suggested revisions to
the 4(d) rule.
(8) Comment: The NCWRC provided recommendations, with supporting
data, to revise several critical habitat units, truncating two units
(i.e., removing 3.8 river miles from Upper/Middle Tar River Subbasin
and 8.2 river miles from Sandy/Swift Creek), adding occupied habitat to
two units (10 river miles to Upper/Middle Tar River Subbasin and 7
river miles to Dan River), and creating a new unit (Little Grassy
Creek). During the reopened comment period, the VADWR suggested the
removal of the Middle James River critical habitat unit, noting that
the last detection of living Atlantic pigtoe in that reach was in the
late 1960s.
Our Response: As announced in our reopening of the rule, we
reviewed this new information received from State agencies, in
conjunction with all prior
[[Page 64003]]
data. In doing so, we noted an accidental omission error during our
mapping of critical habitat that resulted in the omission of a 2011
observation of Atlantic pigtoe in Sappony Creek. Based on the new
information, we made several revisions to the proposed critical habitat
designation. We removed 3.8 river miles and added 10 river miles to
Unit 9 (Upper/Middle Tar River Subbasin) for a net change of 6.2
additional river miles. We removed 8.2 river miles from Unit 10 (Sandy/
Swift Creek), added 3.5 river miles to Sturgeon Creek and 10.3 river
miles to Nottoway River in Unit 4 (Nottoway River Subbasin). Further,
we added 7 river miles to Unit 6 (Dan River). We created two new units
based on the data received and the accidental omission, including the
Sappony Creek Unit (Unit 3; 4 river miles) and the Little Grassy Creek
Unit (Unit 8; 3 river miles). Addition of these units did not change
the economic analysis, as both units are in counties that were included
as part of the original analysis. We removed the originally proposed
Unit 3 (Middle James River) because the VADWR data indicated that the
Atlantic pigtoe does not currently occupy habitat in that part of the
system; therefore, this unit no longer meets the criteria for
designation as critical habitat as we determined that designation of
unoccupied critical habitat is not essential for the conservation of
the species (see Criteria Used to Identify Critical Habitat, below).
All of these modifications were included in our reopening of the rule
(85 FR 59487).
(9) Comment: The VADWR provided data for a newly recorded
occurrence for Atlantic pigtoe, located approximately 500 meters (m)
downstream of proposed critical habitat Unit 5. The commenter asked
that the new information be recorded, but did not believe extending the
proposed critical habitat another 500 to 600 m, in addition to the 8 km
currently proposed for designation, would significantly benefit the
conservation and recovery of Atlantic pigtoe. They also stated that
potential delays in the proposed listing due to another reopening of
the comment period on the critical habitat designation would be
detrimental to the overall conservation and recovery of the species.
Our Response: The Service acknowledges receipt of the new
occurrence record and appreciates the commenter's perspective on moving
forward with listing and designation of critical habitat without delay.
We concur that adding a small length of stream to an existing critical
habitat unit would not be a significant benefit to the species, and
would not contribute substantially to the previously identified
strategy that we have deemed essential for the conservation of the
species. We note that a critical habitat designation does not signal
that habitat outside the designated area is unimportant or may not be
valuable for recovery of the species. We have updated the SSA report
accordingly.
(10) Comment: The SCDNR stated that our initial assumption that
Atlantic pigtoe does not currently occur in South Carolina was
incorrect. Specifically, the agency indicated that data do not exist to
assert that South Carolina populations of Atlantic pigtoe are
extirpated from the State. It mentioned the possibility that Atlantic
pigtoe persists in areas of the State where it was thought to be
historically, but has lacked concentrated survey efforts, especially in
the Edisto and Pee Dee basins. The SCDNR indicated that survey efforts
that have taken place are not adequate to determine the presence or
absence of a rare species.
Our Response: We acknowledge the concerns of the SCDNR that
targeted surveys for Atlantic pigtoe are needed in South Carolina
watersheds. We updated the SSA report to include a statement that few
surveys have been conducted in the Edisto and Pee Dee basins in South
Carolina. However, based on current scientific information, the species
has not been observed since the 1800s in South Carolina; therefore, we
did not include areas in South Carolina as part of the currently
occupied range. The Service will work closely with SCDNR and other
States' agencies to evaluate priorities for data collection and
monitoring related to the recovery of Atlantic pigtoe, including
ensuring information is collected in South Carolina to make better
determinations of presence/absence in South Carolina watersheds that
would be informative for status reviews and recovery metrics.
(11) Comment: The SCDNR agreed with language of the proposed 4(d)
rule's silvicultural exception ``to clarify that the BMPs [best
management practices] must result in protection of the habitat features
that provide for breeding, feeding, sheltering, and dispersal needs of
the Atlantic pigtoe.'' However, the SCDNR recommended that we use the
streamside management zones applied to Municipal Water Supplies in the
Virginia BMP Technical Manual (2011), because they are more appropriate
for protecting the species than those recommended for trout. They
commented that BMPs that include these wider streamside management
zones will minimize the impact of the silviculture activities including
impacts from access roads and skid trails on the species by reducing
sedimentation and protecting water quality by filtering excess
nutrients.
Our Response: The Virginia BMP Streamside Management Zone (SMZ)
widths for municipal water supplies, to which the SCDNR refers, are
100, 150, or 200 feet on each side of a waterbody (stream or lake),
depending on the percent slope of adjacent lands (VDOF 2011, p. 15).
While we acknowledge that the Virginia forestry BMP manual includes
guidance for SMZ widths adjacent to municipal water supplies, we
conclude that applying those, or the trout SMZs, in the 4(d) rule would
introduce confusion among forest landowners and practitioners.
A primary reason for citing SMZs for trout in the preamble of our
revised proposal (85 FR 59487; September 22, 2020) was that trout and
the Atlantic pigtoe are similarly sensitive to sedimentation and
thermal inputs. We acknowledge and agree with the SCDNR's point,
supported by the scientific literature, that the sedentary nature of
mussels renders them especially vulnerable to habitat degradation,
including sedimentation and pollution (e.g., ammonia, as mentioned in
the comment letter). However, some resources (including Mayer et al.
(2005), cited in SCDNR's letter) indicate that SMZ width alone may not
be an effective measure of SMZ function. For example, buffer width
significantly explained only 14 percent of a buffer's nitrogen removal
effectiveness: ``forested and wetland buffers showed no relationship
between buffer width and nitrogen removal effectiveness'' (Mayer et al.
2005, p. 5). While the Mayer study concluded that wider buffers were
more consistently effective in nitrogen removal, it also concluded that
other factors related to subsurface flow (e.g., soil type, hydrology,
biogeochemistry) were crucial. These findings regarding forested SMZ
widths agree with those from the NCFS's most recent assessment of
forestry BMPs; while the assessment found that wider buffers were
generally associated with fewer risks to water quality, a model of the
data showed a less than 10 percent probability of risk to water quality
at buffer widths of 50 feet regardless of ecoregion (i.e., Mountains,
Piedmont, Coastal Plain), and that much narrower SMZ widths in some
ecoregions achieved the same low probability of risk (Coats et al.
2017, p. 32), suggesting that there are more effective approaches to
water quality protection in silviculture than prescribing a uniform SMZ
width for all situations.
[[Page 64004]]
Our intent in the 4(d) rule for excepting incidental take resulting
from forestry and silviculture activities is to relieve some regulatory
burden on operations for which proper implementation of BMPs may offer
a net conservation benefit. Therefore, based on the best available
science and the comments we received, we have revised the 4(d) rule
language to specify outcome-based management goals necessary for
conservation of the species and its habitat to provide for the
breeding, feeding, survival, and shelter of the Atlantic pigtoe, rather
than prescribing a particular management practice with which to achieve
necessary species and habitat protection (see II. Final Rule Issued
Under Section 4(d) of the Act, below, for more information).
(12) Comment: During the first comment period, the NCFS suggested
that it would be beneficial to focus only on BMPs and not include
forest practice guidelines (FPGs) or forest certification standards in
the 4(d) rule, because the FPGs and certification standards refer to
State-approved BMPs as the guideline for management. Subsequently,
during the second comment period, two commenters from State forestry
agencies (VDOF and NCFS) 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 region and
upper Coastal Plain region, where most of the Atlantic pigtoe's known
current occupancy and proposed critical habitat is located. They also
noted that their alterative language may be useful in other future
listings of aquatic species. The suggested alternative language for the
4(d) rule exception follows: ``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 shall: (a)
Have erosion and sedimentation control measures installed to divert
surface runoff away and restrain visible sediment from entering the
waterway; (b) Allow for movement of aquatic organisms within the
waterway; and (c) 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 within the occupied
waterway, caused by direct deposition of debris or soil by the
forestry-related activity. 8. Maintain shade over the occupied waterway
similar to that observed prior to the forestry-related activity. 9.
Prohibit discharge of any solid waste, petroleum, pesticide,
fertilizer, or other chemical into the occupied waterway.''
Our Response: The Service appreciates the constructive
communications with State forestry agencies during the public comment
periods, their willingness to express the challenges that the proposed
4(d) rule posed for implementation and forestry operation oversight,
and their collaborative effort to offer alternative 4(d) rule language
that will be more straightforward to implement and communicate to
forestry practitioners. Importantly, the language offered by the NCFS
and VDOF during the second comment period also conveys the necessity of
achieving the water quality outcomes the Service intended for the
protection of Atlantic pigtoe and its habitat, while reducing the
regulatory burden associated with strict adherence to the 4(d) rule's
provisions. We have revised the 4(d) rule language to reflect these
suggested changes for the forestry exception (see Summary of Changes
from the Proposed Rule, below).
Public Comments
(13) Comment: Several comments we received, both from the public
and from three State forestry agencies (VDOF, NCFS, and SC Forestry
Commission (SCFC)), indicated the Service did not explain or justify
the necessity for two-zoned SMZs, for SMZs wider than those already
recommended by State forestry BMPs within the geographic range of the
Atlantic pigtoe, or for SMZs related to Virginia and North Carolina
trout waters being applied to the majority of waters where the Atlantic
pigtoe occurs. Some comments further suggested that references to trout
rules or BMPs beyond those already required within the range of the
Atlantic pigtoe would be confusing and challenging to implement.
Several such comments further questioned any additional conservation
benefit that SMZs wider than those currently recommended in State BMPs
would provide.
Our Response: In the preamble of our September 22, 2020, proposed
rule (85 FR 59487), we addressed comments we received on the October
11, 2018, proposed rule (83 FR 51570), that stated the proposed 4(d)
language related to ``highest standard BMPs'' was too vague or
confusing. In the September 22, 2020, proposed rule, it was our intent
to provide additional discussion and detail for the proposed 4(d)
incidental take exception resulting from silviculture. By referring to
BMPs related to trout waters, specifically SMZs, we intended to use a
frame of reference that would be familiar to forest landowners for
species sensitive to sedimentation and thermal effects on stream
waters. The proposed regulation text in the September 22, 2020,
proposed rule outlined BMPs, but did not include references to trout.
However, we understand that the references to trout waters in the
preamble of that document has caused considerable confusion for
multiple reasons, including: (1) The Atlantic pigtoe mostly occurs in
watersheds absent of trout; (2) the preamble did not clearly state how
the Atlantic pigtoe is similarly sensitive to sedimentation (a primary
factor responsible for the adoption of BMPs specific to trout waters);
and (3) multiple other regulations and recommended practices already
exist in watersheds where the Atlantic pigtoe occurs (e.g., region-
specific State BMPs, riparian buffer rules in some watersheds). We have
carefully considered and addressed the concerns of the commenters by
revising the final 4(d) rule to specify the outcome-based habitat
management goals necessary to provide habitat for the breeding,
feeding, survival, and sheltering of the Atlantic pigtoe, 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
and Regulation Promulgation, below, for more information).
(14) Comment: We received many comments, from both the public and
from State forestry agencies (SCFC and VDOF), noting that State-
approved BMPs are sufficient for the protection of the Atlantic pigtoe.
These commenters also maintained that mandatory adoption of BMPs is not
necessary as BMP implementation rates are already high.
[[Page 64005]]
Our Response: When properly implemented, BMPs can offer a
substantial improvement to water quality compared to forestry
operations where BMPs are not implemented or not properly implemented;
therefore, we have included an exception for incidental take resulting
from silviculture and forest management in the final 4(d) rule. Intact
riparian buffers (i.e., SMZs) have been cited as important contributing
factors for protecting mussels against excess sedimentation and
nutrient input from a variety of consumptive land uses (O'Driscoll et
al. 2014, pp. 87-90; Osterling and Hogberg 2014, p. 219). Streams with
forested buffers have been shown to have greater mussel species
evenness; less ammonia, nitrogen, and solar radiation input; and less
fluctuation of daily temperatures than streams with narrow, grassy
riparian zones (Morris and Corkum 1996, pp. 580-584).
The commenters also provided information that indicates forestry
BMP implementation across the nation and Southeast region are generally
high; we agree, but assert that implementation of effective BMPs in
forest management is not universal. A 2018 report by the Southern Group
of State Foresters (SGSF) shows that overall BMP implementation rates
have increased over the last 20 years, more markedly in some States
than in others (e.g., BMP implementation in Virginia was the lowest of
all the southeastern States (76 percent) as recently as 2007, but
increased to 94 percent by 2016 (SGSF 2018, p. 10)). Virginia's most
recent BMP monitoring report indicated that audits of 240 sites in 2018
resulted in findings of significant water quality risk in only four
cases, and that none of them had active sedimentation during the audit
visit (VDOF 2020, p. 3). However, they also reported that despite
overall high BMP implementation rates, three very important categories
that often lead to water quality concerns (roads, crossings, and skid
trails), sometimes lag behind other categories with regard to
implementation percentage (VDOF 2020, p. 3). Data from the SGSF show
North Carolina has the lowest overall implementation rate (84 percent)
in the Southeast, with other State implementation rates ranging from 89
to 99 percent (SGSF 2018, p. 10). The most recent survey of BMP
implementation in North Carolina showed that implementation rates--
while averaging 84 percent Statewide--varied among regions within the
State, and 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 or unused BMPs and their associated risks
to water quality and habitat, as illustrated by these reports, 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 or hamper recovery of the species.
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 our inclusion of a 4(d) incidental take exception resulting
from forestry and silviculture for the Atlantic pigtoe, but the
remaining presence of sedimentation risk supports the need to specify
conditions required for the exception to apply. Forest management
activities in the range of the Atlantic pigtoe that are not expected to
meet the conditions of the 4(d) rule exception could still occur via
consultation with the Service under section 7 or a conservation
agreement under section 10 of the Act.
Existing BMPs will be sufficient for the protection of the Atlantic
pigtoe if they are widely implemented in watersheds where the species
occurs and are implemented appropriately such that forest management
operations maintain compliance with State regulatory requirements, and
that they achieve management goals related to conserving and
maintaining suitable habitat for the Atlantic pigtoe, which closely
mirror State forestry regulations on water quality. State-approved
BMPs, properly implemented, protect water quality and help conserve
aquatic species, including the Atlantic pigtoe. Forest landowners who
properly implement those BMPs are helping conserve the species, and
this final 4(d) rule is an incentive for all landowners to properly
implement those BMPs to avoid any possible take liability. Further,
those forest landowners who are third-party-certified to a credible
forest management standard are providing audited certainty that BMPs
are being implemented across the landscape.
(15) Comment: Some of the comments concerning BMPs also suggested
that assessments of water quality using aquatic insects as indicators
confirm that BMPs are protective of water quality and habitat for
aquatic species.
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 assertion 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 benthic invertebrates
like the Atlantic pigtoe, or a proxy for recolonization of mussels
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 animals, such as unionid freshwater
mussels (e.g., the Atlantic pigtoe). Some research comparing how
macroinvertebrate insect assessments relate to other taxa (e.g.,
amphibians, fishes, zooplankton) indicates that insect assessments do
not correspond well in evaluations of watershed land use or
anthropogenic effects on water quality and water resources for these
species (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). The risks of water
quality impacts to many taxa are emphasized in studies, highlighting
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). Freshwater mussels have been recognized for decades as
important for biomonitoring of environmental health
[[Page 64006]]
because of their sedentary nature, long lifespans, and complex life
history (Van Hassel and Farris 2007, entire).
A number of other differences between aquatic insects and unionid
mussels makes comparisons of their responses to water quality tenuous
and demands careful consideration in applying the results from one to
the other. Most aquatic insects (particularly those widely used in
assessments) are not rare species; thus, the impact of any single or
isolated event is likely to be more easily masked at the population
level. Further, the aquatic larval phase of macroinvertebrate insects
typically emphasized in assessments is of short duration (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; Voxhell 2002, p. 375)) and acute effects in the recent
past (less than 5 years) may not present in assessment data. This is
facilitated by the immigration of aquatic insects back into impacted
stream reaches by downstream drift or other mechanisms, including the
adult winged flight stage, which allows immigration from other nearby
waterbodies or from downstream reaches (Waters 1972, entire).
Conversely, Atlantic pigtoe is a rare, sedentary mussel living in
stream bed substrates, with different ecological requirements and a
decades-long lifespan. Extirpation of Atlantic pigtoe from a stream
reach after an impact to the population (e.g., a sedimentation event
that suffocates mussels in the stream bed or impairs reproduction in a
given year) would have longer lasting consequences, and recolonization
can be hampered by many factors, such as: The Atlantic pigtoe's
typically small population sizes, low reproductive success, instream
barriers to the migration of host fishes, distance between populations
that can serve as potential recolonization sources, and long generation
time (approximately 10 to 12 years; Service 2021, p. 66). Again, we
recognize that widespread implementation of BMPs has unquestionable
benefits to water quality and likely Atlantic pigtoe habitat; however,
we also recognize that additional quantification of the effects of BMPs
on mussels would be valuable, particularly given the differential life
history characteristics between macroinvertebrate taxa.
(16) Comment: Some commenters stated that the Service did not
provide evidence that the Atlantic pigtoe 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: In our October 11, 2018, proposed rule (83 FR 51570),
we included several details related to the ecological requirements of
the Atlantic pigtoe (e.g., high dissolved oxygen, silt-free
substrates), referenced the SSA report, and included a summary of risk
factors to the species (e.g., primarily habitat degradation, including
the buildup of fine sediments, the loss of flowing water, instream
habitat fragmentation, and impairment of water quality). In our
September 22, 2020, revisions to the proposed rule (85 FR 59487), we
provided additional information, including statements on the effects of
sedimentation to the Atlantic pigtoe (e.g., Silted stream bottoms
suffocate filter feeding animals and decrease the stream's insect
population, an important source of food for host fish (VDOF 2011, p.
37). Siltation also makes mussel and host fish reproduction difficult
(Service 2021, pp. 29, 41, 47, 57). Transformed juvenile mussels
require clean gravel/coarse sand substrates with oxygenated water to
successfully become adults (Service 2021, p. 11). Lastly, a silted
bottom substrate can result in mortality (Service 2021, pp. 29, 59)).
(see 85 FR 59490). The September 22, 2020 revisions to the proposed
rule were specific to the 4(d) rule and designation of critical
habitat, and it directed readers to the initial listing proposal, the
SSA report, and previous Federal actions for additional detailed
information about the Atlantic pigtoe. The commenters may not have
realized that the September 22, 2020, document discussed a subset, but
did not repeat the entirety, of the proposals published in the October
11, 2018, proposed rule; the focus of the September 22, 2020, document
was on the substantive revisions proposed. However, the concerns of the
commenters have been carefully considered and are addressed in this
rule by removing references to trout and providing more detailed
information about the Atlantic pigtoe, its habitat requirements, and
its sensitivity to threats, particularly sedimentation, using the best
available scientific information about this species and relevant
information from related species (i.e., freshwater bivalves).
(17) 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 in a 4(d) rule's exceptions, and that they think that
approach should also apply to the Atlantic pigtoe's 4(d) rule.
Our Response: All 4(d) rules establish species-specific regulations
to provide for the conservation of a threatened species and must be
considered within the context of that species' needs. Because all
species are unique, measures included in some 4(d) rules should not be
considered to set a precedent for future 4(d) rules on other species.
Although it may be practical to consider the implications of how 4(d)
rules are implemented for species with overlapping geographic ranges
and habitat needs, we still must ensure that each 4(d) rule establishes
the regulations necessary and advisable to provide for the conservation
of species listed as threatened. We also note that several of the
commenters' examples do not apply to threatened species or are not from
a 4(d) rule. For example, commenters referenced language in the
preamble of the final rule listing the Black Warrior waterdog (Necturus
alabamensis) as an endangered species and designating critical habitat
(83 FR 257; January 3, 2018) that refers to Alabama's forestry BMPs in
the Summary of Factors Affecting the Species discussion. Other comments
we received referred to BMP discussions not for species' listing
actions but for critical habitat designations (e.g., candy darter
(Etheostoma osburni), diamond darter (Crystallaria cincotta), and big
sandy crayfish (Cambarus callainus)) 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 (82 FR 43885; September 20, 2017) when our
regulations at 50 CFR 17.31 applied to threatened species all of the
provisions of 50 CFR 17.21 for endangered species unless we promulgated
species-specific provisions under section 4(d) of the Act for the
threatened species; the pearl darter 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 that rule
also discussed poor silviculture under the Summary of Factors Affecting
the Species. Finally, some comments referenced the trispot darter
(Etheostoma trisella), which is a threatened species listing with a
species-specific 4(d) rule that includes an exception for silviculture.
The final 4(d) rule for the trispot darter (85 FR 61619; September 30,
2020) has an incidental take exception for silviculture practices and
forest management activities that includes
[[Page 64007]]
requirements for implementing State BMPs for SMZs, stream crossings,
and forest roads, among others; removing logging debris from stream
channels; and limiting activities to only a portion of the year if they
involve spawning habitat. Although the trispot darter 4(d) rule is the
most similar among the commenters' examples to this rule for the
Atlantic pigtoe (i.e., a threatened species listing rule with a 4(d)
rule incidental take exception for silviculture), we are required to
tailor the 4(d) rule to the Atlantic pigtoe, based on what is necessary
and advisable to provide for the conservation specifically of the
Atlantic pigtoe. Furthermore, a mobile darter has a different life
history than a sessile freshwater mussel, and likewise has different
responses to sedimentation or water quality inputs. The Service
considers existing local environmental rules, local environmental
conditions, and other factors, in toto, and tailors regulations to the
management needs of species within that context to ensure prohibitions
and exceptions to prohibitions for threatened species outlined in 4(d)
rules are specific to the considerations for each particular species.
(18) Comment: Two comments expressed concern that, if the proposal
were made final with forest management requirements in the 4(d) rule's
exceptions that exceed State-recommended BMPs for the areas in which
the Atlantic pigtoe occurs, the 4(d) rule for the Atlantic pigtoe would
set a precedent not founded in the best available scientific
information.
Our Response: See our response to (17) Comment, above. The species-
specific nature of 4(d) rules is inherently incompatible with setting
precedents because we must consider the needs of the individual species
being listed within each rule. The Atlantic pigtoe's 4(d) rule does not
prescribe management restrictions; rather, it provides for the
conservation of the species by outlining prohibitions (e.g., take) that
are compatible with the overall conservation of the species, and sets
forth exceptions to those prohibitions for activities that are expected
not to impede conservation. The Atlantic pigtoe's 4(d) rule's
exceptions to prohibitions provide specific information on the
conditions required for being excepted from incidental take resulting
from certain activities. The 4(d) rule does not prohibit silvicultural
management; activities resulting in incidental take not included in the
4(d) rule's exceptions to prohibitions could still be covered under a
conservation agreement under section 10 of the Act or authorized via
section 7 of the Act. The 4(d) rule's incidental take exceptions are
intended to provide some relief from regulatory burden, while outlining
the conditions necessary and advisable for the conservation of the
species.
As discussed above (see our response to (13) Comment, above), we
have revised the 4(d) rule by removing the two-zoned SMZ requirement
over concerns related to confusion and challenging implementation of
multiple sets of forestry-related rules and guidelines already in place
within the geographic range of the Atlantic pigtoe.
(19) Comment: During the first public comment period, two
commenters noted that the meaning of ``highest-standard'' BMPs as
stated in the proposed 4(d) rule is unclear. They indicate that each
forestry BMP stands on its own merits; there are not different classes
or degrees or standards of BMPs. Indeed, on some sites, it may be
adequate to apply a limited number of BMPs, while on other sites, a
more comprehensive set of BMPs may be appropriate. One of the
commenters suggested that to avoid confusion, the 4(d) rule should say,
``State-approved best management practices'' or an equivalent phrase.
After revisions to the 4(d) rule, during the second comment period,
several commenters requested that we revise the proposed 4(d) rule to
``only reference State-approved BMPs without addition or
modification.'' Another commenter (NCFS) suggested an alternative to
incorporate by reference a section of the Code of Federal Regulations
(CFR) related to compliance with the exemption from permitting to
discharge dredged or fill material into waters of the United States
(i.e., 33 CFR 323.4(a)(6)(ix): The discharge shall not take, or
jeopardize the continued existence of, a threatened or endangered
species as defined under the Endangered Species Act, or adversely
modify or destroy the critical habitat of such species.) The NCFS
asserted that a 4(d) rule for the Atlantic pigtoe should be written to
cross-reference these existing Federal regulations and apply concurrent
compliance with the requirements of both the Clean Water Act (CWA; 33
U.S.C. 1251 et seq.) and Endangered Species Act, through a blanket
section 7 consultation.
Our Response: In response to the comments from the first public
comment period, we modified the proposed 4(d) rule language to provide
specific details for SMZ widths that will be most protective of the
habitat for the species (85 FR 59487; September 22, 2020), similar to
those ``more substantial'' BMPs considered for streams that are
designated ``trout waters'' and already implemented by both Virginia's
and North Carolina's State forestry programs. We also modified the 4(d)
rule language to use the phrase ``State-approved BMPs'' as suggested by
the original commenter.
In response to additional comments we received during the second
comment period (specifically those suggesting reference to the U.S.
Army Corps of Engineers' regulations at 33 CFR 323.4(a)(6)(ix), which
set forth exemptions for CWA permitting requirements for the
construction of farm roads, forest roads, or temporary roads for moving
mining equipment), we find that these regulations are not designed to
conservation species such as Atlantic pigtoe. The CFR reference
suggested by the commenter is provides no specific guidance on
implementing the exempted activities to avoid take of or jeopardy to
endangered or threatened species. The use of State-approved BMPs for
forestry to meet the CWA exemption are not species conservation
regulatory requirements. Furthermore, State forestry BMP manuals do not
represent a law or requirement; they are a set of recommended practices
for achieving compliance with water quality regulations, and BMP
manuals are subject to change. In fact, the NCFS has recently proposed
revisions to the NC 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 4(d) rule. It is the
responsibility of the Service under the Endangered Species Act to
provide guidance on how to avoid take of or jeopardy to endangered and
threatened species, and the Act guides the Service to establish a
species-specific 4(d) rules for threatened species, including language
stating prohibitions and exceptions to prohibitions for the protection
of the species.
Finally, nothing in this final 4(d) rule will change in any way the
consultation requirements under section 7 of the Act. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between Federal agencies and
the Service, where appropriate.
(20) Comment: Two commenters stated that SMZs are part of a suite
of BMPs and that they should not be proposed alone.
Our Response: We proposed the incidental take exception resulting
from forestry to include multiple State-approved BMPs, highlighting
considerations for SMZs because of their importance to stream habitat,
along with considerations for stream
[[Page 64008]]
crossings, skid trails, and access roads. However, commenters have
demonstrated particular concern and confusion over that portion of the
proposed incidental take exception resulting from forestry activities
with specifications on SMZs. As noted in our response to (13) Comment,
above, we have revised the 4(d) rule's incidental take exception to
include the suite of BMPs.
(21) Comment: During the first comment period, the NCFS commented
that forestry-related, site-disturbing activities must protect riparian
areas, indicating that the multiple layers of existing State-enacted
riparian zone protections are sufficient to restrain sediment from
negatively impacting habitat for the Atlantic pigtoe and other species.
They referenced a U.S. Department of Agriculture study demonstrating
that the use of BMPs and compliance with the State's standards
effectively maintained water quality and sustained the populations of
benthic macroinvertebrates, and noted that the results from this study
demonstrate that forestry operations will not impact Atlantic pigtoe
habitat. They recommended that compliance with State-enacted riparian
buffer rules should be deemed as concurrent compliance with the 4(d)
rule's prohibitions as well as concurrent protection of critical
habitat. In addition, we received several comments indicating that a
4(d) rule that includes overly specific prescriptive measures for
protecting water quality and habitat for the Atlantic pigtoe would be
confusing to communicate to landowners and challenging to implement.
Our Response: State regulations are susceptible to change (as
described in the SSA report, section 4.2); therefore, it is necessary
to detail the requirements needed for the Atlantic pigtoe in the
Federal listing rule, which includes the 4(d) rule. The reference to
the paired watershed study is not specifically relevant to the Atlantic
pigtoe, as that study focused on water quality only (not instream or
streamside habitat) and impacts to benthic macroinvertebrates that did
not include freshwater mussels. Therefore, in our 4(d) rule, we
articulate outcome-based habitat management that, if followed, will
eliminate sedimentation threats to Atlantic pigtoe habitat and is
excepted from incidental take prohibitions.
(22) Comment: One commenter recommended that the Service remove
from the descriptions of critical habitat units references to
silviculture being a potential source of pollution. The commenter
indicated that the forestry sector in general believes that such
references may have had some credence a generation or more ago, but the
advent of BMPs, their proven effectiveness, and high implementation
rates make such references incorrect today.
Our Response: The best available science indicates that proper
implementation of forestry BMPs reduces negative effects on water
quality compared to historical silvicultural practices and compared to
current practices that do not apply or properly implement BMPs.
However, 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 high sediment loads. As
noted 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). We also acknowledge that
there are multiple sources of sediment and other pollutants. That said,
we have removed from the critical habitat descriptions the statements
about silvicultural runoff as a source of pollution, and we have
replaced them with language about management activities that will
benefit habitat for the species, such as riparian buffer restoration,
reduced surface and groundwater withdrawals, stormwater retrofits,
elimination of direct stormwater discharges, and implementation of the
highest levels of wastewater treatment practicable.
(23) Comment: One commenter noted that the Service's proposed
critical habitat designation for the Atlantic pigtoe is inadequate to
ensure the conservation of the species because the Service has only
proposed critical habitat within the species' currently occupied
habitat, neglecting the essential protection of unoccupied habitat
pursuant to 16 U.S.C. 1532(5)(A)(ii).
Our Response: We did not propose to designate any areas outside the
geographical area currently occupied by the species because we did not
find any unoccupied areas to be essential for the conservation of the
species. We have determined that the designation of critical habitat
within eight occupied management units currently categorized as
moderately or highly resilient across the physiographic representation
of the species' range will conserve the species. Efforts to improve the
resiliency of populations in currently occupied streams should increase
viability to the point that the protections of the Act are no longer
necessary. See Criteria Used to Identify Critical Habitat, below, for
more information.
(24) Comment: One commenter noted that the Service's failure to
protect as critical habitat the currently unoccupied habitat across
Georgia, South Carolina, North Carolina, and Virginia that soon may be
subject to anticipated State restocking efforts undermines the
Service's charge under the Act to fashion a concerted regulatory scheme
to ensure the long-term viability of this species by bolstering its
range and resiliency. The commenter called upon the Service to
designate suitable, unoccupied critical habitat in each of the 12 river
basins in the Atlantic pigtoe's historical range to prevent the further
deterioration of their once-and-future habitat.
Our Response: We are working in coordination with State efforts to
re-establish extirpated Atlantic pigtoe populations via captive
propagation. Designation of critical habitat is not required for these
species restoration efforts, and as discussed above (see our responses
to (8) Comment and (23) Comment, above), we have determined that
designation of unoccupied critical habitat is not essential for the
conservation of the species. In our final 4(d) rule for the Atlantic
pigtoe, we are excepting incidental take resulting from captive
propagation and reintroduction efforts, as we recognize these efforts
further the conservation of the species. Excepting incidental take
resulting these activities under the 4(d) rule enables each State to
proceed with stocking that is not subject to incidental take. In
addition, 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, the final 4(d) rule also
provides that any qualified employee or agent of a State conservation
agency that is a party to a cooperative agreement with the Service in
accordance with section 6(c) of the Act, who is designated by his or
her agency for such purposes, would be able to conduct activities
designed to conserve Atlantic pigtoe that may result in otherwise
prohibited take without additional authorization.
I. Final Listing Determination
Background
Please refer to the October 11, 2018, proposed rule (83 FR 51570),
the September 22, 2020, document (85 FR 59487), and the SSA report for
a full summary of species information. These documents are available at
http://
[[Page 64009]]
www.regulations.gov under Docket No. FWS-R4-ES-2018-0046.
The Atlantic pigtoe is a small freshwater mussel with a sub-
rhomboidal shaped shell. Although larger specimens exist, the Atlantic
pigtoe rarely exceeds 50 millimeters (mm) (2 inches (in)) in length.
The known historical range of the Atlantic pigtoe included 12
populations in Atlantic river basins from Virginia to Georgia. However,
surveys conducted from 2005 to 2019 indicate that the currently
occupied range of the Atlantic pigtoe consists of seven populations in
Virginia and North Carolina. The Atlantic pigtoe is dependent on clean,
moderate-flowing water with high dissolved oxygen content in creek and
riverine environments. Historically, the most abundant populations
existed in creeks and rivers with excellent water quality, and where
stream flows were sufficient to maintain clean, silt-free substrates.
It is associated with gravel and coarse sand substrates at the
downstream edge of riffles (shallow water with rapid currents running
over gravel or rocks), and less commonly occurs in cobble, silt, or
sand detritus mixtures. Because this species prefers more pristine
conditions, it typically occurs in headwaters of rural watersheds.
The Atlantic pigtoe is presumed to be an omnivore. Adults primarily
filter feed on a wide variety of microscopic particulate matter
suspended in the water column, including phytoplankton, zooplankton,
bacteria, detritus, and dissolved organic matter, although juveniles
tend to pedal feed in the sediment (Alderman and Alderman 2014, p. 9).
Like most freshwater mussels, the Atlantic pigtoe has a unique life
cycle that relies on fish hosts for successful reproduction. Following
release from the female mussel, sticky packets of floating glochidia
(larvae) attach to the gills and scales of host minnows. The larvae
stay attached to the host fish until they complete metamorphosis, when
they release from the fish and fall to the substrate.
The Atlantic pigtoe has been documented in all major river basins
in the Atlantic coastal drainages from the James River Basin in
Virginia south to the Altamaha River Basin in Georgia, and from the
foothills of the Appalachian Mountains to the Coastal Plain. However,
abundance and distribution of the species has declined, with the
species currently occupying approximately 40 percent of its historical
range. Most of the remaining populations are small and fragmented, only
occupying a fraction of reaches that were historically occupied. Recent
surveys found Atlantic pigtoes remain in seven populations in Virginia
and North Carolina; however, only three populations have multiple
documented occurrences within the past 16 years. This decrease in
abundance and distribution has resulted in largely isolated
contemporary populations. Evidence suggests that the range reduction of
the species corresponds to habitat degradation resulting from the
cumulative impacts of land use change and associated watershed-level
effects on water quality, water quantity, habitat connectivity, and
instream habitat suitability.
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 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
Service 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,
[[Page 64010]]
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 at 50
CFR 424.11(d) (84 FR 45020; August 27, 2019). 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 of the term ``foreseeable future''; rather they codified
a framework that sets forth how the Service will determine what
constitutes the foreseeable future based on our long-standing practice.
However, the regulations at 50 CFR 424.11(d) do not apply to this final
rule because the October 11, 2018, proposed rule for the Atlantic
pigtoe (83 FR 51570) published prior to the effective date of the final
rule amending 50 CFR 424.11(d) (84 FR 45020; August 27, 2019). Our
assessment of the ``foreseeable future'' for the Atlantic pigtoe, as
presented in our October 11, 2018, proposed rule and this final rule,
has not changed.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. However, it does 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 report; the full SSA
report can be found at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-
R4-ES-2018-0046.
To assess Atlantic pigtoe viability, we used the three conservation
biology principles of resiliency, redundancy, and representation (the
``3 Rs'') (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency
supports the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), 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 described the beneficial and risk
factors influencing the species' viability.
The SSA process can be divided into three sequential stages. During
the first stage, we evaluated the individual species' life-history
needs. In the next stage, we assessed the historical and current
condition of the species' demographics and habitat characteristics,
including an explanation of how the species arrived at its current
condition. In the final stage, we made 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 the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
To evaluate the current and future viability of the Atlantic
pigtoe, we assessed a range of conditions to allow us to consider the
species' resiliency, representation, and redundancy. Populations were
delineated using the 12 river basins that Atlantic pigtoe mussels
historically occupied: The James, Chowan, Roanoke, Tar, Neuse, Cape
Fear, Pee Dee, Catawba, Edisto, Savannah, Ogeechee, and Altamaha River
basins. Because the river basin level is at a very coarse scale,
populations were further delineated using management units (MUs). The
MUs were defined as one or more U.S. Geological Survey Hydrological
Unit Code (HUC) 10 watersheds that species experts identified as the
most appropriate unit for assessing population-level resiliency. To
provide context for the current condition of the species using the 3
Rs, we considered the historical range as context for the species'
resiliency, redundancy, and representation on the landscape in the
past. However, in addressing the current condition of the 3 Rs, only
extant populations were analyzed.
To assess resiliency, we qualitatively analyzed data related to
three population factors (MU occupancy, recruitment, and abundance) and
four habitat elements (water quality, water quantity/flow, instream
substrate, and habitat connectivity). Overall population condition
rankings and habitat condition rankings were determined by combining
these factors and elements.
We described representation for the Atlantic pigtoe in terms of
river basin variability (known from 12 historical river basins,
currently extant in 7), physiographic variability (Mountains, Piedmont,
and Coastal Plain), and historical latitudinal variability (Virginia
south to Georgia). We assessed Atlantic pigtoe redundancy by first
evaluating occupancy within each of the hydrologic units (i.e., HUC10s)
that constitute MUs, and then evaluating occupancy at the MU, and
ultimately the population level.
Factors Influencing Atlantic Pigtoe Viability
Aquatic systems face a multitude of natural and anthropogenic
factors that may impact the status of species within those systems
(Neves et al. 1997, p. 44). Generally, these factors can be categorized
as either environmental stressors (e.g., development, agriculture
practices, improper forest management) or systematic changes (e.g.,
climate change, invasive species, dams or other barriers). The largest
threats to the future viability of the Atlantic pigtoe consist of
habitat degradation from stressors influencing water quality, water
quantity, instream habitat, and habitat connectivity. All of these
threats 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
(Service 2021, pp. 45-61). We did not find that the species faces
significant threats from overutilization for commercial,
[[Page 64011]]
recreational, scientific, or education purposes, or from disease or
predation.
Environmental Stressors
Development: Development refers to urbanization of the landscape,
including (but not limited to) land conversion for urban and commercial
use, infrastructure (roads, bridges, utilities), and urban water uses
(water supply reservoirs, wastewater treatment, etc.). The effects of
urbanization may include alterations to water quality, water quantity,
and habitat (both in stream and streamside) (Ren et al. 2003, p. 649;
Wilson 2015, p. 424). These alterations adversely affect both Atlantic
pigtoe adults, which require clear, flowing water with a temperature
less than 35 degrees Celsius ([deg]C) (95 degrees Fahrenheit ([deg]F))
and a dissolved oxygen greater than 3 milligrams per liter (mg/L), and
juveniles, which require very specific interstitial chemistry to
complete that life stage: Low salinity (similar to 0.9 parts per
thousand (ppt)), low ammonia (similar to 0.7 mg/L), low levels of
copper and other contaminants, and dissolved oxygen greater than 1.3
mg/L.
Impervious surfaces associated with development negatively affect
water quality when pollutants that accumulate on impervious surfaces
are washed directly into the streams during storm events. Storm water
runoff affects such water quality parameters as temperature, pH,
dissolved oxygen, and salinity, which in turn alter the water chemistry
and could make habitat unsuitable for the Atlantic pigtoe.
Concentrations of contaminants, including nitrogen, phosphorus,
chloride, insecticides, polycyclic aromatic hydrocarbons, and personal
care products, increase with urban development (Giddings et al. 2009,
p. 2; Bringolf et al. 2010, p. 1311).
Urban development can also lead to increased variability in
streamflow, typically increasing the amount of water entering a stream
after a storm and decreasing the time it takes for the water to travel
over the land before entering the stream (Giddings et al. 2009, p. 1).
Stream habitat is altered either directly via channelization or
clearing of riparian areas, or indirectly via high stream flows that
reshape the channel and cause sediment erosion (Giddings et al. 2009,
p. 2). Impervious surfaces associated with increased development cause
rain water to accumulate and flow rapidly into storm drains, thereby
becoming overheated, which can stress or kill mussels when it enters
streams. Pollutants like gasoline, oil, and fertilizers are also washed
directly into streams and can kill mussels and other aquatic organisms.
The large volumes and velocity of water, combined with the extra debris
and sediment entering streams following a storm, can stress, displace,
or kill Atlantic pigtoes and the host fish species on which they
depend. Many of the known host fish of the Atlantic pigtoe can tolerate
short periods of turbidity associated with rain events; however, the
cyprinid host fish typically do not persist in streams with
consistently high sedimentation. Changes in flow may also result in
turbidity that can reduce feeding efficiency and eliminate spawning
habitat due to lack of clean gravel substrate.
A further risk of urbanization is the accompanying road development
that often results in improperly constructed culverts at stream
crossings. These culverts act as barriers, either if flow through the
culvert varies significantly from the rest of the stream, or if the
culvert ends up being perched above the stream bed so that host fish
(and, therefore, the Atlantic pigtoe) cannot pass through them. This
leads to loss of access to quality habitat, as well as fragmented
habitat and a loss of connectivity between populations. This can limit
both genetic exchange and recolonization opportunities.
All of the river basins within the range of this species are
affected to some extent by development, ranging from 3 percent of the
Black River subbasin in the Cape Fear River Basin to 70 percent of the
Crabtree Creek subbasin in the Neuse River Basin (based on the 2011
National Land Cover Data). The Neuse River basin in North Carolina
contains one-sixth of the entire State's population, indicating heavy
development pressure on the watershed. As another example, the Middle
James MU (in the James population) contains 159 impaired stream miles
(i.e., waters that exceed water quality standards for a particular
parameter), 2 major discharges, 32 minor discharges, and over 1,300
road crossings. Similarly, the Muddy Creek MU is currently made up of
12.3 percent impervious surfaces. For complete data on all of the
populations, refer to appendix C of the SSA report.
Agricultural Practices: The main impacts to the Atlantic pigtoe
from agricultural practices are from nutrient pollution and water
pumping for irrigation. Fertilizers and animal manure, which are both
rich in nitrogen and phosphorus, are the primary sources of nutrient
pollution from agricultural sources when agricultural best management
practices are not used. 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 and ground waters
causing algal blooms. These algal blooms can harm freshwater mussels by
suffocating host fish and decreasing available oxygen in the water
column.
It is common practice to pump water for irrigation from adjacent
streams or rivers into a reservoir pond, or to spray the stream or
river water directly onto crops. If the water withdrawal is excessive
or done illegally, this may cause impacts to the amount of water
available to downstream sensitive areas during low flow months,
resulting in dewatering of channels and stranding of mussels, leading
to desiccation and death. The Cape Fear River basin has 33 reservoirs,
many of them supplying water to some of the most populated areas in
North Carolina, including the Triad (Greensboro and High Point), Chapel
Hill, Fayetteville, and Wilmington. All told, this basin contains one-
fifth of the entire State's population and is the most industrialized
basin, as well as home to the most large-scale livestock operations in
the State. However, according to the 2011 National Land Cover Data, all
of the watersheds within the range of the Atlantic pigtoe are affected
by agricultural land uses, most with 20 percent or more of the
watershed having been converted to agricultural use.
Incompatible 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 are implemented poorly, these
practices can also contribute to the myriad of stressors facing aquatic
systems in the Southeast. 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 of
riparian areas alters the macroinvertebrate and other aquatic species
richness and abundance composition in streams (Wenger 1999, p. 35;
Caldwell et al. 2014, p. 3). As
[[Page 64012]]
stated above, the Atlantic pigtoe is sensitive to changes in
temperature, and sustained temperature increases will stress and
possibly lead to mortality for this 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 sediment traveling downstream into sensitive habitats. These
effects lead to stress and mortality for the species, as discussed
under Development, above, and as reported in studies of forestry-
related sedimentation effects on survival of aquatic invertebrates
(Osterling et al. 2008, pp. 1368-1369; Reid et al. 2013, pp. 571, 577;
O'Driscoll et al. 2014, pp. 87-90; Osterling and Hogberg 2014, pp. 215-
217, 219; Osterling 2015, pp. 448-450; Osterling 2019, pp. 444, 446-
448). While BMPs are widely adhered to now, they were not historically
a common practice, and implementation is still imperfect. The most
recent surveys of BMP implementation rates in North Carolina show that
they average approximately 83-90 percent in river basins where Atlantic
pigtoe occurs (Coats 2017, p. 38), and in Virginia, the most recent
average Statewide BMP implementation rate was 91.8 percent (VDOF 2020,
p. 2). Accordingly, while incompatible implementation is rare, the
failure to implement BMPs or inadequate implementation can have
negative effects on sensitive aquatic species. Acute impacts associated
with episodic events may be particularly consequential for long-lived,
sedentary species like the Atlantic pigtoe. Further, the most recent
assessment of forestry BMPs in North Carolina reported that improperly
implemented BMPs associated with SMZs and stream crossings were among
the most frequently associated with risks to water quality (Coats 2017,
p. 9); VDOF similarly identified stream crossings, along with roads and
skid trails, among the BMP categories frequently associated with water
quality concerns (VDOF 2020, p. 3).
Systemic Changes
Climate Change: Aquatic systems are encountering changes and shifts
in seasonal patterns of precipitation and runoff as a result of climate
change. While mussels evolved in habitats that experience seasonal
fluctuations in discharge, global weather patterns can have an impact
on the normal regimes (e.g., El Ni[ntilde]o or La Ni[ntilde]a). Both
excessively high (i.e., floods and storms) and excessively low (i.e.,
droughts) flows can adversely affect the species.
As to droughts, even naturally occurring low flow events can cause
mussels to become stressed, either because they must exert significant
energy to move to deeper waters or they may succumb to desiccation.
Because late summer and early fall are stressful periods for the
species due to low flows, droughts during this time of year can be
especially harmful, resulting in increased mortality rates. Atlantic
pigtoe habitat must have adequate flow to deliver oxygen, enable
passive reproduction, and deliver food to filter-feeding mussels.
Further, flow removes contaminants and fine sediments from interstitial
spaces, preventing mussel suffocation. Droughts have impacted all river
basins within the range of Atlantic pigtoe, from an ``abnormally dry''
ranking for North Carolina and Virginia in 2001 on the Southeast
Drought Monitor scale to the highest ranking of ``exceptionally dry''
for the entire range of the species in 2002 and 2007. In 2015, the
entire Southeast ranged from ``abnormally dry'' to ``moderate drought''
or ``severe drought.'' These data covered the first week in September,
which, as noted above, is a very sensitive time for drought to be
affecting the species. The Middle Neuse tributaries of the Neuse River
basin had consecutive drought years from 2005 through 2012, indicating
sustained stress on the species over a long period of time.
Increases in the frequency and strength of storms events alter
stream habitat. Stream habitat is altered either directly via
channelization or clearing of riparian areas, or indirectly via high
stream flows 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
Atlantic pigtoes and the host fish species on which they depend.
Sedentary freshwater mussels have limited ability to seek refuge
from droughts and floods, and they are completely dependent on specific
water temperatures to complete their physiological requirements.
Changes in water temperature lead to stress, increased mortality, and
also increase the likelihood of extinction.
Invasive Species: Nonnative species are invading aquatic
communities and altering biodiversity by competing with native species
for food, light, or breeding and nesting areas in many areas across the
range of the Atlantic pigtoe. For example, the Asian clam (Corbicula
fluminea) alters benthic substrates, competes with native species for
limited resources, and causes ammonia spikes in surrounding water when
they die off en masse. Native mussel growth is negatively associated
with Asian clam abundance, indicating invasive clams may be a pervasive
stressor to native species (Haag et al. 2021, pp. 451-454). Juvenile
mussels need low levels of ammonia to survive, and freshwater mollusks
are more sensitive than previously known to some chemical pollutants,
including ammonia (Augspurger et al. 2003, entire and references
therein). The Asian clam is ubiquitous across the southeastern United
States and is present in watersheds across the range of the Atlantic
pigtoe.
The flathead catfish (Pylodictis olivaris) is an apex predator that
feeds on almost anything, including other fish, crustaceans, and
mollusks. Predation by flathead catfish diminishes host fish
communities, reducing the amount of fish available as hosts for the
mussels to complete their glochidia life stage. Introductions of
flathead catfish into rivers in North Carolina and Georgia have led to
steep declines in numbers of native fish (Service 2021, p. 59). The
flathead catfish has been documented in six of the seven river systems
currently inhabited by the Atlantic pigtoe (James, Roanoke, Tar, Neuse,
Cape Fear, and Yadkin-Pee Dee).
Hydrilla (Hydrilla verticillata), an aquatic plant, alters habitat,
decreases flows, and contributes to sediment buildup in streams.
Hydrilla occurs in several watersheds where the Atlantic pigtoe occurs,
including recent documentation from the upper Neuse system and the Tar
River. The dense growth is altering the flow in these systems and
causing sediment buildup, which can cause suffocation in filter-feeding
mussels. While data are lacking on hydrilla currently having
population-level effects on the Atlantic pigtoe, the spread of this
invasive plant is expected to increase in the future.
Dams and Barriers: Extinction and extirpation of North American
freshwater mussels 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 mussels 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
[[Page 64013]]
threaten the survival and reproduction of many mussel species.
Because Atlantic pigtoes use smaller host fish (e.g., darters and
minnows), they are even more susceptible to impacts from habitat
fragmentation due to increasing distance between suitable habitat
patches and a low likelihood of host fish swimming over that distance.
Even improperly constructed culverts at stream crossings can act as
significant barriers and have some similar effects as dams on stream
systems (see discussion under Development, above). These barriers not
only fragment habitats along a stream course, they also contribute to
genetic isolation of the Atlantic pigtoe. Nearly all of the MUs
containing Atlantic pigtoe populations have been impacted by dams, with
as few as 2 dams in Mill Creek in the James River basin to 237 dams
throughout the Middle Neuse basin (Service 2021, appendix D). The
Middle Neuse also contains over 5,000 stream crossings, so connectivity
in that basin has been severely affected by barriers. Only the Edisto
River basin within the range of the Atlantic pigtoe has not been
impacted by dams.
Regulatory Mechanisms
State Endangered Species Laws
Each state within the range of the Atlantic Pigtoe has state-level
legislation modeled after the federal Endangered Species Act: In
Virginia it is both the Virginia Endangered Species Act and the
Endangered Plant and Insect Species Act, in North Carolina it is the
North Carolina Endangered Species Act, in South Carolina it is the
Nongame and Endangered Species Conservation Act, and in Georgia it is
the Endangered Wildlife Act. Animal species that are protected by the
state laws are regulated by state wildlife agencies: The Virginia
Department of Game and Inland Fisheries, the North Carolina Wildlife
Resources Commission, the South Carolina Department of Natural
Resources, and the Georgia Department of Natural Resources.
The state endangered species protection laws allow the state
wildlife agencies to identify, document, and protect any animal species
that is considered rare or in danger of extinction. In most of the
states (VA, NC, SC, GA), illegal activities include take, transport,
export, processing, selling, offering for sale, or shipping species,
and the penalty for doing so is a misdemeanor crime, usually resulting
in a fine of no more than $1,000 or imprisonment not to exceed a year
(Pellerito 2002, entire). There are no mechanisms for recovery,
consultation, or critical habitat designation other than in North
Carolina where conservation plans must be developed for all state
listed species (Pellerito 2002, Snape and George 2010, p.346). In
addition, nothing in the North Carolina Endangered Species Act ``shall
be construed to limit the rights of a landholder in the management of
his lands for agriculture, forestry, development, or any other lawful
purpose'' (NC GS 113-332).
State and Federal Stream Protections (Buffers & Permits)
A buffer is a strip of trees, plants, or grass along a stream or
wetland that naturally filters out dirt and pollution from rain water
runoff before it enters rivers, streams, wetlands, and marshes (SELC
2014, p.2). Several state laws require setbacks or buffers, and all
allow variances/waivers for those restrictions. Virginia's Chesapeake
Bay Preservation Act requires 100-foot buffers on all perennial streams
in designated ``Resource Protection Areas.'' North Carolina used to
have buffer requirements in specific watersheds (e.g., Tar-Pamlico,
Neuse, Catawba, Jordan Lake, and Goose Creek), however, the NC
Legislature enacted a Regulatory Reform effort, including ``Riparian
Buffer Reform'' that allowed for the amendment of the buffer rules to
allow/exempt development (see Session Law 2012-200, Section 8 and
Session Law 2015-246, Section 13.1, G.S. 143-214.23A (NCDEQ 2016,
entire)). North Carolina also has guidance for 200 foot riparian buffer
protections for streams draining to listed aquatic species habitats
(NCWRC 2002, p.11). In South Carolina, 30-45 ft buffer management zones
are required for stormwater management (SCDHEC 2016, entire). In
Georgia, all state waters are protected by a 25-foot vegetated buffer,
and trout waters have a 50-foot vegetated buffer requirement.
Section 401 of the federal Clean Water Act (CWA) requires that an
applicant for a federal license or permit provide a certification that
any discharges from the facility will not degrade water quality or
violate water-quality standards, including state-established water
quality standard requirements. Section 404 of the CWA establishes a
program to regulate the discharge of dredged and fill material into
waters of the United States. Permits to fill wetlands and fill,
culvert, bridge or re-align streams or water features are issued by the
U.S. Army Corps of Engineers under Nationwide, Regional General Permits
or Individual Permits.
<bullet> Nationwide Permits are for ``minor'' impacts to streams
and wetlands, and do not require an intense review process. These
impacts usually include stream impacts under 150 feet, and wetland fill
projects up to 0.50 acres. Mitigation is usually provided for the same
type of wetland or stream impacted, and is usually at a 2:1 ratio to
offset losses and make the ``no net loss'' closer to reality.
<bullet> Regional General Permits are for various specific types of
impacts that are common to a particular region; these permits will vary
based on location in a certain region/state.
<bullet> Individual permits are for the larger, higher impact and
more complex projects. These require a complex permit process with
multi-agency input and involvement. Impacts in these types of permits
are reviewed individually and the compensatory mitigation chosen may
vary depending on project and types of impacts.
State and Federal Water Quality Programs
Current State regulations regarding pollutants are designed to be
protective of aquatic organisms; however, freshwater mollusks may be
more susceptible to some pollutants than the test organisms commonly
used in bioassays. Additionally, water quality criteria may not
incorporate data available for freshwater mussels (March et al. 2007,
pp. 2,066-2,067). A multitude of bioassays conducted on 16 mussel
species (summarized by Augspurger et al. 2007, pp. 2025-2028) show that
freshwater mollusks are more sensitive than previously known to some
chemical pollutants, including chlorine, ammonia, copper, fungicides,
and herbicide surfactants. Another study found that nickel and chlorine
were toxic to a federally threatened mussel species at levels below the
current criteria (Gibson 2015, pp. 90-91). The study also found mussels
are sensitive to SDS (sodium dodecyl sulfate), a surfactant commonly
used in household detergents, for which water quality criteria do not
currently exist. Several studies have demonstrated that the criteria
for ammonia developed by EPA in 1999 were not protective of freshwater
mussels (Augspurger et al. 2003, p. 2,571; Newton et al. 2003, pp.
2,559-2,560; Mummert et al. 2003, pp. 2,548-2,552). However, in 2013
EPA revised its recommended criteria for ammonia. The new criteria are
more stringent and reflect new toxicity data on sensitive freshwater
mollusks (78 FR 52192, August 22, 2013; p. 2). All of the states in the
range of the Atlantic Pigtoe have not yet adopted the new ammonia
criteria. NPDES permits are valid for 5 years, so even after the new
criteria are
[[Page 64014]]
adopted, it could take several years before facilities must comply with
the new limits.
TMDL, or Total Maximum Daily Load, is a regulatory term from the
CWA describing a plan for restoring impaired waters that identify the
maximum amount of a pollutant that a body of water can receive while
still maintaining water quality standards. In North Carolina, despite
management actions that started in the mid-1990s, long term monitoring
and trend analyses have demonstrated that TMDL goals have not been met:
``Despite the fact that the targeted point and nonpoint pollution
sources have been able to meet their nutrient reductions, total
nitrogen and total phosphorous concentrations do not show a downward
trend and loads have not permanently fallen below 1991 baseline load
goals'' (as referenced (p.6) in SRI public comment letter on Yellow
Lance Listing to USFWS, 6/5/2017).
Under the CWA, states are required to review their water quality
standards and classifications every three years to make any
modifications necessary to protect the waters of the state (NCDEQ 2016,
entire). During this process, known as the Triennial Review, state
water quality staff review current EPA guidelines, scientific data, and
public comments and make recommendations for any changes of the water
quality standards. In North Carolina, the most recent triennial review
started in 2007 and was not completed until 2015 (NCDEQ 2016, entire).
The state of North Carolina has not addressed water quality standards
for several pollutants of concern for freshwater mussles, particularly
ammonia, despite the EPA's 2013 recommended ambient water quality
criteria for ammonia (as referenced (p.7) in SRI public comment letter
on Yellow Lance Listing to USFWS, 6/5/2017).
In summary, despite existing authorities such as the Clean Water
Act, pollutants continue to impair the water quality throughout the
current range of the Atlantic Pigtoe. State and Federal regulatory
mechanisms have helped reduce the negative effects of point source
discharges since the 1970s, yet these regulations are difficult to
implement and regulate. While new water quality criteria are being
developed that take into account more sensitive aquatic species, most
criteria currently do not. It is expected that several years will be
needed to implement new water quality criteria throughout the range.
Synergistic Effects
In addition to impacting the species individually, it is likely
that several of the above-summarized risk factors are acting
synergistically or additively on the species. The combined impact of
multiple stressors is likely more harmful than a single stressor acting
alone. For example, in the Meherrin River MU, there are four stream
reaches with 34 miles of impaired streams. They have low benthic-
macroinvertebrate scores, low dissolved oxygen, low pH, and contain
Escherichia coli (also known as E. coli). There are 16 non-major and 2
major discharges within this MU, along with 7 dams, and 676 road
crossings. Additionally, droughts were recorded for 4 consecutive years
(2007-2010) in this MU. The combination of all of these stressors on
the sensitive aquatic species in this habitat has probably impacted
Atlantic pigtoe, in that only two individuals have been recorded here
since 2005, and therefore are affecting the species more severely in
combination than any factor alone.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, 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. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
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 offering conservation tools
to meet both species and habitat needs in aquatic systems in North
Carolina. Land trusts are targeting key parcels for acquisition;
Federal and State biologists are surveying and monitoring species
occurrences; and, recently, there has been a concerted effort to ramp
up captive propagation and species population restoration via
augmentation, expansion, and reintroduction efforts. In 2014, NCWRC
staff and partners began a concerted effort to propagate the Atlantic
pigtoe in hopes of augmenting existing populations in the Tar and Neuse
River basins. In July 2015, 250 Atlantic pigtoes were stocked into
Sandy Creek, a tributary of the Tar River. Annual monitoring to
evaluate growth and survival is planned, and additional propagation and
stocking efforts will continue in upcoming years (Service 2021, p. 59).
Current Condition of Atlantic Pigtoe
The historical range of the Atlantic pigtoe included 12 populations
in Atlantic river basins from Virginia to Georgia. The surveys
conducted from 2005 to 2018 indicate that the currently occupied range
of the Atlantic pigtoe consists of 13 MUs within 7 populations in
Virginia and North Carolina, in the Tar, Neuse, James, Chowan, Roanoke,
Cape Fear, and Yadkin-Pee Dee River basins. The species is presumed
extirpated from the southern portion of its range, including the
Catawba, Edisto, Savannah, Ogeechee, and Altamaha River basins. The
Atlantic pigtoe currently (defined as the observation of at least one
specimen from 2005 to 2019) occupies 13 of the 81 historically occupied
MUs. At the population level, the overall current condition (=
resiliency) of the extant populations was estimated to be high for the
Tar Population; moderate for the Neuse Population; and low for the
James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee populations.
The Atlantic pigtoe currently has reduced adaptive potential due to
limited representation (compared with historical representation) in
seven river basins and three physiographic regions. The species retains
58 percent of its known river basin variability, but, as discussed
above, distribution has been reduced in the James, Chowan, Roanoke,
Cape Fear, and Yadkin-Pee Dee populations. In addition, although the
species continues to maintain physiographic representation in all three
regions it historically occupied, occupancy has decreased in each
region. A 67 percent estimated loss has occurred in the Mountain
region's watersheds, 48 percent loss in the Piedmont region's
watersheds, and 76 percent loss in the Coastal Plain region's
watersheds. Latitudinal variability is also reduced and is largely
limited to the central portions of its historical range, primarily in
the Tar and Neuse basins.
Redundancy was estimated as the number of historically occupied MUs
that remain currently occupied. The species has limited redundancy
within the James, Chowan, Roanoke, and Cape Fear River populations, and
only two
[[Page 64015]]
populations (Tar and Neuse) have multiple moderate or highly resilient
MUs. Overall, the species has decreased redundancy across its range due
to an estimated 60 percent reduction in occupancy compared to
historical levels.
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
help address uncertainty associated with the degree and extent of
potential future stressors and their impacts on the needs of the
species, the 3 Rs were applied using four plausible future scenarios.
We devised these scenarios by eliciting expert information on the
primary stressors anticipated to affect the species into the future:
Habitat loss and degradation due to urbanization and the effects of
climate change. The models that were used to forecast both urbanization
and climate change projected 50 years in the future. Synergistic
interactions are possible between the effects of climate change and the
effects of other potential threats, such as development. Increases in
temperature and changes in precipitation are likely to affect stream
dynamics, which will in turn affect the Atlantic pigtoe. However, it is
difficult to project how climate change will affect stream dynamics
because there can be both an increase in storm events as well as an
increase in low flow, or drought, conditions. Uncertainty about how
stream dynamics will respond to climate change, combined with
uncertainty about how changes in instream habitat conditions would
affect suitability for Atlantic pigtoe, make projecting possible
synergistic effects of climate change on the Atlantic pigtoe too
speculative. Below, we provide a brief summary of each plausible future
scenario (see Table 1); for more detailed information on these models
and their projections, please see the SSA report (Service 2021, chapter
3).
Under Scenario 1, the ``Status Quo'', factors that influence
current populations of Atlantic pigtoe were assumed to remain constant
over the 50 year time horizon. Under this scenario a loss of
resiliency, representation, and redundancy is expected. Under this
scenario, we predicted that no MUs would remain in high condition, 2
would be in moderate condition, 6 would be in low condition, and 20 MUs
would be likely extirpated. Redundancy would be reduced to two MUs in
the Tar Population. Representation would also be reduced, primarily
with reduced variability in the Mountains and Coastal Plain.
Under scenario 2, the ``Pessimistic'', factors that negatively
influence Atlantic pigtoe populations get worse. We predicted
substantial losses of resiliency, representation, and redundancy.
Redundancy would be reduced to 4 MUs in just two populations, and the
resiliency of those populations is expected to be low; 24 MUs were
predicted to be extirpated. All measures of representation are
predicted to decline under this scenario, leaving remaining Atlantic
pigtoe populations underrepresented in river basin and physiographic
variability.
Under scenario 3, the ``Optimistic'', factors that influence the
habitat conditions where Atlantic pigtoe populations exist were
predicted to slightly improve over the 50 year time horizon. We
predicted slightly higher levels of resiliency, representation, and
redundancy than were estimated under the Status Quo or Pessimistic
options. Two MUs would be in high condition, 5 in moderate condition,
and 5 would be in low condition, but 16 would remain extirpated.
Despite predictions of population persistence in the Chowan and Pee Dee
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 4, the ``Opportunistic'', landscape-level
factors that influence populations of Atlantic pigtoe were predicted to
get moderately worse. We predicted reduced levels of resiliency,
representation, and redundancy. None of the MUs would be in high
condition, 3 would be in moderate condition, 5 would be in low
condition, and 20 would be likely extirpated. Redundancy would be
reduced by losing 6 MUs compared to current condition. Under the
``Opportunistic'' scenario, representation is predicted to be reduced,
with only 6 (50 percent) of the former 12 occupied river basins
remaining occupied and with reduced variability in all three
physiographic regions. This expected reduction in both the number and
distribution of resilient populations is likely to make the species
vulnerable to catastrophic disturbance.
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Determination of the Atlantic Pigtoe's 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 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 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.
Atlantic Pigtoe's Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Atlantic pigtoe. Currently the Atlantic pigtoe is presumed
extirpated from 54 percent (15) of the historically occupied MUs; of
the remaining currently extant populations (13 MUs), 57 percent are
characterized as moderately or highly resilient, and 43 percent are
currently characterized by low resiliency. Many of the streams that
remain part of the current species' range are estimated to be in low or
very low condition with decreased occupancy of Atlantic pigtoe.
The Atlantic pigtoe faces threats from declines in water quality,
loss of stream flow, riparian and instream fragmentation, and
deterioration of instream habitats (Factor A). These threats, which are
expected to be exacerbated by continued urbanization (Factor A) and
effects of climate change (Factor E), will impact the future viability
of the Atlantic pigtoe. We did not find that the Atlantic pigtoe was
impacted by overutilization (Factor B), or by disease or predation
(Factor C). While there are regulatory mechanisms in place that may
benefit the Atlantic pigtoe, the existing regulatory mechanisms did not
reduce the impact of the stressors to the point that the species is not
at risk of extinction (Factor D).
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 Atlantic pigtoe habitat
conditions and population factors suggest reduced viability into the
future.
We considered whether the Atlantic pigtoe is currently in danger of
extinction and determined that endangered status is not appropriate.
Notwithstanding the number of populations that are no longer extant,
several moderately resilient populations remain over portions of the
species' historical range. The historical range of the Atlantic pigtoe
included streams and rivers in 12 Atlantic Slope drainages from the
James River Basin to the Altamaha River Basin, with the documented
historical distribution in 28 MUs within those basins. Currently, the
Atlantic pigtoe is presumed extirpated from 54 percent (15) of the
historically occupied MUs and 5 of the drainages. Of the remaining 13
occupied MUs, 3 (21 percent) are estimated to be highly resilient and 5
(36 percent) moderately resilient, with 5 (43 percent) having low
resiliency. Eight moderate to high resiliency MUs provide the ability
for the species to withstand stochastic disturbance events. Scaling up
from the MU to the population level, 1 of 12 former populations (the
Tar population) was estimated to have high resiliency, 1 population
(the Neuse population) was estimated to have moderate resiliency, 5
populations (the James, Chowan, Roanoke, Cape Fear, and Yadkin-Pee Dee
populations) had low estimated resiliency, and 5 of the former 12
populations are presumed extirpated; this means that 42 percent of the
species' historical range has been eliminated. Seventy-one percent of
streams that remain part of the current species' range are estimated to
be in low condition as defined in the SSA report. The species continues
to maintain physiographic representation in all 3 regions it
historically occupied, although occupancy has decreased in each region
by between 48 and 76 percent. However, while threats are currently
acting on the species and many of those threats are expected to
continue into the future (see below), we did not find that the species
is currently in danger of extinction throughout all of its range. With
eight moderately or highly resilient MUs in three physiographic
regions, the current condition of the species still provides
resiliency, redundancy, and representation such that it is not at risk
of extinction now.
However, after evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we predict that the population and habitat factors that we
used to determine the resiliency, representation, and redundancy for
the Atlantic pigtoe will continue to decline. Fifty years was
considered ``foreseeable'' in this case because it included projections
from both available models, and Atlantic pigtoes 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
Atlantic pigtoe habitat conditions and population factors projects
reduced viability into the future. Under all future scenarios,
resiliency is low in a majority of the remaining populations, and many
populations are likely extirpated so that redundancy and representation
are predicted to be significantly reduced. This expected reduction in
both the number and distribution of sufficiently resilient populations
is likely to make the species vulnerable to catastrophic disturbance.
Our analysis of the species' future conditions show that habitat
modification and destruction (Factor A) and other natural and manmade
factors (Factor E) will continue to impact the resiliency,
representation, and redundancy for the Atlantic pigtoe so that it is
likely to become in danger of extinction throughout all or a
significant portion of its range within the foreseeable future.
Atlantic Pigtoe's 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,
[[Page 64018]]
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 the Atlantic pigtoe, we
chose to address the status question first--we considered 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.
Specifically, 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, and
deterioration of instream habitats, including cumulative effects.
Overall, we found that threats are likely acting on individuals or MUs,
or even basins (populations), similarly across the species' range.
These threats are certain to occur, and in those basins with MUs that
are predominantly in low condition currently, the populations are
facing the same threats as those in moderate or high resiliency
condition.
Thus, there are no portions of the species' range where the species
has a different status from its rangewide status. Therefore, no portion
of the species' range provides a basis for determining that the species
is in danger of extinction in a significant portion of its range, and
we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its 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).
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Atlantic pigtoe meets the Act's
definition of a threatened species. Therefore, we are listing the
Atlantic pigtoe 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 requires that recovery actions be carried out for all 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 requires 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 for 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, 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 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 States of Virginia, North
Carolina, South Carolina, and Georgia will be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the Atlantic pigtoe. 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 Atlantic pigtoe. 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
[[Page 64019]]
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.
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.
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
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as 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 (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 [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [s]he may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising its authority under section 4(d), the Service has
developed a rule that is designed to address the Atlantic pigtoe's
specific threats and conservation needs. Although the statute does not
require us 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 Atlantic pigtoe. As discussed above under
Summary of Biological Status and Threats, we have concluded that the
Atlantic pigtoe 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 Atlantic pigtoe by encouraging management of the
landscape in ways that meet both land management considerations and the
conservation needs of the Atlantic pigtoe. The provisions of this rule
are one of many tools that the Service will use to promote the
conservation of the Atlantic pigtoe.
Provisions of the 4(d) Rule
This 4(d) rule will provide for the conservation of the Atlantic
pigtoe by prohibiting the following activities, except as otherwise
authorized or permitted: Importing or exporting; take; possession and
other acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce.
Import/export, possession, transportation, sale, and commerce are
of concern for many aquatic mollusks, primarily because they are sought
after for use as fishing bait and for human consumption. Regulating
these activities will help protect the Atlantic pigtoe from
exploitation.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can occur knowingly or otherwise, by
direct and indirect impacts, and intentionally or incidentally.
Protecting the Atlantic pigtoe from direct forms of take, such as
physical injury or killing or unauthorized handling or collecting of
the species, whether incidental or intentional, will help preserve and
recover the species. Therefore, we prohibit intentional take of
Atlantic pigtoe, 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 Atlantic pigtoe. 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, and dams and barriers. Other
habitat or hydrological alteration (such as ditching, draining,
diverting, dredging, snagging, impounding, channelization, or
modification of stream channels or
[[Page 64020]]
banks; discharge of fill material into stream channels; or diversion or
alteration of surface or ground water flow into or out of a stream)
will impact the habitat of the species. Regulating incidental take that
may result from these activities will help preserve the species'
remaining populations, slow their rate of decline, and decrease
synergistic, negative effects from other threats. Therefore, we
prohibit incidental take of the Atlantic pigtoe resulting from
activities that destroy, alter, or degrade the habitat in the manner
described above.
As discussed above, during both of the public comment periods, the
Service received numerous comments on its proposal to exempt from these
prohibitions incidental take resulting from silvicultural practices and
forest management activities (see Summary of Comments and
Recommendations, above). Forestry BMPs, when properly implemented,
protect water quality and help conserve aquatic species, including the
Atlantic pigtoe. Forest landowners who properly implement those BMPs
are helping conserve the pigtoe, 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.
To address any uncertainty regarding which silvicultural and forest
management BMPs will satisfy the 4(d) rule's exception for incidental
take resulting from silvicultural practices and forest management
activities, our regulations specify the conditions that must be met.
Further, we revised our 4(d) rule language to clarify that to qualify
for the exception, the BMPs must result in protection of the habitat
features that provide for the breeding, feeding, sheltering, and
dispersal needs of the Atlantic pigtoe, which will in turn 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
(VDOF 2011, p. 37). Ninety percent of the food in forested streams
comes from bordering vegetation (NCWRC 2002, p. 6; Service 2006, p. 6;
Stewart et al. 2000, p. 210; Service 2021, p. 11). Atlantic pigtoes
require cool, well-oxygenated water, and a clean stream bottom (Service
2021, p. 11). A lack of these features limits the number of pigtoes a
stream can support. Aquatic habitat and suitable water temperature can
be maintained even during logging operations when streamside vegetation
is left intact (VDOF 2011, p. 37). The exception for incidental take
associated with these activities seeks to ensure these characteristics
are maintained for the conservation of the Atlantic pigtoe.
Therefore, under this 4(d) rule, most prohibitions and provisions
of 50 CFR 17.21 for endangered wildlife apply to the Atlantic pigtoe,
except that incidental take resulting from the following actions is not
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. Streams
reconstructed in this way would offer suitable habitats for the
Atlantic pigtoe and contain stable channel features, such as pools,
glides, runs, and riffles, which could be used by the species for
spawning, rearing, growth, feeding, dispersal, and other normal
behaviors. Prior to restoration action, surveys to determine presence
of Atlantic pigtoe must be performed, and if located, mussels must be
relocated prior to project implementation.
(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 do 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 work, 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 that is 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 result in some
minimal level of take of the Atlantic pigtoe, but they 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
[[Page 64021]]
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. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, 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 Atlantic
pigtoe 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
Atlantic pigtoe. 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,
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 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 determination is further
informed by any generalized conservation strategy, criteria, or outline
that may have been
[[Page 64022]]
developed for the species to provide a substantive foundation for
identifying which features and specific areas are essential to the
conservation of the species and, as a result, the development of the
critical habitat designation. For example, an area currently occupied
by the species but that was not occupied at the time of listing may be
essential to the conservation of the species and may be included in the
critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and 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 the 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 those 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 used for listing or removing species from the
Lists of Endangered and Threatened Wildlife and Plants and designating
critical habitat. That rule became effective on September 26, 2019,
but, as stated in that rule, the revisions it sets forth apply to
classification and critical habitat rules for which a proposed rule was
published after September 26, 2019. We published our proposed critical
habitat designation for the Atlantic pigtoe on October 11, 2018 (83 FR
51570); therefore, the revisions set forth in the August 27, 2019,
final rule do not apply to this final designation of critical habitat
for the Atlantic pigtoe and this final rule follows the version of
Sec. 424.12 that was in effect prior to September 26, 2019.
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
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, 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. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
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, we 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
We derive the specific physical or biological features essential
for the conservation of the Atlantic pigtoe from studies of this
species' habitat, ecology, and life history. The primary habitat
elements that influence resiliency of the Atlantic pigtoe include water
quality, water quantity, substrate, and habitat connectivity. A full
description of the needs of individuals, populations, and the species
is available from the SSA report (Service 2021, p. 11). We have
determined that the following physical
[[Page 64023]]
or biological features are essential to the conservation of Atlantic
pigtoe:
(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 mussel
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(2) Adequate flows, or a hydrologic flow regime (which includes the
severity, frequency, duration, and seasonality of discharge over time),
necessary to maintain benthic habitats where the species is found and
to maintain connectivity of streams with the floodplain, allowing the
exchange of nutrients and sediment for maintenance of the mussel's and
fish hosts' habitat, food availability, spawning habitat for native
fishes, and the ability for newly transformed juveniles to settle and
become established in their habitats.
(3) Water and sediment 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) The presence and abundance of fish hosts necessary for
recruitment of the Atlantic pigtoe.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. Special management considerations or protection may be
required of the Federal action agency to eliminate, or to reduce to
negligible levels, the threats affecting the physical and biological
features of each unit. The features essential to the conservation of
the Atlantic pigtoe may require special management considerations or
protections to reduce the following threats: (1) Urbanization of the
landscape, including (but not limited to) land conversion for urban and
commercial use, infrastructure (roads, bridges, utilities), and urban
water uses (water supply reservoirs, wastewater treatment, etc.); (2)
nutrient pollution from agricultural activities that impact water
quantity and quality; (3) significant alteration of water quality; (4)
incompatible forest management or silviculture activities that remove
large areas of forested wetlands or riparian systems; (5) culvert and
pipe installation that creates barriers to movement; (6) impacts from
invasive species; (7) changes and shifts in seasonal precipitation
patterns as a result of climate change; and (8) other watershed and
floodplain disturbances that release sediments or nutrients into the
water.
Management activities that could ameliorate these threats include,
but are not limited to: Use of BMPs designed to reduce sedimentation,
erosion, and bank side destruction; protection of riparian corridors
and maintenance of sufficient canopy cover along banks; moderation of
surface and ground water withdrawals to maintain natural flow regimes;
increased use of stormwater management and reduction of stormwater
flows into the systems; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
The current distribution of the Atlantic pigtoe is much reduced
from its historical distribution. We anticipate that recovery will
require continued protection of existing populations and habitat, and
it will need to ensure that there are adequate numbers of mussels
occurring in stable populations and that these populations occur over a
wide geographic area. This strategy will help to ensure that
catastrophic events, such as the effects of hurricanes (e.g., flooding
that causes excessive sedimentation, nutrients, and debris to disrupt
stream ecology), cannot simultaneously affect all known populations.
Rangewide recovery considerations, such as maintaining existing genetic
diversity and striving for representation of all major portions of the
species' current range, were considered in formulating this critical
habitat designation.
Sources of data for the critical habitat designation include
multiple databases maintained by universities and State agencies for
Virginia and North Carolina, and numerous survey reports on streams
throughout the species' range (see SSA report). We have also reviewed
available information that pertains to the habitat requirements of this
species. Sources of information on habitat requirements include studies
conducted at occupied sites and published in peer-reviewed articles,
agency reports, and data collected during monitoring efforts (Service
2021, p. 11).
Areas Occupied at the Time of Listing
We identified stream channels that currently support populations of
the Atlantic pigtoe. We defined ``current'' as stream channels with
observations of the species from 2005 to the present, as described in
the SSA report and supported by the species' life history and habitat
stability over time (Service 2021, p. 10). Due to the breadth and
intensity of survey effort done for freshwater mussels throughout the
known range of the species, species experts found that it is reasonable
to assume that streams with no positive surveys since 2005 should not
be considered occupied for the purpose of our analysis. However, since
each particular area is not surveyed every year, and these cryptic
mussels have a 42 percent detection probability, only one negative
survey would not be sufficient to determine that the species is not
present. Therefore, it is reasonable to assume that if the species had
been seen within the past 15 years that it could be considered
currently occupied. Specific habitat areas were delineated based on
Natural Heritage Element Occurrences (EOs) following NatureServe's
occurrence delineation protocol for freshwater mussels (NatureServe
2018). These EOs provide habitat for Atlantic pigtoe subpopulations and
are large enough to be self-sustaining over time, despite fluctuations
in local conditions. The EOs contain stream reaches with interconnected
waters so that host fish containing Atlantic pigtoe glochidia can move
between areas, at least during certain flows or seasons.
We consider the following streams to be occupied by the species at
the time of listing: Craig Creek, Mill Creek, Sappony Creek, Nottoway
River Subbasin, Meherrin River, Dan River, Aarons Creek, Little Grassy
Creek, Upper/Middle Tar River Subbasin, Sandy/Swift Creek, Fishing
Creek
[[Page 64024]]
Subbasin, Lower Tar River, Upper Neuse River Subbasin, Middle Neuse
River Subbasin, New Hope Creek, Deep River Subbasin, and Little River
Subbasin (see Final Critical Habitat Designation, below). The critical
habitat designation does not include all streams known to have been
occupied by the species historically; instead, it includes only the
currently occupied streams within the historical range that have also
retained the physical or biological features that will allow for the
maintenance and expansion of existing populations.
Areas Outside the Geographic Area Occupied at the Time of Listing
We are not designating any areas outside the geographical area
currently occupied by the species because we did not find any
unoccupied areas that were essential for the conservation of the
species. The protection of eight moderately or highly resilient MUs
across the physiographic representation of the range will sufficiently
reduce the risk of extinction. Improving the resiliency of populations
in the currently occupied streams will increase viability to the point
that the protections of the Act are no longer necessary.
Critical Habitat Maps
When determining critical habitat boundaries, we used Geographic
Information System (GIS) hydrology data layers that can differ slightly
based on the scale of the map; therefore, users should use published
coordinates for upstream and downstream boundaries (see ADDRESSES). We
also made every effort to avoid including developed areas such as lands
covered by buildings, pavement, and other structures because such lands
lack physical or biological features necessary for the Atlantic pigtoe.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation under the Act with respect to critical habitat and the
requirement of no adverse modification unless the specific action will
affect the physical or biological features in the adjacent critical
habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Units are designated based on one or more of the physical or
biological features being present to support the Atlantic pigtoe's
life-history processes. All units contain all of the identified
physical or biological features and support multiple life-history
processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the discussion of individual units below. We will make the coordinates
on which each map is based available to the public on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R4-ES-2018-0046.
Final Critical Habitat Designation
We are designating 17 units as critical habitat for the Atlantic
pigtoe. The critical habitat areas described below constitute our best
assessment at this time of areas that meet the definition of critical
habitat. Those 17 units are: (1) Craig Creek, (2) Mill Creek, (3)
Sappony Creek, (4) Nottoway River Subbasin, (5) Meherrin River, (6) Dan
River, (7) Aarons Creek, (8) Little Grassy Creek, (9) Upper/Middle Tar
River Subbasin, (10) Sandy/Swift Creek, (11) Fishing Creek Subbasin,
(12) Lower Tar River, (13) Upper Neuse River Subbasin, (14) Middle
Neuse River Subbasin, (15) New Hope Creek, (16) Deep River Subbasin,
and (17) Little River. Table 2 below shows the occupied units.
Table 2--Critical Habitat Units for the Atlantic Pigtoe
------------------------------------------------------------------------
River miles
Critical habitat unit Riparian ownership (kilometers)
------------------------------------------------------------------------
1. JR1--Craig Creek............ Private; Federal....... 29 (46.7)
2. JR2--Mill Creek............. Private................ 1 (1.6)
3. CR1--Sappony Creek.......... Private................ 4 (6.6)
4. CR2--Nottoway River Subbasin Private; Federal....... 64 (103)
5. CR3--Meherrin River......... Private................ 5 (8)
6. RR1--Dan River.............. Private................ 14 (22.5)
7. RR2--Aarons Creek........... Private................ 12 (19.3)
8. RR3--Little Grassy Creek.... Private................ 3 (4.8)
9. TR1--Upper/Middle Tar River Private; Easements..... 91 (146.5)
Subbasin.
10. TR2--Sandy/Swift Creek..... Private; State; 50 (80.5)
Easements.
11. TR3--Fishing Creek Subbasin Private; State; 85 (136.8)
Easements.
12. TR4--Lower Tar River....... Private; State; 30 (48.3)
Easements.
13. NR1--Upper Neuse River Private; State; 60 (95)
Subbasin. Easements.
14. NR2--Middle Neuse River Private; State; County; 61 (98.2)
Subbasin. Easements.
15. CF1--New Hope Creek........ Private; Easements..... 4 (6.4)
16. CF2--Deep River Subbasin... Private................ 10 (16.1)
17. YR1- Little River.......... Private; Easements..... 40 (64.4)
---------------
Total...................... ....................... 563 (906)
------------------------------------------------------------------------
Note: Mileage may not sum due to rounding.
[[Page 64025]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Atlantic pigtoe, below.
All units are considered occupied.
James River Population
Unit 1: JR1--Craig Creek, Craig and Botetourt Counties, Virginia
Unit 1 consists of 29 river mi (46.7 river km) of Craig Creek near
VA Route 616 northeast of New Castle downstream to just below VA Route
817 crossing. The land adjacent to Craig Creek is primarily private,
although approximately 1 mi (1.6 km) of land along the river is
federally owned by George Washington and Jefferson National Forest (GWJ
NF), and 2.5 mi (4 km) consists of conservation easements. The unit
contains all of the physical or biological features that are essential
to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required to
address excess nutrients, sediment, and pollutants that enter the creek
and serve as indicators of other forms of pollution such as bacteria
and toxins, reducing water quality for the species. Sources of these
types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff. Five stream reaches, totaling approximately 21 river
miles, are impaired for aquatic life in the lower Craig Creek
watershed. Impairment is indicated by low benthic-macroinvertebrate
bioassessments, pH issues, high temperature, and fecal coliform. Given
the stormwater and nonpoint source pollution identified as contributing
to water quality issues in this unit, special management considerations
including riparian buffer restoration, reduced surface and groundwater
withdrawals, stormwater retrofits, eliminating direct stormwater
discharges, and implementing highest levels of wastewater treatment
practicable will benefit the species' habitat in this unit.
The GWJ NF surrounds the Craig Creek Subbasin; protections and
management of the GWJ NF will likely enable habitat conditions (water
quality, water quantity/flow, instream substrate, and connectivity) to
remain high into the future. Targeted species restoration in
conjunction with current associated-species restoration efforts in
Johns, Dicks, and Little Oregon Creeks within the Craig Creek Subbasin
will likely improve the Atlantic pigtoe's resiliency in these areas.
Maintenance of forested buffer conditions is essential to retaining
high-quality instream habitat in this unit.
Unit 2: JR2--Mill Creek, Bath County, Virginia
Unit 2 consists of a 1-mile (1.6-km) segment of Mill Creek at the
VA39 (Mountain Valley Road) crossing. The land surrounding the creek is
privately owned. The unit contains all of the physical or biological
features that are essential to support life-history processes of the
Atlantic pigtoe.
Special management considerations or protection may be required
within Unit 2 to address excess nutrients, sediment, and pollutants
that enter the creek and serve as indicators of other forms of
pollution such as bacteria and toxins. Sources of these types of
pollution are wastewater, agricultural runoff, and urban stormwater
runoff. Given the urban stormwater and nonpoint source pollution
identified as contributing to water quality issues in this unit,
special management considerations including riparian buffer
restoration, reduced surface and groundwater withdrawals, stormwater
retrofits, eliminating direct stormwater discharges, increasing open
space in the watershed, and implementing highest levels of wastewater
treatment practicable will benefit the species' habitat in this unit.
The GWJ NF surrounds most of the Mill Creek watershed; protections
and management of the GWJ NF will likely enable habitat conditions to
remain high into the future. Targeted species restoration in
conjunction with current associated-species restoration efforts in Mill
Creek will likely improve the Atlantic pigtoe's resiliency in these
areas. Maintenance of forested buffer conditions is essential to
retaining high-quality instream habitat in this unit.
Chowan River Population
Unit 3: CR1--Sappony Creek, Dinwiddie County, Virginia
Unit 3 consists of 4 river miles (6.6 river km) of Sappony Creek
beginning just upstream of the Seaboard Railroad crossing and ending
just downstream of the Shippings Road (SR709) crossing. The riparian
areas on either side of the river are privately owned. The unit
contains all of the physical or biological features that are essential
to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required to
address excess sediment and pollutants that enter the creek and serve
as indicators of other forms of pollution such as bacteria and toxins,
reducing water quality for the species. Sources of these types of
pollution are likely agricultural and silvicultural runoff. Special
management focused on agricultural and silviculture BMPs, maintenance
of forested buffers, and connection of protected riparian corridors
will benefit habitat for the species in this unit.
Unit 4: CR2--Nottoway River Subbasin, Nottoway, Lunenburg, Brunswick,
Dinwiddie, Greensville, and Sussex Counties, Virginia
Unit 4 consists of 64 river miles (103 river km) of the Nottoway
River, and a portion of Sturgeon Creek, beginning downstream of the
Nottoway River's confluence with Dickerson Creek and ending just
downstream of Little Mill Road, and includes Sturgeon Creek upstream of
Old Stage Road. Land bordering the river is primarily privately owned,
although some of the land is part of the Fort Pickett National Guard
Installation (see Exemptions, below), containing 14.2 mi (23 km) of
conservation parcels. The unit contains all of the physical or
biological features that are essential to support life-history
processes of the Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. In the past decade,
the Nottoway River suffered from several seasonal drought events, which
not only caused very low dissolved oxygen conditions but also decreased
food delivery because of minimal flows. In addition, these conditions
led to increased predation rates on potential host fishes that were
concentrated into low-flow refugia (e.g., pools). Urban stormwater and
nonpoint source pollution have been identified as contributing to water
quality issues in this unit; therefore, special management
considerations for riparian buffer restoration, reduced surface and
groundwater withdrawals, and stormwater retrofits will benefit the
habitat in this unit. Additional special management considerations or
protection may be required within this unit to address low water levels
as a result of water withdrawals and drought.
Unit 5: CR3--Meherrin River, Brunswick County, Virginia
Unit 5 consists of 5 river miles (8 river km) of the Meherrin
River, from approximately 1.5 miles below the confluence with
Saddletree Creek under VA Highway 46 (Christana Highway) to VA715 (Iron
Bridge Road). The land on either side of the river is privately owned.
The unit contains all of the physical or biological features that are
essential to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required
within
[[Page 64026]]
this unit to address a variety of threats. Like the Nottoway River, the
Meherrin River has been affected by seasonal droughts, resulting in low
flow conditions and low dissolved oxygen conditions. The rural nature
of the unit will benefit from following agricultural and silvicultural
BMPs. Additional special management considerations or protection such
as riparian buffer protection, reduced surface and groundwater
withdrawals, and water conservation programs may be required within
this unit to address low water levels as a result of water withdrawals
and drought.
Roanoke River Population
Unit 6: RR1--Dan River, Pittsylvania County, Virginia, and Rockingham
County, North Carolina
Unit 6 consists of 14 river miles (22.5 river km) of the Dan River
along the border of Virginia and North Carolina from just upstream of
NC Highway 700 near Eden, North Carolina, into Pittsylvania County,
Virginia, and downstream to the confluence with Williamson Creek in
Rockingham County, North Carolina. The land on either side of the river
is privately owned. The unit contains all of the physical or biological
features that are essential to support life-history processes of the
Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address threats. For example, a Duke Energy Coal
Ash spill occurred upstream of this unit in February 2014; subsequent
actions related to mitigating the effects of the spill will ultimately
benefit the habitat in this unit, potentially allowing species
restoration efforts.
Unit 7: RR2--Aarons Creek, Granville County, North Carolina, and
Mecklenburg and Halifax Counties, Virginia
Unit 7 consists of 12 river miles (19.3 river km) of Aarons Creek,
from NC96 in Granville County, North Carolina, downstream across the
North Carolina-Virginia border to just upstream of VA602 (White House
Road) along the Mecklenburg County-Halifax County line in Virginia.
Land on either side of the river is privately owned. The unit contains
all of the physical or biological features that are essential to
support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. There are two
impaired stream reaches totaling approximately 12 river miles (19.3
river km) in the Aarons Creek watershed. An ``impairment'' designation
by the State here is a result of low dissolved oxygen and low benthic-
macroinvertebrate assessment scores. Special management focused on
maintaining riparian buffers and following BMPs will be important for
the habitat in this unit.
Unit 8: RR3--Little Grassy Creek, Granville County, North Carolina
Unit 8 consists of 3 river miles (4.8 river km) of Little Grassy
Creek in Granville County, North Carolina, beginning at the Crawford
Currin Road crossing and ending at the confluence with Grassy Creek.
The riparian areas on either side of the river are privately owned. The
unit contains all of the physical or biological features that are
essential to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required to
address excess sediment and pollutants that enter the creek and serve
as indicators of other forms of pollution such as bacteria and toxins,
reducing water quality for the species. Sources of these types of
pollution are likely agricultural and silvicultural runoff. Given the
nonpoint source pollution identified as contributing to water quality
issues in this unit, special management considerations related to
riparian buffer protection and restoration and reduced surface and
groundwater withdrawals will benefit the species' habitat in this unit.
Tar River Population
Unit 9: TR1--Upper/Middle Tar River Subbasin, Granville, Vance,
Franklin, and Nash Counties, North Carolina
This unit consists of 91 river miles (146.5 river km) of the
mainstem of the upper and middle Tar River as well as several
tributaries (Bear Swamp Creek, Fox Creek, Crooked Creek, Cub Creek, and
Shelton Creek), all in North Carolina. The portion of Cub Creek starts
near Hobgood Road and continues to the confluence with the Tar River;
the Tar River portion starts just upstream of the NC158 bridge and goes
downstream to the NC 581 crossing; the Shelton Creek portion starts
upstream of NC158 and goes downstream to the confluence with the Tar
River; the Bear Swamp Creek portion begins upstream of Dyking Road and
goes downstream to the confluence with the Tar River (and includes an
unnamed tributary upstream of Beasley Road); the Fox Creek portion
begins downstream of NC 561 and goes to the confluence with the Tar
River; and the Crooked Creek portion begins upstream of NC98 crossing
and goes downstream to confluence with Tar River. Land bordering the
river and creeks is mostly privately owned (79 mi (119 km)), with some
areas in public ownership or easements (12 mi (17 km)). The unit
contains all of the physical or biological features that are essential
to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing too much growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen. As
a result, there are six ``impaired'' stream reaches (as defined on the
State's 303d list) totaling approximately 32 river miles in the unit.
Expansion or addition of new wastewater discharges are also a threat to
habitat in this unit. Special management focused on agricultural BMPs,
implementing highest levels of treatment of wastewater practicable,
maintenance of forested buffers, and connection of protected riparian
corridors will benefit habitat for the species in this unit.
Unit 10: TR2--Sandy/Swift Creek, Warren, Franklin, and Nash Counties,
North Carolina
This unit consists of a 50-mile (80.5-km) segment of Sandy/Swift
Creek beginning at Southerland Mill Road and continuing downstream to
NC301. Land bordering the river and creeks is mostly privately owned
(42 mi (80 km)), with some areas covered by protective easements (8 mi
(13 km)). The unit contains all of the physical or biological features
that are essential to support life-history processes of the Atlantic
pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen;
there is one ``impaired'' stream reach totaling approximately 5 river
miles (8 river km) in this unit. Given the nonpoint source pollution
identified as contributing to water quality issues in this unit,
special management considerations including riparian buffer protection
and restoration, connection of protected riparian corridors, reduced
surface and groundwater withdrawals,
[[Page 64027]]
and stormwater retrofits will benefit habitat for the species in this
unit.
Unit 11: TR3--Fishing Creek Subbasin, Warren, Halifax, Franklin, and
Nash Counties, North Carolina
This unit consists of 85 river miles (136.8 river km) in Fishing
Creek, Little Fishing Creek, Shocco Creek, and Maple Branch. The Shocco
Creek portion begins downstream of the NC58 bridge and continues to the
confluence with Fishing Creek; the entirety of Maple Branch is
included, down to the confluence with Fishing Creek; Fishing Creek
begins at Axtell Ridgeway Road (SR1112) downstream to I-95; and Little
Fishing Creek begins upstream of Briston Brown Road (SR1532) downstream
to the confluence with Fishing Creek. The land bordering the creeks
includes private parcels (56 miles (90 km)), protective easements (14
miles (23 km)), and State game lands (15 miles (24 km)). The unit
contains all of the physical or biological features that are essential
to support life-history processes of the Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen.
Given the nonpoint source pollution identified as contributing to water
quality issues in this unit, special management considerations
including riparian buffer restoration, reduced surface and groundwater
withdrawals, and stormwater retrofits will benefit habitat for the
species in this unit.
Unit 12: TR4--Lower Tar River, Edgecombe and Pitt Counties, North
Carolina
This unit consists of 30 river miles (48.3 river km) of the Lower
Tar River, lower Swift Creek, and Fishing Creek in Edgecombe County,
North Carolina, from NC97 near Leggett, North Carolina, to the
Edgecombe-Pitt County line near NC33. Land along the river is divided
between private parcels, protective easements, State game lands, and
State park land. The unit contains all of the physical or biological
features that are essential to support life-history processes of the
Atlantic pigtoe.
Special management considerations or protection may be required
within this unit to address a variety of threats. Excessive amounts of
nitrogen and phosphorus run off the land or are discharged into the
waters, causing excessive growth of microscopic or macroscopic
vegetation and leading to extremely low levels of dissolved oxygen.
Special management focused on agricultural BMPs, maintenance of
forested buffers, and connection of protected riparian corridors will
benefit habitat for the species in this unit.
Neuse River Population
Unit 13: NR1--Upper Neuse River Subbasin, Person, Durham, and Orange
Counties, North Carolina
This unit consists of 60 river miles (95 river km) in four reaches
including Flat River, Little River, Eno River, and the Upper Eno River.
The unit contains all of the physical or biological features that are
essential to support life-history processes of the Atlantic pigtoe.
The Flat River reach consists of 19 river miles (30.6 river km) in
the Flat River Subbasin in Person and Durham Counties, North Carolina,
including the South Flat River downstream of Dick Coleman Road, the
North Flat River near Parsonage Road, and Deep Creek near Helena-Moriah
Road downstream where each river converges into the Flat River
downstream of State Forest Road. Land along the Flat River subunit
includes mostly private parcels, with some easements (1 mi (1.7 km))
and State forest land (1.4 mi (2.3 km)).
The Little River Subbasin includes 18 river miles (29 river km) of
the North Fork and South Fork Little Rivers in Orange and Durham
Counties, North Carolina, bordered by mostly private land and 0.2 mi
(0.4 km) of conservation easements.
The Upper Eno River reach consists of 4 river miles (6.4 river km)
in Orange County, North Carolina, including the West Fork Eno River
upstream of Cedar Grove Road to the confluence with McGowan Creek. This
subunit is bordered by 3 miles (4.8 km) of private land and 1 mile (1.6
km) of conservation parcels.
The Eno River reach consists of 18 river miles (29 river km) in
Orange and Durham Counties, North Carolina, from below Eno Mountain
Road to NC15-501. Land bordering the river contains nearly all State
park land (17 mi (27.4 km)) and 0.3 mi (0.45 km) of conservation
parcels; the remaining land is privately owned.
Special management considerations or protection may be required
within this unit to address a variety of threats. Large quantities of
nutrients (especially nitrogen) contributed by fertilizers and animal
waste washed from lawns, urban developed areas, farm fields, and animal
operations are impacting aquatic ecosystems in this unit. More than 300
permitted point-source sites discharge wastewater into streams and
rivers in the basin. Development is also impacting areas along the
Upper Neuse River. Special management considerations in this unit
include using the highest available wastewater treatment technologies,
retrofitting stormwater systems, eliminating direct stormwater
discharges, increasing open space, maintaining connected riparian
corridors, and treating invasive species (like hydrilla).
Unit 14: NR2--Middle Neuse River Subbasin, Wake, Johnston, Wilson
Counties, North Carolina
This unit consists of 61 river miles (98.2 river km) in five
reaches including Swift Creek, Middle Creek, Upper Little River, Middle
Little River, and
[…truncated; see source link]Indexed from Federal Register on November 16, 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.