Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 257 

Public Notice in this proceeding are 

hereby incorporated by reference. 

6. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

25. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) and exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

26. The analysis of the Commission’s 

efforts to minimize the possible 

significant economic impact on small 

entities as described in the previous 

MF–II Order FRFAs are hereby 

incorporated by reference. As discussed 

above, the requirements and procedures 

established in the MF–II Challenge 

Process Handset Public Notice are 

intended to provide small entities with 

sufficient flexibility to choose a device 

that fits their needs and budgets thereby 

minimizing significant economic impact 

on small entities. 

7. Report to Congress 

27. The Commission will send a copy 

of the MF–II Challenge Process Handset 

Public Notice, including this SFRFA, in 

a report to Congress pursuant to the 

Congressional Review Act. In addition, 

the Commission will send a copy of the 

MF–II Challenge Process Handset Public 

Notice, including this SFRFA, to the 

Chief Counsel for Advocacy of the SBA. 

A copy of the MF–II Challenge Process 

Handset Public Notice, and SFRFA (or 

summaries thereof) will also be 

published in the Federal Register. 

IV. Contact Information 

28. For information on the one-time 

4G LTE coverage data collection, see 4G 

LTE Collection Instructions Public 

Notice, or consult the Commission’s 

MF–II 4G LTE Data Collection web page 

at www.fcc.gov/MF2-LTE-Collection. 

Please note that responses to the MF–II 

4G LTE data collection are due by 

January 4, 2018. Parties with questions 

about the collection should email 

ltedata@fcc.gov or contact Ken Lynch at 

(202) 418–7356 or Ben Freeman at (202) 

418–0628. 

29. For further information 

concerning the MF–II Challenge Process 

Comment Public Notice, contact 

Jonathan McCormack, Auctions and 

Spectrum Access Division, Wireless 

Telecommunications Bureau, at (202) 

418–0660. 

Federal Communications Commission. 

William W. Huber, 

Associate Chief, Auctions and Spectrum 

Access Division, WTB. 

[FR Doc. 2017–28421 Filed 1–2–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket Nos. FWS–R4–ES–2016–0029 and 

FWS–R4–ES–2016–0031; 4500030113] 

RIN 1018–BA78; RIN 1018–BA79 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for Black Warrior Waterdog and 

Designation of Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

endangered species status under the 

Endangered Species Act of 1973 (Act), 

as amended for the Black Warrior 

waterdog (Necturus alabamensis) and 

designate critical habitat. The effect of 

this regulation will be to add this 

species to the List of Endangered and 

Threatened Wildlife and designate 

critical habit for this species. In total, 

approximately 673 kilometers (420 

miles) of streams and rivers in Blount, 

Etowah, Jefferson, Lawrence, Marshall, 

Tuscaloosa, Walker, and Winston 

Counties, Alabama, fall within the 

boundaries of the critical habitat 

designation. 

DATES: This rule is effective February 2, 

2018. 

ADDRESSES: This final rule is available 

on the internet at http://

www.regulations.gov and http://

www.fws.gov/daphne/. Comments, 

materials, and documentation that we 

considered in this rulemaking will be 

available by appointment, during 

normal business hours, at: U.S. Fish and 

Wildlife Service, Alabama Ecological 

Services Field Office, 1208 Main Street, 

Daphne, AL 36526; by telephone 251– 

441–5184; or by facsimile 251–441– 

6222. 

The coordinates or plot points or both 

from which the maps are generated are 

included in the administrative record 

for the critical habitat designation and 

are available at http://

www.regulations.gov at Docket No. 

FWS–R4–ES–2016–0031, and at the 

Alabama Ecological Services Field 

Office (https://www.fws.gov/alabama) 

(see FOR FURTHER INFORMATION CONTACT). 

Any additional tools or supporting 

information that we developed for this 

final rule will also be available at the 

U.S. Fish and Wildlife Service website 

and Field Office set out above, and may 

also be included in the preamble and at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

William Pearson, Field Supervisor, U.S. 

Fish and Wildlife Service (see 

ADDRESSES above). Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

This document consists of: (1) A final 

rule to list the Black Warrior waterdog 

as endangered and (2) a final critical 

habitat designation for the Black 

Warrior waterdog. 

Executive Summary 

Why we need to publish a rule. Under 

the Endangered Species Act, a species 

may warrant protection through listing 

if it is endangered or threatened 

throughout all or a significant portion of 

its range. Listing a species as an 

endangered or threatened species can 

only be completed by issuing a rule. 

What this rule does. This rule will 

finalize the listing of the Black Warrior 

waterdog (Necturus alabamensis) as an 

endangered species and will finalize 

designation of critical habitat for the 

species under the Act. We are 

designating critical habitat for the 

species in four units, on public and 

private property totaling 673 kilometers 

(420 miles) of streams and rivers in 

Blount, Etowah, Jefferson, Lawrence, 

Marshall, Tuscaloosa, Walker, and 

Winston Counties, Alabama. This rule 

adds the Black Warrior waterdog to the 

List of Endangered and Threatened 

Wildlife in title 50 of the Code of 

Federal Regulations at 50 CFR 17.11(h) 

and adds critical habitat for this species 

to 50 CFR 17.95(d). 

The basis for our action. Under the 

Act, we may determine that a species is 

endangered or threatened based on any 

of the following 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 


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258 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that the Black Warrior 

waterdog is endangered by habitat loss 

and water quality degradation resulting 

from point source and non-point source 

pollution, urbanization, legacy effects of 

past forestry and other land use 

practices, surface coal mining, 

sedimentation, and impoundments. 

Under the Act, if we determine that 

any species is a threatened or 

endangered species we must, to the 

maximum extent prudent and 

determinable, designate critical habitat. 

Section 4(b)(2) of the Act states that the 

Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

Economic analysis. We prepared an 

economic analysis of the impacts of 

designating critical habitat. We 

published an announcement and 

solicited public comments on the draft 

economic analysis (81 FR 69475, 

October 6, 2016). The analysis found no 

significant economic impact of the 

designation of critical habitat. 

Peer review and public comment. We 

sought comments from independent 

specialists to ensure that our 

designation is based on scientifically 

sound data, assumptions, and analyses. 

We invited these peer reviewers to 

comment on our listing proposal. We 

also considered all comments and 

information received from the public 

during the comment period. 

Previous Federal Action 

Please refer to the proposed listing 

rule (81 FR 69500) and the proposed 

designation of critical habitat (81 FR 

69475) for the Black Warrior waterdog, 

both published October 6, 2016, for a 

detailed description of previous Federal 

actions concerning this species. 

Summary of Comments and 

Recommendations 

In the proposed listing and critical 

habitat rules published on October 6, 

2016, we requested that all interested 

parties submit written comments on the 

proposals by December 5, 2016. We also 

contacted appropriate Federal and State 

agencies, scientific experts and 

organizations, and other interested 

parties and invited them to comment on 

the proposal. Newspaper notices 

inviting general public comment were 

published in the following: AL.com; The 

Blount Countian; The Cullman Times; 

Daily Mountain Eagle; Decatur Daily; 

Moulton Advertiser; Northwest 

Alabamian; and The Times Record. We 

did not receive any requests for a public 

hearing. 

Peer Reviewer Comments 

In accordance with our peer review 

policy published in the Federal Register 

on July 1, 1994 (59 FR 34270), and our 

August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we solicited expert opinions from five 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the species and the 

geographic region in which the species 

occurs, the species’ habitat and 

biological needs, and conservation 

biology principles. We received 

responses from four of the peer 

reviewers. 

We reviewed all comments received 

from the peer reviewers for substantive 

issues and new information regarding 

critical habitat for the Black Warrior 

waterdog. The peer reviewers generally 

concurred with our methods and 

conclusions and provided additional 

information, clarifications, and 

suggestions to improve the final listing 

and critical habitat rule. Peer reviewer 

comments are summarized below and 

incorporated into the final rule as 

appropriate. 

(1) Comment: Two reviewers stated 

that one of the proposed units, Lye 

Branch (Tuscaloosa County), should be 

removed from the critical habitat 

designation since the specimens 

collected there were not Black Warrior 

waterdog (Necturus alabamensis) but 

another species of Necturus, the Gulf 

Coast waterdog (N. beyeri). 

Our Response: Based on the 

information provided, we have removed 

the Lye Branch unit from the 

designation in our critical habitat final 

rule. See Summary of Changes from the 

Proposed Rule, below, for more 

information. 

(2) Comment: Several peer reviewers 

recommended that additional units be 

included in the critical habitat 

designation. Three peer reviewers 

recommended adding Clear Creek 

(Winston County), and two of those peer 

reviewers also recommended the 

addition of Turkey Creek (Jefferson 

County) to the critical habitat 

designation. One peer reviewer 

recommended ‘‘other headwater 

streams, as not to overlook streams 

potentially important to the recovery.’’ 

All three peer reviewers noted that these 

other areas have suitable habitat and 

potentially support (or may in the future 

support) the species and would be 

crucial to the recovery of the Black 

Warrior waterdog. 

Our Response: The streams 

mentioned by the commenters are 

encompassed within the species’ 

historical range, the upper Black 

Warrior Basin. However, the Black 

Warrior waterdog has never been 

documented in these headwater streams 

this far up in the basin, although some 

lower segments of these streams may 

contain suitable habitat. Since they do 

not provide connectivity between 

occupied sites for genetic exchange, and 

therefore it is unknown if a population 

of the species could be successfully 

reestablished in an area that never had 

waterdogs, we determined that these 

sites were not essential to the 

conservation of the species (see 

response to comment 11 below). 

(3) Comment: One Federal agency and 

some public commenters expressed 

concern about the use of eDNA. The 

concern relates to the potential for 

‘‘false positives’’ and potential 

limitations of the use of eDNA as a 

surrogate for species occurrence, as well 

as whether the use of eDNA warrants 

consideration as the best science to 

support both listing and designating 

critical habitat. 

Our Response: Positive eDNA 

detections indicate that the DNA of the 

target species was present in the water 

sample (at the collection location), but 

it does not definitively reveal whether 

the species is still present. Studies on 

decay rate of eDNA indicate that it 

remains detectable for 2–3 weeks 

following release (Dejan et al. 2011), 

and, in using this guideline, we assume 

that the organismal source (Black 

Warrior waterdog) was present in the 

stream within the prior 2–3-week time 

window. Information that eDNA cannot 

provide is abundance of target species, 

whether the eDNA was derived from a 

living or dead individual(s), or if the 

population is viable. 

We recognize that detection of eDNA 

does not confirm species’ current 

presence with absolute certainty, 

because the target species may have 

died or moved from the sampled area. 

Additionally, a false positive, assuming 

presence of the targeted live organism at 

a site when it is absent, can occur if the 

eDNA was transported to the site via a 


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flood, or transferred between drainages 

by human collectors. However, because 

eDNA persists for only a few weeks, the 

frequency of such false positives is 

likely low. A false positive could also 

occur if the eDNA in a sample was from 

a closely related species and that eDNA 

was not distinguishable from Black 

Warrior waterdog eDNA. However, 

researchers have identified and applied 

eDNA markers unique to the Black 

Warrior waterdog that are distinct from 

markers in other Necturus species (e.g., 

de Souza et al. p. 5 and S2), thus 

avoiding species misidentification. 

Since the Black Warrior waterdog is 

difficult to capture, sampling for eDNA 

in the historical range of the species is 

an appropriate tool, bolstering 

confidence in assessing whether 

occupancy is likely. We used eDNA to 

narrow our focus on sites where 

additional sampling was more likely to 

capture live waterdogs, but we are not 

designating any streams as critical 

habitat, nor are we determining listing 

status, solely based on eDNA. That said, 

based on the comment, we have added 

more discussion about eDNA to the final 

rule. 

(4) Comment: A Federal agency was 

concerned that our economic analysis 

may have been an underestimation of 

the costs associated with consultations 

under the Act, as well as of the number 

of additional consultations as a result of 

the listing and critical habitat 

designation for the Black Warrior 

waterdog. 

Our Response: The economic analysis 

estimates that the incremental costs of 

critical habitat for the Black Warrior 

waterdog will be limited to 

administrative costs of consultation. 

This is due to the fact that all projects 

with a Federal nexus would already be 

subject to section 7 requirements 

regardless of whether critical habitat is 

designated due to the presence of the 

waterdog or other listed species with 

similar conservation needs. In addition, 

possible project modifications stemming 

from section 7 consultation are unlikely 

to be affected by the critical habitat 

designation because (a) the species is so 

closely associated with its aquatic 

habitat that there is unlikely to be a 

difference between measures needed to 

avoid jeopardizing the species in areas 

of occupied habitat and (b) in 

unoccupied areas, other listed aquatic 

species are impacted by similar factors 

as the waterdog. Specifically, there are 

26 listed species that occur within the 

Black Warrior River Basin, including 14 

aquatic species and 2 plant species that 

may be found within the critical habitat 

for the Black Warrior waterdog. Eight of 

these listed species have critical habitat 

that overlaps portions of the Black 

Warrior waterdog’s critical habitat, and 

the entire range of the threatened 

flattened musk turtle (Sternotherus 

depressus) overlaps with the range of 

the Black Warrior waterdog. Therefore, 

any activities with a Federal nexus will 

be subject to section 7 consultation 

requirements regardless of the Black 

Warrior waterdog critical habitat 

designation. 

Based on the historical consultation 

rate for species that co-occur or share 

habitat with the waterdog, the economic 

analysis estimates that fewer than 2 

formal consultations, 23 informal 

consultations, and 206 technical 

assistance efforts are likely to occur in 

a given year. 

(5) Comment: A Federal agency noted 

that some of its operations likely cooccur with proposed occupied and 

unoccupied critical habitat for the Black 

Warrior waterdog, at stream crossings 

used to access existing transmission line 

rights-of-way (ROWs) for maintenance 

purposes and construction of new 

transmission line ROWs. The Federal 

agency recommended that the Service 

specify suitable best management 

practices (BMPs) at stream crossings to 

minimize or prevent impacts to Black 

Warrior waterdog, so that actions at 

stream crossings either will not affect or 

are not likely to adversely affect this 

species. 

Our Response: For stream crossing 

access for ROW and new transmission 

line construction, the Service will 

provide BMPs during informal or formal 

consultation. The additional 

administrative costs of such ROW 

projects with a Federal nexus are 

described above. 

In accordance with policy, as 

published in the Federal Register on 

July 1, 1994 (59 FR 34272), we added 

‘‘transmission line ROW maintenance’’ 

to the actions unlikely to result in a 

violation of section 9 of the Act if 

carried out in accordance with existing 

regulations (see Available Conservation 

Measures). These actions are now stated 

in the rule as ‘‘Normal agricultural 

practices, silvicultural practices, and 

transmission line ROW maintenance, 

including herbicide and pesticide use, 

which are carried out in accordance 

with any existing regulations, permits, 

and label requirements, and best 

management practices.’’ 

State Comments 

(6) Comment: A State agency and 

some private organizations provided 

information on forestry compliance 

rates for BMPs and stream management 

zones (SMZs) and the positive impact 

on water quality. 

Our Response: We acknowledge the 

improvements and progress that many 

agencies and organizations have made 

over the years in relation to land use 

and certified BMPs, including a 98 

percent compliance rate in Alabama. We 

made changes to the listing and critical 

habitat designation to reflect these 

recent improvements in certified BMPs 

and forest management. We note that a 

majority of the adverse effects of forestry 

on waterdog habitat (e.g., sedimentation, 

streambank and channel modification) 

appear to be the legacy of activities 

conducted prior to the existence of the 

Act and various other laws designed to 

protect water quality and aquatic 

habitats. 

Public Comments 

(7) Comment: A commenter suggested 

that there is not sufficient information 

on the Black Warrior waterdog’s biology 

and ecological relationships upon 

which to make a listing determination. 

Our Response: We are required to 

make our listing determination based on 

the best scientific and commercial data 

available at the time of our rulemaking. 

We found that the Black Warrior 

waterdog warrants listing as an 

endangered species under the Act, 

based on the severity and immediacy of 

threats currently impacting the species. 

The overall range has been significantly 

reduced, and the remaining habitat and 

populations face threats from a variety 

of factors such as water quality 

degradation and small populations that 

are isolated from each other by 

unsuitable habitat created mainly by 

impoundments and pollution (Factors A 

and E) acting in combination to reduce 

the overall viability of the species. The 

risk of extinction is high because the 

number of populations has decreased, 

and the remaining populations are 

small, isolated, and have limited 

potential for recolonization (Factor E). 

(8) Comment: One commenter 

requested that the Black Warrior 

waterdog be listed as threatened instead 

of endangered, due to lack of 

information on the species’ biology and 

needs. 

Our Response: We considered the best 

scientific and commercial data available 

regarding the Black Warrior waterdog to 

evaluate its status under the Act and 

found that the species meets the 

definition of endangered due to the 

species’ contracted range, loss of habitat 

due to water quality degradation 

(sedimentation, toxins, and nutrients), 

fragmentation of the populations caused 

by impoundments, rangewide (not 

localized) threats, and ongoing threats 

that are presently acting on the species. 

A threatened species status is not 


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260 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

appropriate for this species due to a 

reduction of suitable habitat available 

for the species and the severity of the 

stressors that are imminent and 

occurring rangewide, and are expected 

to continue into the future, such that the 

species is in immediate danger of 

extinction. Additionally, only two of the 

waterdog locations support strong 

numbers of animals to the point they 

can be collected on a routine basis. At 

the remaining sites surveyed since 1990, 

only one or two waterdogs have been 

captured, which speaks to the current 

poor status of the species. 

(9) Comment: One commenter 

suggested the relevance of the flattened 

musk turtle as a surrogate species was 

not adequately explained. 

Our Response: We used the flattened 

musk turtle as a surrogate species 

because the Black Warrior waterdog and 

flattened musk turtle occupy the same 

range and habitat, and similar factors 

influence the habitat and conservation 

of each species. However, we did not 

rely solely on the flattened musk turtle 

to discern the habitat needs of the Black 

Warrior waterdog. We also relied on 

information about the Neuse River 

waterdog (Necturus lewisi), a closely 

related species in the same genus, 

because of its similar biology and life 

history, as well as recently published 

Black Warrior waterdog research. 

(10) Comment: One commenter noted 

that the lower 22.5 miles of Locust Fork 

and 44.5 miles of Mulberry Fork, both 

of which were proposed for designation 

as critical habitat, are navigable and 

used for barge traffic. The commenter 

requested that we consider whether 

those lower reaches exhibit the features 

of critical habitat for the Black Warrior 

waterdog. The commenter also 

requested that we identify measures to 

allow navigation maintenance activities 

‘‘without unreasonable burdens of cost 

or time’’ if Section 7 consultation or 

Section 10 permitting is required. 

Our Response: The Locust Fork 

critical habitat unit (Unit 2) is occupied 

by the Black Warrior waterdog and 

contains the following physical or 

biological features: Abundant rock 

crevices and rock slabs, leaf litter, and 

instream flow with moderate velocity 

and continuous daily discharge that 

allows for a longitudinal connectivity 

regime consisting of both surface runoff 

and ground water sources, exclusive of 

flushing flows caused by stormwater 

runoff, that are essential to the 

conservation of the Black Warrior 

waterdog. We have removed the 

Mulberry Fork unit (Unit 6 in the 

proposed rule), including its lower 44.5 

miles from the final critical habitat rule. 

The Black Warrior waterdog has been 

extirpated from Mulberry Fork, likely 

because Mulberry Fork has incurred 

more habitat degradation in comparison 

to Locust Fork, where the waterdog 

remains extant. In short, Locust Fork 

meets the definition of critical habitat 

under the Act for occupied habitat. 

Mulberry Fork, however, does not meet 

the definition under the Act for 

unoccupied habitat as it is not essential 

for conservation of the species and 

therefore, is not included as critical 

habitat in the final rule (see our 

response to comment 11 below). 

We would not expect direct effects to 

the species from navigation 

maintenance activities because areas 

with suitable physical and biological 

features in lower Locust Fork are close 

to the stream margins, away from the 

navigation channel. Navigation 

maintenance activities are unlikely to be 

affected by the critical habitat 

designation any more than they would 

be by the listing of the species because 

(a) the species is so closely associated 

with its aquatic habitat there is unlikely 

to be a difference between measures 

needed to avoid jeopardizing the species 

in areas of occupied habitat and (b) in 

unoccupied areas, other listed aquatic 

species are impacted by similar factors 

as the waterdog. Therefore, any 

activities with a Federal nexus will be 

subject to section 7 consultation 

requirements and, if necessary, section 

10 permitting requirements to inform 

the consultation, regardless of the Black 

Warrior waterdog critical habitat 

designation. 

(11) Comment: Several private 

organizations commented that our 

proposal to designate unoccupied areas 

as critical habitat had not been properly 

supported or explained in the proposed 

rule. 

Our Response: In order to designate 

unoccupied areas, we are required by 

section 3(5)(A) of the Act to determine 

that such areas are essential for the 

conservation of the species. We 

determine from the record whether any 

unoccupied areas are necessary to 

support the species’ recovery. The 

proposed rule outlined criteria for 

designation of critical habitat, which 

included a consideration of unoccupied 

areas that relied on the following 

criteria: (1) The importance of the 

stream to the overall status of the 

species and the contribution to the 

future recovery of the Black Warrior 

waterdog; (2) whether the area could be 

restored to contain the necessary habitat 

to support the Black Warrior waterdog; 

(3) whether the site provides 

connectivity between occupied sites for 

genetic exchange; and (4) whether a 

population of the species could 

potentially be reestablished in the area. 

We received public comments 

indicating the Service inappropriately 

evaluated these units for inclusion in 

critical habitat and did not explain why 

these units were essential for the 

conservation of the Black Warrior 

waterdog. In response to these 

comments, we reevaluated the Lake 

Tuscaloosa, Lost Creek, and Mulberry 

Fork units, considering the four criteria 

listed above and the conservation 

strategy for the Black Warrior waterdog, 

and determined that our conclusion in 

the proposed rule, that the three 

unoccupied units are essential for the 

conservation of the Black Warrior 

waterdog, was in error. 

Within the Lake Tuscaloosa unit, even 

though both of these sections are 

considered to be in the historical range 

of the species, both are isolated from 

each other and other populations of 

Black Warrior waterdog by two large 

impoundments (Lake Tuscaloosa and 

Holt Lake), and we had failed to 

consider this in the proposed rule. Upon 

further review, based on these 

impoundments, we now conclude 

habitat connectivity, one of the four 

criteria we considered in determining 

whether unoccupied areas are essential 

for the conservation of the species, is 

not met for the Lake Tuscaloosa unit. 

This lack of habitat connectivity with 

occupied sites in turn affects the unit’s 

satisfaction of another criterion, the 

importance of the stream to the overall 

status of the species and its contribution 

to future recovery. Although this unit 

still contains suitable habitat in the 

upper reaches and may play a role in 

the recovery of the species, we find that 

because it does not provide habitat 

connectivity between occupied sites to 

allow for genetic exchange it is not 

essential for the conservation of the 

species. 

Regarding the Lost Creek unoccupied 

unit, in a site assessment completed in 

March 2000, habitat in Lost Creek was 

determined to be poor to unsuitable 

water quality for the Black Warrior 

waterdog (Bailey 2000, pp. 7–8). This 

reduces the likelihood that a population 

of waterdogs could be established in 

this unit. More importantly, like the 

Lake Tuscaloosa unit, upon reevaluation 

we have determined that this unit is 

isolated from other occupied areas by an 

impoundment (Lake Tuscaloosa) and 

therefore lacks the connectivity to 

occupied stream reaches, which in the 

proposed rule was one of the criteria for 

determining that the area was essential 

for the conservation of the species. 

Similarly, the importance of the stream 

to the overall status of the species and 


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Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 261 

the contribution to the future recovery 

are also reduced due to this lack of 

habitat connectivity with occupied sites. 

While this unit still contains somewhat 

suitable habitat in the upper reaches 

and may play a role in the recovery of 

the species, we find that, because it does 

not provide habitat connectivity 

between occupied sites to allow for 

genetic exchange, it is not essential for 

the conservation of the species. 

Regarding the Mulberry Fork unit, as 

with the other two units we have, upon 

reevaluation, determined that 

impounded areas at the confluence of 

occupied tributary streams prohibit 

natural recolonization of this unit. The 

lower reach of Mulberry Fork is 

impounded by Bankhead Lake as far 

upstream as the mouth of Blackwater 

Creek (Bailey 2000, p. 9). In a site 

assessment completed in March 2000, 

habitat was described as a sluggish, 

muddy, and impounded area at the 

confluence with Sipsey Fork (Bailey 

2000, p. 10). While this unit does 

connect to the occupied Blackwater 

Creek unit, the large expanse of 

impounded water provides a barrier to 

the Black Warrior waterdogs expanding 

from the occupied unit into Mulberry 

Fork. Therefore, since the Mulberry 

Fork unit is isolated from other 

occupied areas by impounded areas of 

unsuitable habitat, it does not meet the 

connectivity criteria we considered in 

determining whether unoccupied areas 

are essential for the conservation of the 

species. The importance of the stream to 

the overall status of the species and the 

contribution to the future recovery are 

also reduced due to this lack of habitat 

connectivity with occupied sites. While 

this unit still contains somewhat 

suitable habitat in the upper reaches 

and may play a role in the recovery of 

the species, we find that it does not 

provide habitat connectivity between 

occupied sites to allow for genetic 

exchange and is not essential for the 

conservation of the species. 

Although the proposed units Lake 

Tuscaloosa, Lost Creek, and Mulberry 

Fork may have some degree of suitable 

habitat in the upper reaches and may be 

able to support the reintroduction of 

Black Warrior waterdogs, in the 

proposed rule we incorrectly 

determined that these areas were 

essential for the conservation of the 

species, as noted in the public 

comments. However, we correctly 

identified these units as providing 

habitat for reintroduction and future 

recovery activities. 

Therefore, we have determined that 

these four units are not essential for 

Black Warrior waterdog conservation 

and have not included these units in 

this final critical habitat designation. 

Although we no longer regard the 

unoccupied units (Lake Tuscaloosa, 

Lost Creek, or Mulberry Fork) as 

essential for the conservation of the 

species, we recognize that these areas 

may offer suitable habitat through 

restoration for the Black Warrior 

waterdog and may be useful for ex situ 

(offsite) conservation measures at a 

future time. 

Summary of Changes From the 

Proposed Rule 

We made the following significant 

changes to the rule based on peer review 

and public comments: We have 

removed four units from the final 

critical habitat designation—the Lye 

Branch, Lake Tuscaloosa, Lost Creek, 

and Mulberry Fork units. 

Based on further analysis after taking 

into consideration information provided 

during the comment period, it was 

determined that the Lye Branch stream 

segment (16 kilometers (10 miles)) (set 

forth in the proposed rule as Unit 1) was 

not historically occupied by the Black 

Warrior waterdog but by another species 

of waterdog. Based on this information, 

we determined that the unit is outside 

the known historical range of the Black 

Warrior waterdog. 

As described in our response to 

Comment 11, we have also removed the 

Lake Tuscaloosa unit, approximately 

108 rkm (67 rmi) of stream and river 

habitat (set forth in the proposed rule as 

Unit 2), the Lost Creek unit, 

approximately 93 rkm (58 rmi) of stream 

and river habitat (set forth in the 

proposed rule as Unit 4), and the 

Mulberry Fork unit, approximately 183 

rkm (114 rmi) of stream habitat (set forth 

in the proposed rule as Unit 6) from the 

final critical habitat designation because 

after further analysis we determined 

that those unoccupied areas were not 

essential for the conservation of the 

species and therefore did not fall within 

the definition of ‘‘critical habitat.’’ 

Summary of Biological Status 

The Black Warrior waterdog is a large, 

aquatic, nocturnal salamander that 

permanently retains a larval form and 

external gills throughout its life (Conant 

and Collins 1998, pp. 419–420). Found 

only in streams within the Black 

Warrior River Basin (Basin) in Alabama, 

the waterdog inhabits streams above the 

Fall Line, which is the contact zone 

between the Coastal Plain and the 

adjacent Piedmont physiographic 

province. Due to their highly permeable 

skin (Duellman and Trueb 1986, p. 197) 

and external gills, Black Warrior 

waterdogs are very sensitive to declines 

in water quality. 

Populations and Distribution 

Historically, the waterdog was known 

from 11 sites, 2 of which have been lost 

due to impoundments. Since 1990 

(current), the waterdog has been 

reported from 13 sites. These sites are in 

Blount (Blackburn Fork of the Little 

Warrior River), Marshall (Slab Creek, 

tributary to Locust Fork), Tuscaloosa 

(Yellow Creek, North River, Carroll 

Creek, Mulberry Fork), Walker (Lost 

Creek, Little Blackwater Creek), and 

Winston (Sipsey Fork, Blackwater 

Creek, Browns Creek, Brushy Creek, 

Capsey Creek) Counties, Alabama. Each 

of the 13 sites verified as a Black 

Warrior waterdog locality represents an 

individual population. 

Information concerning the current 

status of Black Warrior waterdog 

populations is limited. Only the Sipsey 

Fork and Brushy Creek populations, in 

Bankhead National Forest (BNF), appear 

to be maintaining numbers sufficient 

enough to be captured regularly. At 

other sites surveyed since 1990, only 

one or two waterdogs have been 

captured. In Sipsey Fork, 52 waterdogs 

were captured over a 3-year period, 

representing 173,160 trap hours, a rate 

of 1 waterdog per 3,330 trap hours 

(Durflinger-Moreno et al. 2006, pp. 70– 

71). A high proportion of sexually 

mature individuals were captured 

during this period, suggesting that 

recruitment and survival rates of the 

young age classes may be low in Sipsey 

Fork (Durflinger-Moreno et al. 2006, p. 

79). More recently, in surveys from 2012 

to 2016 (Godwin 2016, entire), seven 

waterdogs were captured in Sipsey Fork 

(408 trap-nights; catch per unit effort 

(CPUE) = 0.017 waterdogs per trapnight) and four were captured in Brushy 

Creek (140 trap-nights; CPUE = 0.029). 

The density of Black Warrior waterdogs 

in Sipsey Fork and Brushy Creek in 

BNF, relative to the lower densities 

detected at other sites in the species’ 

range, indicates the importance of this 

federally owned land for the species’ 

recovery and long-term survival. 

Because Black Warrior waterdogs are 

extremely difficult to detect in surveys, 

little is known regarding the species’ 

demography. However, we may infer 

some of the characteristics of a healthy 

population based on capture data from 

the most the robust extant population 

(Durflinger-Moreno 2006, entire) in the 

Sipsey Fork drainage. We would expect 

a healthy population at a minimum to 

have an adult sex ratio close to 1:1. 

Additionally, a stable population would 

be expected to have larval, juvenile, and 

adult age classes present annually, as a 

measure of stable recruitment and 

reproduction rates. Species’ abundance 


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data are lacking, but in 1938, during 

spring and fall, 135 specimens were 

collected at a single site in Mulberry 

Fork (Bart et al. 1997, p. 193). In 

comparison, 52 waterdogs were 

captured in Sipsey Fork over three years 

of sampling, in 1994, 1995 and 1997. 

Thus, based on these historic and 

current data, and given the Sipsey Fork 

population is likely depressed relative 

to historic populations, a recovered or 

conserved species could be estimated to 

have aggregations of at least 100 

individuals per year, represented by all 

age classes, and at multiple sites within 

each currently occupied sub-basin in 

the Black Warrior river. 

The captures of four waterdogs in 

Brushy Creek confirmed the accuracy of 

eDNA (environmental DNA, described 

below) previously detected in Brushy 

Creek water samples (de Souza et al. 

2016, p. 8). In 2013 and 2014, eDNA 

samples indicated Black Warrior 

waterdogs may still present in Rush 

Creek (Brushy Creek tributary) and 

Locust Fork, and newly found in Gurley 

Creek (Locust Fork tributary) and 

Yellow Creek (Big Yellow Creek/Black 

Warrior River tributary), although no 

waterdogs were captured at the time 

(Godwin 2014, pers. comm.). Similarly, 

in 2016, a Black Warrior waterdog was 

captured in Yellow Creek, validating the 

results of the eDNA survey in that 

stream. 

Detecting the presence of the Black 

Warrior waterdog is difficult, 

presumably because the species 

currently occurs only at low densities. 

The relationship between cumulative 

number of site visits and the cumulative 

number of sites containing waterdogs 

indicated that 200 additional surveys 

would be needed to discover a single 

new locality for the species (Guyer 

1997, p. 4). This relationship is further 

supported by the findings of de Souza 

(2016, p. 10), which indicated that, at an 

occupied site, 10 and 32 eDNA replicate 

water samples in the cool season and 

warm season, respectively, would be 

necessary for 95 percent detection 

probability of the waterdog. 

Only through the use of eDNA have 

we been able to determine that the 

waterdog is likely present at some 

historical locations. Researchers use 

eDNA as a surveillance tool to monitor 

for the genetic presence of an aquatic 

species. According to Strickler (2015, 

p. 1), ‘‘. . . when an aquatic animal 

can’t be seen or heard, it leaves traces 

of itself in the water by shedding skin, 

excreting waste, releasing gametes and 

decomposing. Investigators collect a 

water sample to detect the target 

species’ DNA and determine whether 

the species has recently been in the 

water body.’’ Positive eDNA detections 

indicate that the DNA of the targeted 

species was present in a water sample 

at the collection location but do not 

definitively tell us that the species is 

still present. Studies on decay rate of 

eDNA indicate it remains 2 to 3 weeks 

following release (Dejean et al. 2011), 

and, in using this guideline, we assume 

that the organismal source (Black 

Warrior waterdog) was present in the 

stream within the prior 2- to 3-week 

time window. Information that eDNA 

cannot provide is the abundance of the 

target species, whether the eDNA was 

derived from living or dead individuals, 

or if the population is viable. 

To prevent incorrectly identifying 

presence of Black Warrior waterdog 

based on eDNA when a similar species 

was present, de Souza et al. (2016 p. 5 

and S2) included DNA from similar 

Necturus species in analyses of the 

eDNA samples from the Black Warrior 

drainage. Part of the eDNA analyses 

included a primer search (primers are 

used to amplify DNA samples) that 

identified the primers that combined 

with Black Warrior waterdog DNA but 

not the DNA of non-target Necturus 

species (de Souza et al. 2016, S2). Nontarget species (those to avoid 

misidentifying as Black Warrior 

waterdog) in the analyses were N. 

lodingi, an undescribed species in Gulf 

drainages from Mobile Bay eastward 

(Shelton-Nix, p. 200), mudpuppy, dwarf 

waterdog, and Gulf Coast waterdog. 

Among the non-target species only the 

Gulf Coast waterdog could potentially 

co-occur naturally at sites along the Fall 

Line, since its range extends from the 

Coastal Plain to the Fall Line, whereas 

the Black Warrior waterdog range 

extends from the Piedmont to the Fall 

Line. It is also possible that mudpuppies 

could co-occur as a result of 

introductions by human transport from 

the Tennessee River drainage, which 

lies just north of Black Warrior drainage 

divide. In summary, given the analytical 

design applied to the eDNA, it is 

unlikely any samples were from 

Necturus species other than Black 

Warrior waterdog. 

Biology and Habitat 

Black Warrior waterdogs are 

associated with stream depths of 1 to 4 

meters (m) (3.3 to 13.1 feet (ft)), reduced 

sedimentation, and large leaf packs 

(leaves that fall into streams accumulate 

in packs usually behind branches, rocks, 

and other obstructions) supporting 

mayfly (Ephemeroptera spp.) and 

caddisfly (Trichoptera spp.) larvae. 

Except for habitat affinities, lifehistory data concerning the Black 

Warrior waterdog and other species of 

Necturus waterdogs are somewhat 

limited. As closely related species in the 

same genus, there are general 

characteristics that all Necturus species 

share, such as retention of the larval 

state (e.g., gills) as adults. As an 

example, although geographically 

separated (allopatric), the Black Warrior 

waterdog and the Neuse River waterdog 

both utilize high-gradient streams that 

are above the Fall Line and contain hard 

substrate, leafpacks, and 

macroinvertebrates. Because the two 

species likely evolved in similar 

habitats, an influential factor in 

determining life-history traits, we used 

the Neuse River waterdog as a surrogate 

to decipher some of the biological and 

ecological attributes that have not yet 

been determined for the Black Warrior 

waterdog. When such data were lacking 

for the Neuse River waterdog and Black 

Warrior waterdog, we relied on data 

from other Necturus species. 

Summary of Factors Affecting the 

Species 

The Act directs us to determine 

whether any species is an endangered 

species or a threatened species because 

of any one of five factors affecting its 

continued existence. In this section, we 

summarize the factors affecting the 

Black Warrior waterdog to assess the 

species’ viability. For additional detail, 

see the proposed listing rule (81 FR 

69500, October 6, 2016). 

Factor A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Water quality degradation is 

considered the primary reason for the 

extirpation of the Black Warrior 

waterdog over much of its historical 

range (Bailey 2000, pp. 19–20). Together 

with large impoundments (discussed 

below), it is the predominant threat to 

the continued existence of the species. 

Changes in water chemistry and flow 

patterns, resulting in a decrease in water 

quality and quantity, have detrimental 

effects on salamander ecology because 

they can render aquatic habitat 

unsuitable. Substrate modification is 

also a major concern for aquatic 

salamander species (Geismar 2005, p. 2; 

O’Donnell et al. 2006, p. 34). When 

interstitial spaces between substrates 

become compacted or filled with fine 

sediment, the amount of available 

foraging habitat and protective cover for 

salamanders is reduced, resulting in 

population declines. Most streams 

surveyed for the Black Warrior waterdog 

showed evidence of water quality 

degradation and were correspondingly 

biologically depauperate, lacking the 

full complement of species that would 


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be expected under natural, undisturbed 

habitat conditions (Bailey 1992, p. 2; 

Bailey 1995, p. 11; Durflinger-Moreno 

et al. 2006, p. 78). 

Discharges 

Contributors to water quality 

degradation in the Black Warrior Basin 

include point source (end of pipe) 

discharges and runoff from urban, 

mining, agricultural and, historically, 

forestry land uses (Deutsch et al. 1990, 

pp. 1–62; Upper Black Warrior 

Technical Task Force 1991, p. 1; O’Neil 

and Sheppard 2001, p. 2). These sources 

contribute pollution to the Basin via 

sediments, fertilizers, herbicides, 

pesticides, animal wastes, septic tank 

and gray water leakage, and oils and 

greases. Pollution has a direct effect on 

the survival of Black Warrior waterdogs, 

which, due to their highly permeable 

skin (Duellman and Trueb 1986, p. 197) 

and external gills, are very sensitive to 

declines in water quality. 

Urbanization 

Urbanization is a significant source of 

water quality degradation that can 

reduce the survival of aquatic 

organisms, including the Black warrior 

waterdog (Bowles et al. 2006, p. 119; 

Chippindale and Price 2005, pp. 196– 

197). Urban development can stress 

aquatic systems in a variety of ways, 

including increasing the frequency and 

magnitude of high flows in streams, 

increasing sedimentation, increasing 

contamination and toxicity, and 

changing stream morphology and water 

chemistry (Coles et al. 2012, pp. 1–3, 24, 

38, 50–51). Sources and risks of an acute 

or catastrophic contamination event, 

such as a leak from an underground 

storage tank or a hazardous materials 

spill on a highway, increase as 

urbanization increases. 

Several researchers have examined 

the negative impact of urbanization on 

stream salamander habitat, finding 

connections between salamander 

abundances and levels of development 

within a watershed. A study on the 

dusky salamander (Desmognathus 

fuscus) in Georgia (Orser and Shure 

1972, p. 1,150) found a decrease in 

stream salamander density with 

increasing urban development. A 

similar relationship between 

populations and urbanization was found 

for dusky salamander, two-lined 

salamander (Eurycea bislineata), 

southern two-lined salamander (E. 

cirrigera), and other species in North 

Carolina (Price et al. 2006, pp. 437–439; 

Price et al. 2012a, p. 198), Maryland, 

and Virginia (Grant et al. 2009, pp. 

1,372–1,375). Abundance of dusky and 

two-lined salamanders was most closely 

related to the amount and type of 

habitat within the entire watershed, as 

opposed to areas immediately adjacent 

to the stream (Willson and Dorcas 2003, 

pp. 768–770). 

Large population centers such as the 

cities of Birmingham, Tuscaloosa, and 

Jasper contribute substantial runoff to 

the Black Warrior Basin. The watershed 

occupied by these three cities contains 

more industrial and residential land 

area than other river basins in Alabama. 

Streams draining these areas have a 

history of serious water quality 

problems, as described above. Entire 

species of fish, mussels, and snails 

(Mettee et al. 1989, pp. 14–16; Hartfield 

1990, pp. 1–8), and populations of the 

flattened musk turtle (Service 1990, p. 

3), have been extirpated from large areas 

of the watershed primarily due to water 

quality degradation. 

Spills 

Associated with urbanization is the 

development of transportation systems, 

including roads, rails, airports, locks, 

and docks. Accidents, crashes, and 

derailments, resulting in spills, occur 

along these transportation corridors. 

Since 1990, more than 1,200 spills in 

the Basin have been reported to the U.S. 

Coast Guard National Response Center. 

One of several spills in the Basin took 

place in the Black Warrior River in 

2013. Approximately 164 gallons of 

crude oil were accidently pumped into 

the river. Emergency response teams 

cleaned the river, but a sheen of crude 

oil remained visible (Taylor 2013, 

entire). The threat from spills remains 

unchanged. 

Forestry 

Runoff from forestry operations and 

road construction has been a source of 

pollution in the Basin when certified 

BMPs were not followed to protect 

streamside management zones (Hartfield 

1990, pp. 4–6; Service 2000, p. 13). 

Forestry activities that were poorly or 

inadequately managed in the past can 

have long-lasting effects in the highgradient, highly erodible soils within 

the Basin, as seen by the legacy effects 

on Bankhead National Forest (Laschet 

2014, pers. obs.). However, modern 

forestry operations in Alabama have a 

certified BMP compliance of 98 percent 

and, therefore, mostly are not currently 

significant contributors to nonpoint 

source pollution. According to 

Alabama’s BMPs for forestry, SMZs 

should be a width of 35 ft (50 ft for 

sensitive areas) from the stream bank, 

providing a level of protection to 

instream habitat. Recently, the forest 

industry has begun to self-regulate 

SMZs through a third-party certification 

program in which mills will not accept 

timber from foresters who do not 

comply with SMZ requirements. 

Surface Coal Mining 

Surface coal mining represents 

another threat to the biological integrity 

of streams in the Basin and has 

undoubtedly affected the distribution of 

the Black Warrior waterdog (Bailey 

1995, p. 10). Strip mining for coal 

results in hydrologic disturbance (i.e., 

erosion, sedimentation, decline in 

groundwater levels, and general 

degradation of water quality) that affects 

many aquatic organisms (Service 2000, 

p. 12). Runoff from coal surface mining 

can generate pollution through 

acidification, increased mineralization, 

and sediment loading. Impacts are more 

often associated with past activities and 

abandoned mines, since presently 

operating mines are required to employ 

environmental safeguards established by 

the Federal Surface Mining Control and 

Reclamation Act of 1977 (30 U.S.C. 1201 

et seq.) and the Clean Water Act of 1972 

(33 U.S.C. 1251 et seq.) (Service 2000, 

p. 12). 

Coal mining in the Basin is currently 

a threat to the Black Warrior waterdog. 

Abandoned mines that have been 

inadequately reclaimed will continue to 

contribute pollutants to streams into the 

future. Recently, new coal mines, which 

have the potential to discharge 

additional pollutants into the waters in 

the range of the Black Warrior waterdog, 

have been proposed in Sipsey Fork and 

Mulberry Fork (Dillard 2011, pers. 

comm.; Alabama Surface Mining 

Commission 2012, pp. 1–4). 

Impoundments 

In addition to water quality 

degradation, creation of large 

impoundments has reduced suitable 

habitat within the Basin. Two historical 

populations of the Black Warrior 

waterdog, Black Warrior River near 

Tuscaloosa and Mulberry Fork at 

Cordova, have been lost due to 

impoundments. Impoundments behind 

Bankhead, Lewis, and Holt dams have 

flooded thousands of hectares (acres) of 

habitat previously considered suitable 

for the Black Warrior waterdog. The 

entire main channel of the Black 

Warrior River, over 272 kilometers (km) 

(170 miles (mi)), has been affected by 

impoundments (Hartfield 1990, p. 7), 

which do not have the shallow, flowing 

water associated with the waterdog. As 

a result, impoundments generally are 

unsuitable habitat for the species, 

although on one occasion two waterdogs 

were found in the upper end of Lewis 

Smith Reservoir (U.S. Forest Service 

record, in Godwin 2016, p. 5) where 


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Sipsey Fork enters and stream habitat 

transitions to lake habitat. The 

abundance of large predatory fish in 

impoundments further renders them 

unsuitable for the Black Warrior 

waterdog. 

Historically, Brushy Creek was a 

tributary of Sipsey Fork. Construction of 

Lewis Smith Reservoir separated the 

flowing connection between Brushy 

Creek and Sipsey Fork, essentially 

splitting the single BNF population in 

two isolated halves. Impoundments 

have been entrapments for waterdogs, 

isolating and inhibiting genetic 

exchange between populations in 

tributaries no longer connected by 

suitable flowing habitat. 

Summary of Factor A 

The Black Warrior waterdog has 

experienced substantial destruction, 

modification, and curtailment of its 

habitat and range. Specific species 

stressors include degradation of water 

quality and habitat from point source 

discharges and runoff, urbanization, 

legacy effects of poor forest 

management, surface coal mining, 

agriculture, and the construction of 

dams and their impoundments, together 

affecting hundreds of stream miles in 

the species’ range. The amount of 

habitat already lost amplifies the current 

and future threat from point and 

nonpoint source pollution, accidental 

spills, and violation of permitted 

discharges. Due to a reduction of 

suitable habitat available for the species 

and the severity and magnitude of this 

stressor, we consider the present or 

threatened destruction, modification, or 

curtailment of habitat and range a threat 

to the Black Warrior waterdog. While 

changes to land management and river 

operations have reduced impacts to the 

river system, ongoing activities continue 

to affect water quality. 

Factor B. Overutilization for 

Commercial, Recreational, Scientific, or 

Educational Purposes 

Based on best available data, there is 

no evidence that overutilization for 

commercial, recreational, scientific, or 

educational purposes is a threat to the 

Black Warrior waterdog. 

Factor C. Disease or Predation 

No diseases or incidences of 

predation have been reported for the 

Black Warrior waterdog. Also, there is 

no evidence of predation on Necturus 

species by fish in creeks and streams as 

reported by Bart and Holzenthal (1985, 

p. 406). Predation of adult mudpuppy 

(N. maculosus) by fish, crayfish, turtles 

and watersnakes has been observed 

rarely (Petranka 1998, p. 429), and is 

almost certainly an occurrence for Black 

Warrior waterdogs as well. A study of 

dwarf waterdog (N. punctatus) feeding 

behavior in the presence of predators 

indicated movement of the species to 

leaf pack habitat was driven by food 

availability rather than predator 

avoidance (Sollenberger 2013, entire). 

Given the very infrequent observations 

of predation on waterdogs and no 

reports of deleterious effects of 

predation on Necturus species, we do 

not consider predation to be an 

important factor influencing Black 

Warrior waterdog populations. 

Therefore, the best available data do not 

indicate that disease or predation is a 

threat to the Black Warrior waterdog in 

its preferred habitat outside of 

impounded areas, which harbor greater 

densities of larger fish predators and are 

more open than stream habitats, 

providing less cover for avoiding 

potential predators such as birds. 

Factor D. The Inadequacy of Existing 

Regulatory Mechanisms 

Under this factor, we examine 

whether existing regulatory mechanisms 

are inadequate to address the threats to 

the Black Warrior waterdog discussed 

under other factors. Section 4(b)(1)(A) of 

the Act requires the Service to take into 

account ‘‘those efforts, if any, being 

made by any State or foreign nation, or 

any political subdivision of a State or 

foreign nation, to protect such species.’’ 

In relation to Factor D under the Act, we 

interpret this language to require the 

Service to consider relevant Federal, 

State, and Tribal laws and regulations, 

and other such mechanisms that may 

minimize any of the threats we describe 

in threat analyses under the other four 

factors, or otherwise enhance 

conservation of the species. We give 

strongest weight to statutes and their 

implementing regulations and to 

management direction that stems from 

those laws and regulations. An example 

would be State governmental actions 

enforced under a State statute or 

constitution, or Federal action under 

statute. 

The Federal Surface Mining Control 

and Reclamation Act of 1977 (SMCRA), 

as amended December 22, 1987, 

requires all permitted mining operations 

to minimize disturbances and adverse 

impacts to fish, wildlife, and related 

environmental values, as well as 

implement enhancement measures 

where practicable. It further recognizes 

the importance of land and water 

resources restoration as a high priority 

in reclamation planning. However, the 

continued decline of many species, 

including the flattened musk turtle, 

fishes, and a number of mussels in the 

Black Warrior Basin, is often attributed 

to mining activities (Dodd et al. 1988, 

pp. 55–61; Mettee et al. 1989, pp. 12– 

13; Hartfield 1990, pp. 1–8; Bailey and 

Guyer 1998, pp. 77–83; Service 2000, 

pp. 12–13), even though SMCRA is in 

effect. 

The Alabama Department of 

Conservation and Natural Resources 

(ADCNR) recently added the Black 

Warrior waterdog to its list of non-game 

State-protected species (ADCNR 2012, 

pp. 1–4). Although this change will 

make it more difficult to obtain a 

collecting permit for the species, it does 

not offer any additional protection for 

habitat loss and degradation. The 

ADCNR also recognizes the Black 

Warrior waterdog as a Priority 2 species 

of high conservation concern in its State 

Wildlife Action Plan due to its rarity 

and restricted distribution (ADCNR 

2005, p. 298). However, this designation 

also does not offer any regulatory 

protections. 

Alabama Department of 

Environmental Management (ADEM) 

has established minimum water-quality 

standards for some occupied stream 

segments within the Black Warrior River 

drainage under the authority of the 

Clean Water Act of 1972. These 

standards are believed to be protective 

of aquatic species. In Locust Fork, 

Mulberry Fork, and other tributaries of 

the Black Warrior River occupied by the 

Black Warrior waterdog, a combined 

total of 275 km (171 mi) have been 

identified on the Alabama 303(d) List (a 

list of water bodies failing to meet their 

designated water-use classifications) as 

impaired by siltation and nutrients 

(ADEM 2010, pp. 1–3). The sources of 

these impairments have been identified 

as runoff from agricultural fields, 

abandoned surface mines, and 

industrial or municipal sites. Multiple 

stream reaches within the occupied 

habitat of the Black Warrior waterdog 

(Locust Fork, Mulberry Fork, Yellow 

Creek, and North River) fail to meet 

current regulatory standards. Even with 

current regulations, surviving waterdog 

populations are negatively affected by 

discharges, highway construction, 

mining (current and unreclaimed sites), 

and other activities with a Federal 

nexus (see discussion under Factor A, 

above). 

Factor E. Other Natural or Manmade 

Factors Affecting Its Continued 

Existence 

Demographic Factors 

The remaining Black Warrior 

waterdog populations are isolated from 

each other by unsuitable habitat created 

by impoundments, pollution, and other 


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factors as described under the Factor A 

discussion, above. Waterdog population 

densities are low even in the relatively 

best localities, and factors related to low 

population compound these threats. 

Species that are restricted in range 

and population size are more likely to 

suffer loss of genetic diversity due to 

genetic drift, potentially increasing their 

susceptibility to inbreeding depression, 

decreasing their ability to adapt to 

environmental changes, and reducing 

the fitness of individuals (Soule 1980, 

pp. 157–158; Hunter 2002, pp. 97–101; 

Allendorf and Luikart 2007, pp. 117– 

146). These low population densities 

combined with fragmentation of habitat 

renders populations extremely 

vulnerable to inbreeding depression 

(negative genetic effects of small 

populations, e.g., Wright et al. 2008, p. 

833) and may reduce mating to a 

frequency insufficient to sustain 

populations with newly recruited 

cohorts. Additionally, low population 

densities reduce species’ resiliency to 

catastrophic events such as floods, 

droughts, or chemical spills (Black 

Warrior River Watershed Management 

Plan n.d., p. 4.4), which may be 

compounded by the effects of climate 

change in the future (see discussion 

below). It is likely that some of the 

Black Warrior waterdog populations are 

below the effective population size 

required to maintain long-term genetic 

and population viability. The long-term 

viability of a species is based on the 

conservation of numerous populations 

throughout its geographic range (Harris 

1984, pp. 93–104), which provides a 

level of redundancy that reduces the 

risk of environmental change to the 

species as a whole (Shaffer and Stein 

2000, p. 310). The level of isolation and 

fragmentation of Black Warrior 

waterdog populations makes natural 

repopulation following localized 

extirpations virtually impossible 

without human intervention. 

Climate Change 

Climate change has the potential to 

increase vulnerability of the Black 

Warrior waterdog to random 

catastrophic events. Various emissions 

scenarios suggest that, by the end of the 

21st century, average global 

temperatures are expected to increase 

0.3 °C to 4.8 °C (0.5 °F to 8.6 °F), relative 

to the period 1986–2005 (IPCC 2013, p. 

15). By the end of 2100, it is virtually 

certain that there will be more frequent 

hot and fewer cold temperature 

extremes over most land areas on daily 

and seasonal timescales, and it is very 

likely that heat waves and extreme 

precipitation events will occur with a 

higher frequency and intensity (IPCC 

2013, pp. 15–16). In the southeastern 

United States the frequency, duration, 

and intensity of droughts are likely to 

increase (Thomas et al. 2009, p. 112). 

Droughts cause decreases in water flow 

and dissolved oxygen levels and 

increases in temperature in the river 

system. Studies of aquatic salamanders 

have reported decreased occupancy, 

loss of eggs, decreased egg-laying, and 

extirpation from sites during periods of 

drought (Camp et al. 2000, p. 166; Miller 

et al. 2007, pp. 82–83; Price et al. 2012b, 

pp. 317–319). 

Determination of Status 

Section 4 of the Act (16 U.S.C. 1533), 

and its implementing regulations at 50 

CFR part 424, set forth the procedures 

for determining whether a species is an 

endangered species or threatened 

species and should be included on the 

Federal Lists of Endangered and 

Threatened Wildlife and Plants (i.e., 

‘‘listed’’). Under section 4(a)(1) of the 

Act, we may list a species based on (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. Listing 

actions may be warranted based on any 

of the above threat factors, singly or in 

combination. 

Determination of Status Throughout All 

of the Species’ Range 

We have carefully assessed the best 

scientific and commercial data available 

regarding the past, present, and future 

threats to the Black Warrior waterdog. 

Two populations have been extirpated 

due to construction of dams that 

eliminated habitat on the Black Warrior 

River (Factor A). Current threats to the 

species include habitat destruction and 

degradation from point source 

pollution, runoff, and contaminant 

spills from industry, urbanization, 

surface coal mining, agriculture, and 

legacy effects of past forestry practices 

(Factor A). The small size and level of 

fragmentation of remaining Black 

Warrior waterdog populations leaves the 

species vulnerable to inbreeding 

depression and reduced genetic fitness, 

natural stochastic events, including 

storms and droughts (Factor E). Existing 

regulatory mechanisms have not led to 

a reduction or removal of threats 

impacting the Black Warrior waterdog 

(Factor D). These ongoing threats to the 

species are rangewide and expected to 

continue in the future. 

The Black Warrior waterdog is 

currently in danger of extinction 

throughout its entire range due to the 

immediacy and severity of threats 

currently impacting the species. The 

risk of extinction is high because there 

are few (13) extant populations and the 

majority of the populations are small 

and isolated. Several of these 

populations are likely below the 

effective size needed to remain viable 

without human intervention, owing to 

barriers to natural immigration. 

Therefore, on the basis of the best 

available scientific and commercial 

information, we list the Black Warrior 

waterdog as an endangered species. We 

find that a threatened species status is 

not appropriate for this species due to 

a reduction of suitable habitat available 

for the species and the severity of the 

stressors that are imminent and 

occurring rangewide, are ongoing, and 

are expected to continue into the future, 

such that the species is in immediate 

danger of extinction. Additionally, only 

two waterdog populations appear to be 

maintaining numbers sufficiently large 

to be captured regularly. At the 

remaining sites surveyed since 1990, 

only one or two waterdogs have been 

captured, which speaks to the current 

poor status of the species. Because of 

the contracted range and small 

population size of Black Warrior 

waterdog and because the threats are 

occurring rangewide, are ongoing, and 

are expected to continue into the future, 

we conclude that the species is in 

immediate danger of extinction. 

Determination of Status in a Significant 

Portion of the Range 

The Act defines an endangered 

species as any species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range’’ and a 

threatened species as any species ‘‘that 

is likely to become endangered within 

the foreseeable future throughout all or 

a significant portion of its range.’’ The 

phrase ‘‘significant portion of its range’’ 

is not defined by the Act, and a district 

court has held that aspects of the 

Service’s 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 37577 

(July 1, 2014)) (SPR Policy) were not 

valid. Center for Biological Diversity v. 

Jewel, No. 14–cv–02506–RM (D. Ariz. 

Mar. 29, 2017) (Pygmy-Owl Decision). 

Although the court’s order in that case 

has not yet gone into effect, if the court 

denies the pending motion for 

reconsideration, the SPR Policy would 

become vacated. Therefore, we have 

examined the plain language of the Act 


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and court decisions addressing the 

Service’s application of the SPR phrase 

in various listing decisions, and for 

purposes of this rulemaking we are 

applying the interpretation set out 

below for the phrase ‘‘significant 

portion of its range’’ and its context in 

determining whether or not a species is 

an endangered species or a threatened 

species. Because the interpretation we 

are applying is consistent with the SPR 

Policy, we summarize herein the bases 

for our interpretation, and also refer the 

public to the SPR Policy itself for a 

more-detailed explanation of our 

reasons for interpreting the phrase in 

this way. 

An important factor that influences 

the question of whether an SPR analysis 

is necessary here is what the 

consequence would be if the Service 

were to find that the Black Warrior 

waterdog is in danger of extinction or 

likely to become so throughout a 

significant portion of its range. Two 

district court decisions have evaluated 

whether the outcomes of the Service’s 

SPR determinations were reasonable. As 

described in the SPR Policy, both courts 

found that, once the Service determines 

that a ‘‘species’’—which can include a 

species, subspecies, or DPS under ESA 

Section 3(16)—meets the definition of 

‘‘endangered species’’ or ‘‘threatened 

species,’’ the species must be listed in 

its entirety and the Act’s protections 

applied consistently to all members of 

that species (subject to modification of 

protections through special rules under 

sections 4(d) and 10(j) of the Act). See 

Defenders of Wildlife v. Salazar, 729 F. 

Supp. 2d 1207, 1222 (D. Mont. 2010) 

(delisting of the Northern Rocky 

Mountains DPS of gray wolf; appeal 

dismissed as moot because of public law 

vacating the listing, 2012 U.S. App. 

LEXIS 26769 (9th Cir. Nov. 7, 2012)); 

WildEarth Guardians v. Salazar, No. 

09–00574–PHX–FJM, 2010 U.S. Dist. 

LEXIS 105253, 15–16 (D. Ariz. Sept. 30, 

2010) (Gunnison’s prairie dog). The 

issue has not been addressed by a 

Federal Court of Appeals. 

Consistent with the district court case 

law, we interpret that the consequence 

of finding that the Black Warrior 

waterdog is in danger of extinction or 

likely to become so throughout a 

significant portion of its range would be 

that the entire species would be listed 

as an endangered species or threatened 

species, respectively, and the Act’s 

protections would be applied to all 

individuals of the species wherever 

found. Thus, the ‘‘throughout all’’ 

phrase and the SPR phrase provide two 

independent bases for listing. We note 

that in the Act Congress placed the ‘‘all’’ 

language before the SPR phrase in the 

definitions of ‘‘endangered species’’ and 

‘‘threatened species.’’ This suggests that 

Congress intended that an analysis 

based on consideration of the entire 

range should receive primary focus. 

Thus, the first step we undertook, 

above, in our assessment of the status of 

the species was to determine its status 

throughout all of its range. Having 

determined that the species is in danger 

of extinction throughout all of its range, 

we now examine whether it is necessary 

to determine its status throughout a 

significant portion of its range. 

We conclude that in this situation we 

do not need to conduct an SPR analysis. 

This conclusion is consistent with the 

Act because the species is currently in 

danger of extinction throughout all of its 

range due either to high-magnitude 

threats across its range, or to threats that 

are so high in particular areas that they 

severely affect the species across its 

range. Therefore, the species is in 

danger of extinction throughout every 

portion of its range, and an analysis of 

whether the species is in danger of 

extinction or likely to become so 

throughout any significant portion of its 

range would be redundant and 

unnecessary. In addition, because the 

phrase ‘‘significant portion of its range’’ 

(SPR) could provide a second and 

independent basis for listing the Black 

Warrior waterdog in its entirety, an SPR 

analysis could would be either 

unnecessary or confusing. An SPR 

analysis could lead to a conclusion that, 

in addition to being an ‘‘endangered 

species’’ because of its status throughout 

all of its range, the Black Warrior 

waterdog is also an ‘‘endangered 

species’’ or ‘‘threatened species’’ 

because of its status throughout a 

significant portion of its range. The 

former clearly would be an unnecessary 

finding, because we have already 

determined that the species is an 

‘‘endangered species’’ because of its 

status throughout all of its range. The 

latter would create confusion because it 

could lead to a conclusion that the 

species warrants listing both as an 

endangered species (because of its status 

throughout all of its range) and as a 

threatened species (because of its status 

in the SPR). We accordingly conclude 

that we do not need to conduct further 

analysis of whether the Black Warrior 

waterdog is in danger of extinction or 

likely to become so in the foreseeable 

future throughout a significant portion 

of its range. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened under the Act include 

recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing actions 

results in public awareness and 

conservation by Federal, State, Tribal, 

and local agencies; private 

organizations; and individuals. The Act 

encourages cooperation with the States 

and other countries and calls for 

recovery actions to be carried out for 

listed species. The protection required 

by Federal agencies and the prohibitions 

against certain activities are discussed, 

in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, 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 also identifies recovery 

criteria for review of when a species 

may be ready for downlisting or 

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 

(http://www.fws.gov/endangered), or 

from our Alabama Ecological Services 

Field Office (see ADDRESSES). 

Implementation of recovery actions 

generally requires the participation of a 


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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 listing 

rule, funding for recovery actions will 

be available from a variety of sources, 

including Federal budgets, State 

programs, and cost share grants for nonFederal landowners, the academic 

community, and nongovernmental 

organizations. In addition, pursuant to 

section 6 of the Act, the State of 

Alabama would be eligible for Federal 

funds to implement management 

actions that promote the protection or 

recovery of the Black Warrior waterdog. 

Information on our grant programs that 

are available to aid species recovery can 

be found at: http://www.fws.gov/grants. 

Please let us know if you are 

interested in participating in recovery 

efforts for the Black Warrior waterdog. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(2) of the Act requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or destroy or 

adversely modify its critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency must enter 

into consultation with the Service. 

Federal agency actions within Black 

Warrior waterdog habitat that may 

require consultation as described in the 

preceding paragraph include 

management and any other landscapealtering activities on Federal lands 

administered by the Service, U.S. Forest 

Service, and Bureau of Land 

Management; issuance of section 404 

Clean Water Act permits by the U.S. 

Army Corps of Engineers; construction 

and maintenance of gas pipeline and 

power line rights-of-way by the Federal 

Energy Regulatory Commission; 

construction and maintenance of roads 

or highways by the Federal Highway 

Administration; land management 

practices supported by programs 

administered by the U.S. Department of 

Agriculture; Environmental Protection 

Agency pesticide registration; and 

projects funded through Federal loan 

programs which include, but are not 

limited to, roads and bridges, utilities, 

recreation sites, and other forms of 

development. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered wildlife. The prohibitions 

of section 9(a)(1) of the Act, codified at 

50 CFR 17.21, make it illegal for any 

person subject to the jurisdiction of the 

United States to take (which includes 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect; or 

to attempt any of these) endangered 

wildlife within the United States or on 

the high seas. In addition, it is unlawful 

to import; export; deliver, receive, carry, 

transport, or ship in interstate or foreign 

commerce in the course of commercial 

activity; or sell or offer for sale in 

interstate or foreign commerce any 

listed species. It is also illegal to 

possess, sell, deliver, carry, transport, or 

ship any such wildlife that has been 

taken illegally. Certain exceptions apply 

to employees of the Service, the 

National Marine Fisheries Service, other 

Federal land management agencies, and 

State conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.32. With regard to endangered 

wildlife, a permit may be issued for 

scientific purposes, to enhance the 

propagation or survival of the species, 

and for incidental take in connection 

with otherwise lawful activities. There 

are also certain statutory exemptions 

from the prohibitions, which are found 

in sections 9 and 10 of the Act. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a listing on proposed and 

ongoing activities within the range of 

species. Based on the best available 

information, the following actions are 

unlikely to result in a violation of 

section 9, if these activities are carried 

out in accordance with existing 

regulations and permit requirements; 

this list is not comprehensive: 

(1) Normal agricultural practices, 

silvicultural practices, and transmission 

line ROW maintenance, including 

herbicide and pesticide use, which are 

carried out in accordance with any 

existing regulations, permit, and label 

requirements, and certified best 

management practices; and 

(2) Normal residential development 

and landscape activities, which are 

carried out in accordance with any 

existing regulations, permit 

requirements, and best management 

practices. 

Based on the best available 

information, the following activities 

may potentially result in a violation of 

section 9 the Act; this list is not 

comprehensive: 

(1) Unauthorized introduction of 

nonnative species that compete with or 

prey upon the Black Warrior waterdog; 

(2) Unauthorized collecting, handling, 

possessing, selling, delivering, carrying, 

or transporting of the species, including 

import or export across State lines and 

international boundaries, except for 

properly documented antique 

specimens of this taxa, as defined by 

section 10(h)(1) of the Act; 

(3) Unauthorized destruction or 

alteration of Black Warrior waterdog 

habitat that results in destruction or loss 

of leaf packs and rocky substrate (rock 

crevices in the creek or stream); 

(4) Unauthorized discharge of 

chemicals or fill material into any 

waters in which the Black Warrior 

waterdog is known to occur; and 

(5) Actions, intentional or otherwise, 

that would result in the destruction of 

eggs or cause mortality or injury to 

hatchling, juvenile, or adult Black 

Warrior waterdogs. 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

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 


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(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 ‘‘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 nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) of the Act would apply, but even 

in the event of a destruction or adverse 

modification finding, the obligation of 

the Federal action agency and the 

landowner is not to restore or recover 

the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

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 

and 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 may 

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. 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 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 and 

commercial data available. They require 

our staff, to the extent consistent with 

the Act and with the use of the best 

scientific and commercial 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 developed 

during the listing process for the 

species. However, additional 

information sources may include 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) section 9 

of the Act’s prohibitions on taking any 

individual of the species, including 

taking caused by actions that affect 

habitat. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of this species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

Physical or Biological Features 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 


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designate as critical habitat, we consider 

the physical or biological features that 

are essential to the conservation of the 

species and which may require special 

management considerations or 

protection. For example, physical 

features might include gravel of a 

particular size required for spawning, 

alkali soil for seed germination, 

protective cover for migration, or 

susceptibility to flooding or fire that 

maintains necessary early-successional 

habitat characteristics. Biological 

features might include prey species, 

forage grasses, specific kinds or ages of 

trees for roosting or nesting, symbiotic 

fungi, or a particular level of nonnative 

species consistent with conservation 

needs of the listed species. The features 

may also be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

needed to support the life history of the 

species. In considering whether features 

are essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. 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. 

We derive the specific physical or 

biological features essential for Black 

Warrior waterdog from studies of this 

species’ habitat, ecology, and life history 

as described below. Additional 

information can be found in the 

proposed listing (81 FR 69500) and 

critical habitat rule (81 FR 69475), both 

published in the Federal Register on 

October 6, 2016. We have determined 

that the following physical or biological 

features are essential for Black Warrior 

waterdog. 

Space for Individual and Population 

Growth and for Normal Behavior 

The Black Warrior waterdog is found 

in the Black Warrior Basin above the 

Fall Line, characterized by rocky habitat 

with little sand. According to Mount 

(1981, p. 23), optimal habitat for the 

flattened musk turtle, a species listed as 

threatened under the Act (52 FR 22418; 

June 11, 1987) that has the same range 

as the waterdog, consists of a ‘‘segment 

of a free flowing large creek or small 

river having the following 

characteristics: (1) Drainage area 

between 50 and 500 square miles, (2) 

depth averaging two feet, with vegetated 

shallows alternating with pools at least 

three to four feet deep, (3) pools with 

detectable current, (4) abundance of 

submerged rocks with crevices, 

overlapping flat rocks, or accumulations 

of boulders, (5) abundant molluscan 

fauna, (6) low silt load and minimal silt 

deposits, (7) relatively low nutrient 

content and bacterial count, (8) 

moderate temperatures (maximum 

85 °F), and (9) minimal pollution by 

synthetic chemicals and toxic inorganic 

materials.’’ Since the Black Warrior 

waterdog and the flattened musk turtle 

occupy the same range and similar 

habitats, this description of optimal 

habitat is applicable to both species 

with the difference that the Black 

Warrior waterdog finds refuge under 

boulders or rocks and in crevices, lays 

its eggs on the underside of boulders, 

and uses deposited leaf packs (Bailey 

and Guyer 2004, pp. 36–37; DurflingerMoreno et al. 2006, pp. 69, 76, 78) on 

the streambed, likely for foraging on 

aquatic insect larvae and for sheltering. 

Necturus species in general have 

similar feeding habits, reproductive 

strategies, and physical characteristics. 

For example, although geographically 

separated (allopatric), the Black Warrior 

waterdog and the Neuse River waterdog 

both utilize high-gradient streams that 

are above the Fall Line and contain hard 

substrate, leafpacks, and 

macroinvertebrates. Because the two 

species likely evolved in similar 

habitats, an influential factor in 

determining life-history traits, we used 

the Neuse River waterdog as a surrogate 

to determine some of the biological and 

ecological attributes that have not yet 

been determined for the Black Warrior 

waterdog. When such data were lacking 

for the Neuse River waterdog and Black 

Warrior waterdog, we relied on data 

from other Necturus species. 

Furthermore, as discussed above, 

because the flattened musk turtle has an 

identical range to the Black Warrior 

waterdog, we relied on the turtle’s 

known habitat affinities to identify some 

of the habitat features important to the 

Black Warrior waterdog. 

The tributaries of the Neuse River 

have gradients similar to the tributaries 

of the Black Warrior River Basin. 

According to Ashton (1985, pp. 103– 

104), adult and juvenile Neuse River 

waterdogs use habitats characterized by 

moderate stream flow and relatively 

high dissolved oxygen concentrations, 

which is consistent with other Necturus 

species found in southern States. 

Studies of the Neuse River waterdog 

indicate that adult waterdogs use areas 

with large bedrock outcrops, large 

boulders with sandy-gravel bottoms, 

and stream banks with rock 

outcroppings. 

The Black Warrior waterdog needs 

geomorphically stable streams with 

substrate consisting of clay or bedrock 

with little sand, and containing 

abundant rock crevices, rock slabs, and 

leaf packs. The connectivity of these 

stream habitats is also essential in 

accommodating growth and other 

normal behaviors of the Black Warrior 

waterdog and in promoting gene flow 

within the species. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Food—Feeding habits of the Black 

Warrior waterdog are likely similar to 

the feeding habits of Neuse River 

waterdog, since both species are found 

in similar microhabitats. Both adult and 

juvenile Neuse River waterdogs appear 

to be opportunistic feeders. Braswell 

and Ashton (1985 pp. 22–27) found that 

larval waterdog diets consist primarily 

of a variety of aquatic arthropods (orders 

Ostracoda, Copepoda, Isopoda, and 

Amphipoda) with some insect larvae 

(orders Odonata, Ephemeroptera, 

Plecoptera, Trichoptera, Diptera, and 

Coleoptera). Black Warrior waterdogs 

have been found in close association 

with mayfly (Ephemeroptera) and 

caddisfly (Tricoptera) larvae (DurflingerMoreno et al. 2006). Adult Neuse River 

waterdog diet was more expansive than 

the juvenile diet and included aquatic 

arthropods, other aquatic and terrestrial 

invertebrates (earthworms, centipedes, 

beetles, grubs), and aquatic and 

terrestrial vertebrates (fish and 

salamanders) (Braswell and Ashton 

1985, pp. 13, 24–25). 

Since aquatic invertebrates are an 

important component of the Black 

Warrior waterdog’s diet, it is essential to 

also take into consideration specific 

habitat requirements of these prey. 

Merrit and Cummins (1996) described 

caddisfly and mayfly habitat as a wide 

variety of standing and flowing water 

habitats, with the greatest diversity 

being found in rocky-bottom streams 

with an abundance of oxygen. As a 

result, they further identify the food 

sources for these aquatic insects as a 

variety of detritus (leaf packs), algae, 

diatoms, and macrophytes. 

Water—As little is known about the 

specific water quality needs of the Black 

Warrior waterdog, we evaluated and 

based the water quality parameters on 

various factors, specifically Mount’s 

(1983) description of optimal habitat, 

Neuse River waterdog literature, prey 

species requirements (insect larvae), 


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Alabama Department of Environmental 

Management (ADEM) water quality 

standards, and water quality 

requirements for currently listed aquatic 

species found in the Basin, as follows: 

rush darter (Etheostoma phytophilum), 

Alabama moccasinshell (Medionidus 

acutissimus), dark pigtoe (Pleurobema 

furvum), orangenacre mucket (Lampsilis 

perovalis), ovate clubshell (Pleurobema 

perovatum), triangular kidneyshell 

(Ptychobranchus greenii), upland 

combshell (Epioblasma metastriata), 

and southern acornshell (Epioblasma 

othcaloogensis). 

Appropriate water quality parameters 

to support the Black Warrior waterdog’s 

primary prey base and other listed 

species in the Basin include: 

• Water that lacks harmful levels of 

pollutants, including inorganic 

contaminants such as copper, arsenic, 

mercury, and cadmium; organic 

contaminants such as human and 

animal waste products; endocrinedisrupting chemicals; pesticides; 

nitrogen, potassium, and phosphorus 

fertilizers; and petroleum distillates 

(ADEM 2014, pp. 12–15); 

• Water temperature not exceeding 

85 °F; 

• Dissolved oxygen 5.5 milligrams 

per liter (mg/L) or greater; 

• Turbidity of an average monthly 

reading of 15 nephelometric turbidity 

units (NTUs; units to measure sediment 

discharge) above background readings; 

• 115 mg/L of total suspended solids 

(measured as mg/L of sediment in 

water) or less; and 

• A specific conductance (ability of 

water to conduct an electrical current, 

based on dissolved solids in the water) 

of no greater than 225 microsiemens 

(mS) per centimeter at 80 °F (October 10, 

2012; 77 FR 61664). 

The Black Warrior waterdog has 

similar hydrologic requirements as 

those of the Neuse River waterdog, 

which are usually found in streams 

greater than 15 meters (m) (50 feet (ft)) 

wide and deeper than 100 centimeters 

(cm) (3 ft) and are not found in streams 

where water flow ceases under normal 

summer dry weather conditions 

(Braswell and Aston 1985, pp. 26–30). 

However, based on eDNA detections, 

the Black Warrior waterdog could be 

using streams as narrow as 4 m (13 ft) 

wide (Godwin 2014, pers. comm.). In 

regard to instream flow, the Black 

Warrior waterdog benefits from 

moderate stream velocity and 

continuous daily discharge that allows 

for longitudinal connectivity (the 

pathway along the entire length of a 

stream). 

The quality of the chemical and 

physical environment of the streams in 

the upper Black Warrior River Basin is 

essential to the survival of the Black 

Warrior waterdog. Optimal water 

quality lacks harmful levels of 

pollutants, including inorganic 

contaminants such as copper, arsenic, 

mercury, and cadmium; organic 

contaminants such as human and 

animal waste products; endocrinedisrupting chemicals; pesticides; 

nitrogen, potassium, and phosphorus 

fertilizers; and petroleum distillates 

(ADEM 2014, pp. 13–15). A decrease in 

water quality and instream flow would 

cause a decline in the major food 

species for the Black Warrior waterdog. 

Natural variations of instream flows 

maintain the stream bottom substrates, 

providing oxygen and other attributes to 

various invertebrate life stages. 

Sedimentation contributes to turbidity 

of the water and has been shown to 

reduce photosynthesis in aquatic plants, 

suffocate aquatic insects, smother 

aquatic eggs, clog gills, and fill in 

essential interstitial spaces used by 

aquatic organisms for spawning and 

foraging. Sedimentation has been shown 

to wear away and suffocate periphyton 

(organisms that live attached to objects 

underwater) and disrupt aquatic insect 

communities (Waters 1995, pp. 53–86; 

Knight and Welch 2004, pp. 132–135). 

Cover or Shelter 

Suitable substrates for the Black 

Warrior waterdog are dominated by clay 

or bedrock with little sand, and also 

contain abundant rock crevices and rock 

slabs for retreats (shelter) and areas for 

egg laying. Based on capture data, the 

Black Warrior waterdog utilizes leaf 

pack for shelter from predators and as 

foraging areas for prey species. 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

Little is known about the specific 

requirements of Black Warrior 

waterdog’s reproduction. Based on 

Neuse River waterdog research, 

breeding sites are large bedrock 

outcrops or large boulders with sand 

and gravel beneath them (Ashton 1985, 

p. 95). Data collected from the 

Cincinnati Zoo (unpublished) indicate 

that the Black Warrior waterdog has 

similar tendencies of depositing eggs 

under rock slabs or in rock crevices, and 

the female guarding the eggs. Juvenile 

Black Warrior waterdogs are often found 

in leaf packs in the stream. 

Sedimentation can be destructive to 

Black Warrior waterdogs and their 

habitat when it contains toxicants and is 

excessive. Bailey (2000, p. 2) reported 

that Black Warrior waterdogs are 

virtually in constant contact with the 

substrate and; therefore, also with any 

toxic chemicals present. He also 

reported that juveniles and adults are 

impacted by the exposure. Further, 

excessive sedimentation of the crevices 

and leaf packs removes foraging, 

feeding, breeding, and retreat areas for 

the Black Warrior waterdog (Laschet 

2014, pers. obs.). 

Habitats Protected From Disturbance or 

Representative of the Historical 

Geographical and Ecological 

Distributions of the Species 

Currently, there are no areas that are 

undisturbed or that are representative of 

the historical geographical and 

ecological distribution of the species 

that the Black Warrior waterdog 

typically inhabits. The Bankhead 

National Forest is an area that can reveal 

a glimpse of representative historical 

geographical and ecological features of 

the species’ habitat and is currently 

considered the stronghold of the 

species. Streams in this area typically 

are geomorphically stable with substrate 

consisting of clay or bedrock with little 

sand, and containing abundant rock 

crevices and rock slabs. These streams 

also contain cool, clean, flowing water 

having a dissolved oxygen level of 5.5 

mg/L or higher; moderate water 

velocity; aquatic macroinvertabrate prey 

items; leaf packs; and adequate water 

quality (ADEM 2010, pp. 1–3). 

In summary, based on the information 

described above, we have determined 

that the following physical or biological 

features are essential to the conservation 

of the Black Warrior waterdog. 

(1) Geomorphically stable, medium to 

large streams (typically 4 m (13 ft) wide 

or greater) with: 

(a) Substrate consisting of clay or 

bedrock with little sand, and containing 

abundant rock crevices, rock slabs, and 

leaf packs; 

(b) Moderate water velocity; and 

(c) Prey base of aquatic 

macroinvertebrates. 

(2) Water that lacks harmful levels of 

pollutants, including inorganic 

contaminants such as copper, arsenic, 

mercury, and cadmium; organic 

contaminants such as human and 

animal waste products; endocrinedisrupting chemicals; pesticides; 

nitrogen, potassium, and phosphorus 

fertilizers; and petroleum distillates. 

(3) Appropriate water quality 

parameters to support Black Warrior 

waterdog and primary prey base, 

including: 

(a) Water temperature not exceeding 

85 °F; 

(b) Dissolved oxygen 5.5 mg/L or 

greater; 


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(c) Turbidity of an average monthly 

reading of 15 NTUs above background 

readings; 

(d) 115 mg/L of total suspended solids 

or less; and 

(e) A specific conductance of no 

greater than 225 mS per centimeter at 

80 °F. 

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 that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. 

The features essential to the 

conservation of the Black Warrior 

waterdog may require special 

management considerations or 

protections to reduce the following 

threats: (1) Urbanization activities and 

inadequate stormwater management 

(such as stream channel modification 

for flood control or gravel extraction) 

that could cause an increase in bank 

erosion; (2) significant changes in the 

existing flow regime within the streams 

due to water diversion or withdrawal; 

(3) significant alteration of water 

quality; (4) significant alteration in 

quantity of groundwater, prevention of 

water percolating into the aquifer 

recharge zone, and alteration of spring 

discharge sites; (5) significant changes 

in stream bed material composition and 

quality due to changes in stream flow 

characteristics, construction projects, 

and maintenance activities; (6) off-road 

vehicle use; (7) sewer, gas, and water 

easements; (8) bridge construction; (9) 

culvert and pipe installation; and (10) 

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 certified BMPs 

designed to reduce sedimentation, 

erosion, and bank side destruction; 

select harvest of trees along banks, and 

leaving 50 percent canopy cover (of 

deciduous trees) 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; 

preservation of headwater springs and 

spring runs; regulation of off-road 

vehicle use; and reduction of other 

watershed and floodplain disturbances 

that release sediments, pollutants, or 

nutrients into the water. 

These management activities could 

protect the physical or biological 

features essential for the conservation of 

the species by eliminating, or reducing 

to negligible levels, the threats affecting 

the physical and biological features of 

each unit. The major threats to the Black 

Warrior waterdog habitat are 

sedimentation, water quality 

degradation (increased nutrients, 

turbidity, and toxins), and 

fragmentation from impoundments. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b) we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. We are designating 

critical habitat in areas within the 

geographical area occupied by the Black 

Warrior waterdog at the time of listing 

in 2017. We are not designating any 

areas outside the geographic area 

occupied by the species because we did 

not find any areas that were essential for 

the conservation of the species (see 

explanation under response to comment 

11, above). 

For the purpose of designating critical 

habitat for the Black Warrior waterdog, 

we defined the geographical area 

currently occupied by the species. We 

used information from surveys and 

reports prepared by the Alabama 

Department of Conservation and Natural 

Resources, Alabama Geological Survey, 

Alabama Natural Heritage Program, 

Auburn University, Alabama Power 

Company, U.S. Forest Service, Natural 

Resources Conservation Service, and 

Service to identify the specific locations 

occupied by the Black Warrior 

waterdog. Currently, occupied habitat 

for the species is isolated and limited to 

four units. Within these four units, the 

species is located within seven 

tributaries in the Black Warrior River 

Basin. Three of the tributaries are on 

Bankhead National Forest (Winston 

County) and include Sipsey Fork, 

Brushy Creek, and Rush Creek. The 

other four tributaries are Locust Fork; 

Gurley Creek, which feeds into Locust 

Fork (Blount and Jefferson Counties); 

Blackwater/Browns Creek in Winston 

County; and Yellow Creek in Tuscaloosa 

County (Godwin 2014, entire). We have 

determined that these four units (which 

include all seven tributaries)—Sipsey 

Fork, Locust Fork, Blackwater Creek, 

and Yellow Creek—meet the criteria for 

designation as critical habitat. As 

discussed below, some of these units 

contain all of the identified elements of 

physical or biological features and 

support multiple life-history processes. 

Some units contain only some elements 

of the physical or biological features 

necessary to support the Black Warrior 

waterdog’s particular use of that habitat. 

Mapping Black Warrior Waterdog 

Critical Habitat 

In identifying critical habitat units for 

the Black Warrior waterdog, we 

proceeded through a multi-step process. 

We obtained and reviewed historical 

records for the Black Warrior waterdog’s 

distribution from Bankhead National 

Forest and Alabama Natural Heritage 

Program, as well as both published and 

unpublished documentation from our 

files. Once the historical range was 

determined, we looked at whether the 

physical and biological features were 

present at these historical sites. Then, 

we reviewed surveys conducted over 

the last 8 years, including surveys 

currently being undertaken. We 

conducted species present-or-absent 

surveys of known and historical sites 

and sampled and observed the habitat. 

Since the Black Warrior waterdog is 

difficult to detect and capture, we 

contracted with Alabama Natural 

Heritage Program and Auburn 

University to conduct sampling surveys 

including the use of eDNA. With the 

survey results, we confirmed the Black 

Warrior waterdog’s distribution in the 

Black Warrior River Basin. We 

determined occupied areas with data 

collected from surveys conducted over 

the last 8 years to present. We 

considered areas that do not have recent 

capture or sighting data to be 

unoccupied by the species. 

Our approach to delineating critical 

habitat units was applied in the 

following manner: 

(1) We overlaid Black Warrior 

waterdog locations into a GIS database. 

This provided us with the ability to 

examine slope, elevation, geologic type, 

hydrologic factors, vegetation 

community, and topographic features. 

These data points verified the 

previously recorded elevation ranges for 

Black Warrior waterdog. 

(2) In addition to the GIS layers listed 

above, we then excluded impoundments 

and dams as barriers for the species, as 

described in Physical or Biological 

Features, above. 

(3) We then drew critical habitat 

boundaries that captured the locations 

as discussed above. The final critical 

habitat designation was then mapped 

using Projected Coordinate System, 


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NAD 1983 UTM Zone 16N with a 

Projection of Transverse Mercator. 

When determining critical habitat 

boundaries, we 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 Black Warrior 

waterdog. 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 would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

We are designating as critical habitat 

streams that we have determined are 

occupied at the time of listing and 

contain physical or biological features to 

support life-history processes essential 

to the conservation of the species. 

Four units were designated based on 

one or more of the elements of physical 

or biological features being present to 

support the Black Warrior waterdog’s 

life processes. Some units contained all 

of the identified elements of physical or 

biological features and supported 

multiple life processes. Some units 

contained only some elements of the 

physical or biological features necessary 

to support the Black Warrior waterdog’s 

particular use of that habitat. 

The critical habitat designation is 

defined by the maps, as modified by any 

accompanying regulatory text, presented 

at the end of this document in the rule 

portion. We include more detailed 

information on the boundaries of the 

critical habitat designation in the 

preamble of this document. We will 

make the coordinates or plot points or 

both on which each map is based 

available to the public on http://

www.regulations.gov at Docket No. 

FWS–R4–ES–2016–0031, on the 

Service’s website at http://www.fws.gov/ 

daphne/, and at the field office 

responsible for the designation (see FOR

FURTHER INFORMATION CONTACT, above). 

Final Critical Habitat Designation 

We are designating approximately 673 

river kilometers (420 river miles) in five 

units as critical habitat for the Black 

Warrior waterdog. The critical habitat 

areas we describe below constitute our 

current best assessment of areas that 

meet the definition of critical habitat for 

the Black Warrior waterdog. 

All of the areas designated as critical 

habitat for the Black Warrior waterdog 

include stream and river channels 

within the normal high water line. 

Table 1 shows the occupancy status of 

each unit and units that overlap with 

existing critical habitat units for other 

federally listed species. 

TABLE 1—BLACK WARRIOR WATERDOG CRITICAL HABITAT UNITS AND EXISTING OVERLAPPING CRITICAL HABITAT

DESIGNATION FOR FEDERALLY LISTED SPECIES

Unit Location 

Private 

ownership 

rkm/rmi 

Federal 

ownership 

rkm/rmi 

Existing 

critical 

habitat 

rkm/rmi 

Total 

length 

rkm/rmi 

1 ...................... Yellow Creek ....................................................................... 30/19 ........................ ........................ 30/19 

2 ...................... Locust Fork ......................................................................... 391/243 ........................ * 101/63 391/243 

3 ...................... Blackwater Creek ................................................................ 128/80 ........................ ........................ 128/80 

4 ...................... Sipsey Fork ......................................................................... 11/7 113/71 ** 103/64 124/78 

Totals ....... ............................................................................................. 560/349 113/71 204/127 673/420 

* Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), ovate 

clubshell (Pleurobema perovatum), upland combshell (Epioblasma metastriata), triangular kidneyshell (Ptychobranchus greenii). 

** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma othcaloogensis), triangular 

kidneyshell. 

We present brief descriptions of all 

the units, and reasons why they meet 

the definition of critical habitat for the 

Black Warrior waterdog, below. All 

units are within private ownership, 

except Unit 4, which also includes 

Federal ownership. 

Unit 1: Yellow Creek, Tuscaloosa 

County, Alabama 

Unit 1 includes 30 rkm (19 rmi) of 

stream and river habitat. The unit 

consists of the headwaters of Yellow 

Creek to Holt Lake. This area is within 

the geographical area occupied at the 

time of listing (i.e., currently occupied). 

Godwin (2016, pers. comm.) reported a 

capture of a Black Warrior waterdog in 

this area. This area contains the 

following physical or biological features 

that are essential for the Black Warrior 

waterdog: Abundant rock crevices and 

rock slabs, leaf litter, and instream flow 

with moderate velocity and continuous 

daily discharge that allows for a 

longitudinal connectivity regime 

inclusive of both surface runoff and 

ground water sources and exclusive of 

flushing flows caused by stormwater 

runoff. 

Threats to the physical and biological 

features in Unit 1 that may require 

special management considerations or 

protection include: 

• Agriculture, silviculture, and 

urbanization activities that could result 

in increased bank erosion; 

• Significant changes in the existing 

flow regime due to inadequate 

stormwater management, water 

diversion, or water withdrawal; 

• Significant alteration of water 

quality; and 

• Significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge and road construction and 

maintenance; culvert and pipe 

installation; and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Unit 2: Locust Fork, Blount, Etowah, 

Jefferson, and Marshall Counties, 

Alabama 

Unit 2 includes 391 rkm (243 rmi) of 

stream and river habitat. The unit 

consists of the headwaters of Locust 

Fork to Bankhead Lake, from the 

headwaters of Slab Creek to the 

confluence of Locust Fork, from the 

headwaters of Blackburn Fork to the 

confluence of Locust Fork, and from the 

headwaters of Gurley Creek to the 

confluence of Locust Fork. This area is 


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within the geographical area occupied at 

the time of listing (i.e., currently 

occupied). Based on a literature review 

by Bailey (2000, p. 1), Black Warrior 

waterdog specimens have been collected 

from the Locust Fork area. Black 

Warrior waterdogs were also collected 

in the upper Locust Fork in 2012 along 

with positive eDNA samples in this 

area. This area contains the following 

physical or biological features: 

Abundant rock crevices and rock slabs, 

leaf litter, and instream flow with 

moderate velocity and continuous daily 

discharge that allows for a longitudinal 

connectivity regime consisting of both 

surface runoff and ground water 

sources, exclusive of flushing flows 

caused by stormwater runoff, that are 

essential for the Black Warrior 

waterdog. 

Threats to the physical and biological 

features in Unit 2 that may require 

special management considerations or 

protection include: 

• Agriculture, silviculture, and 

urbanization activities that could result 

in increased bank erosion; 

• Significant changes in the existing 

flow regime due to inadequate 

stormwater management, water 

diversion, or water withdrawal; 

• Significant alteration of water 

quality; and 

• Significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge and road construction and 

maintenance; culvert and pipe 

installation; and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Unit 3: Blackwater Creek, Walker and 

Winston Counties, Alabama 

Unit 3 includes 128 rkm (80 rmi) of 

stream and river habitat. The unit 

consists of the headwaters of Blackwater 

Creek to the confluence of Mulberry 

Fork, and from the headwaters of Brown 

Creek to the confluence of Blackwater 

Creek. This area is within the 

geographical area occupied at the time 

of listing based on a literature review by 

Bailey (2000, p. 1). Black Warrior 

waterdogs were collected in Brown 

Creek in 2006. Black Warrior waterdogs 

were likely still present based on eDNA 

results (Godwin 2014, pers. comm.). 

This area contains the following 

physical or biological features: 

Abundant rock crevices and rock slabs, 

leaf litter, and instream flow with 

moderate velocity and continuous daily 

discharge that allows for longitudinal 

connectivity regime consisting of both 

surface runoff and ground water 

sources, exclusive of flushing flows 

caused by stormwater runoff, that are 

essential for the Black Warrior 

waterdog. 

Threats to the physical and biological 

features in Unit 3 that may require 

special management considerations or 

protection include: 

• Agriculture, silviculture, and 

urbanization activities that could result 

in increased bank erosion; 

• Significant changes in the existing 

flow regime due to inadequate 

stormwater management, water 

diversion, or water withdrawal; 

• Significant alteration of water 

quality; and 

• Significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge and road construction and 

maintenance; culvert and pipe 

installation; and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Unit 4: Sipsey Fork, Lawrence and 

Winston Counties, Alabama 

Unit 4 includes 124 rkm (78 rmi) of 

stream and river habitat. The unit 

consists of the headwaters of Sipsey 

Fork to Lewis Smith Lake, from the 

headwaters of Brushy Creek to Lewis 

Smith Lake, from the headwaters of 

Rush Creek to the confluence of Brushy 

Creek, and from the headwaters of 

Capsey Creek to the confluence of 

Brushy Creek. This area falls within the 

boundary of Bankhead National Forest, 

although some areas are private 

inholdings. 

This area is within the geographical 

area occupied at the time of listing, 

based on recent captures (Godwin 2016, 

entire). This area contains the following 

physical or biological features: abundant 

rock crevices and rock slabs, leaf litter, 

and instream flow with moderate 

velocity and continuous daily discharge 

that allows for longitudinal connectivity 

consisting of both surface runoff and 

ground water sources, exclusive of 

flushing flows caused by stormwater 

runoff, that are essential for the Black 

Warrior waterdog. 

Threats to the physical and biological 

features in Unit 4 that may require 

special management considerations or 

protection include: 

• Agriculture, silviculture, and 

urbanization activities that could result 

in increased bank erosion; 

• Significant changes in the existing 

flow regime due to inadequate 

stormwater management, water 

diversion, or water withdrawal; 

• Significant alteration of water 

quality; and 

• Significant changes in stream bed 

material composition and quality as a 

result of construction projects and 

maintenance activities; off-road vehicle 

use; sewer, gas, and water easements; 

bridge and road construction and 

maintenance; culvert and pipe 

installation; and other watershed and 

floodplain disturbances that release 

sediments or nutrients into the water. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action that is 

likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final regulation with 

a new definition of destruction or 

adverse modification on February 11, 

2016 (81 FR 7214). Destruction or 

adverse modification means a direct or 

indirect alteration that appreciably 

diminishes the value of critical habitat 

for the conservation of a listed species. 

Such alterations may include, but are 

not limited to, those that alter the 

physical or biological features essential 

to the conservation of a species or that 

preclude or significantly delay 

development of such features. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat, and actions 

on State, tribal, local, or private lands 

that are not federally funded or 


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274 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

authorized, do not require section 7 

consultation. 

As a result of section 7 consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid the likelihood of jeopardizing the 

continued existence of the listed species 

and/or avoid the likelihood of 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies sometimes may need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that result in a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat for the 

conservation of the Black Warrior 

waterdog. Such alterations may include, 

but are not limited to, those that alter 

the physical or biological features 

essential to the conservation of these 

species or that preclude or significantly 

delay development of such features. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that may affect critical 

habitat, when carried out, funded, or 

authorized by a Federal agency, should 

result in consultation for the Black 

Warrior waterdog. These activities 

include, but are not limited to: 

(1) Actions that would significantly 

alter water chemistry or temperature. 

Such activities could include, but are 

not limited to, release of chemicals, 

biological pollutants, or heated effluents 

into the surface water or connected 

groundwater at a point source or by 

dispersed release (non-point source). 

These activities could alter water 

conditions to levels that are beyond the 

tolerances of the species’ prey items and 

result in direct or cumulative adverse 

effects to the Black Warrior waterdog 

and its lifecycle. 

(2) Actions that would significantly 

increase sediment deposition within the 

stream channel. Such activities could 

include, but are not limited to, excessive 

sedimentation from livestock grazing, 

road construction, channel alteration, 

timber harvest, off-road vehicle use, and 

other watershed and floodplain 

disturbances. These activities could 

eliminate or reduce the habitat 

necessary for the growth and 

reproduction of the Black Warrior 

waterdog by increasing the sediment 

deposition to levels that would 

adversely affect its ability to complete 

its lifecycle. 

(3) Actions that would significantly 

alter channel morphology or geometry. 

Such activities could include, but are 

not limited to, channelization, 

impoundment, road and bridge 

construction, mining, dredging, and 

destruction of riparian vegetation. These 

activities may lead to changes in water 

flows and levels that would degrade or 

eliminate the Black Warrior waterdog 

and/or its habitat. These actions can 

also lead to increased sedimentation 

and degradation in water quality to 

levels that are beyond the tolerances of 

the Black Warrior waterdog or its prey 

items. 

Exemptions 

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

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that: 

‘‘The Secretary shall not designate as 

critical habitat any lands or other 

geographical areas owned or controlled 

by the Department of Defense, or 

designated for its use, that are subject to 

an integrated natural resources 

management plan [INRMP] prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the final critical habitat designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate critical 

habitat on the basis of the best available 

scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if she determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless she 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute, as well as the legislative 

history, is clear that the Secretary has 

broad discretion regarding which 

factor(s) to use and how much weight to 

give to any factor. In this final rule, we 

have not considered any areas for 

exclusion from critical habitat. 


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Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. In order to consider economic 

impacts, we prepared an incremental 

effects memorandum (IEM) and 

screening analysis which, together with 

our narrative and interpretation of 

effects, constitute our draft economic 

analysis of the proposed critical habitat 

designation and related factors (IEc 

2015). The analysis, dated July 15, 2015, 

was made available for public review 

from October 6, 2016, through December 

5, 2016. Following the close of the 

comment period, we reviewed and 

evaluated all information submitted 

during the comment period that may 

pertain to our consideration of the 

probable incremental economic impacts 

of this critical habitat designation. 

Additional information relevant to the 

probable incremental economic impacts 

of critical habitat designation for the 

Black Warrior waterdog is summarized 

below and available in the screening 

analysis for the Black Warrior waterdog 

(IEc 2015, entire), available at http://

www.regulations.gov in Docket No. 

FWS–R4–ES–2016–0031. 

The final critical habitat designation 

for the Black Warrior waterdog is likely 

to result, annually, in less than 2 formal 

consultations, 23 informal 

consultations, and 206 technical 

assistance efforts related to silviculture, 

mining, impoundments, commercial 

and residential development, pipelines, 

agriculture and other activities that 

impact water quality. According to the 

finding in the screening analysis, the 

administrative cost of addressing 

adverse modification in the 

consultations is estimated to be between 

about $410 to $9,000 per consultation. 

Accordingly, the incremental 

administrative cost is not likely to 

exceed $150,000 annually. This 

designation of critical habitat is not 

likely to cause more requirements under 

State or local regulations, nor is it 

expected to have perceptional effects on 

the markets. 

Exclusions Based on Economic Impacts 

As discussed above, the Service 

considered the economic impacts of the 

critical habitat designation and the 

Secretary is not exercising his discretion 

to exclude any areas from this 

designation of critical habitat for the 

Black Warrior waterdog based economic 

impacts. 

A copy of the IEM and screening 

analysis with supporting documents 

may be obtained by contacting the 

Alabama Ecological Services Field 

Office (see ADDRESSES) or by 

downloading from the internet at http:// 

www.regulations.gov. 

Exclusions Based on Impacts to 

National Security and Homeland 

Security 

Section 4(a)(3)(B)(i) of the Act may 

not cover all DoD lands or areas that 

pose potential national-security 

concerns (e.g., a DoD installation that is 

in the process of revising its INRMP for 

a newly listed species or a species 

previously not covered). If a particular 

area is not covered under section 

4(a)(3)(B)(i), national-security or 

homeland-security concerns are not a 

factor in the process of determining 

what areas meet the definition of 

‘‘critical habitat.’’ Nevertheless, when 

designating critical habitat under 

section 4(b)(2), the Service must 

consider impacts on national security, 

including homeland security, on lands 

or areas not covered by section 

4(a)(3)(B)(i). Accordingly, we will 

always consider for exclusion from the 

designation areas for which DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns. No DoD 

lands occur within or are affected by the 

designation. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors including 

whether there are permitted 

conservation plans covering the species 

in the area such as HCPs, safe harbor 

agreements, or candidate conservation 

agreements with assurances, or whether 

there are non-permitted conservation 

agreements and partnerships that would 

be encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at the existence of 

tribal conservation plans and 

partnerships and consider the 

government-to-government relationship 

of the United States with tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this final rule, we have 

determined that there are currently no 

permitted conservation plans or other 

non-permitted conservation agreements 

or partnerships for the Black Warrior 

waterdog, and the final designation does 

not include any tribal lands or tribal 

trust resources. We anticipate no impact 

on tribal lands, partnerships, permitted 

or non-permitted plans or agreements 

from this critical habitat designation. 

Accordingly, the Secretary is not 

exercising his discretion to exclude any 

areas from this final designation based 

on other relevant impacts. 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 


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independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

The Service’s current understanding 

of the requirements under the RFA, as 

amended, and following recent court 

decisions, is that Federal agencies are 

required to evaluate the potential 

incremental impacts of rulemaking only 

on those entities directly regulated by 

the rulemaking itself, and therefore, not 

required to evaluate the potential 

impacts to indirectly regulated entities. 

The regulatory mechanism through 

which critical habitat protections are 

realized is section 7 of the Act, which 

requires Federal agencies, in 

consultation with the Service, to ensure 

that any action authorized, funded, or 

carried out by the Agency is not likely 

to destroy or adversely modify critical 

habitat. Therefore, under section 7 only 

Federal action agencies are directly 

subject to the specific regulatory 

requirement (avoiding destruction and 

adverse modification) imposed by 

critical habitat designation. 

Consequently, it is our position that 

only Federal action agencies will be 

directly regulated by this designation. 

There is no requirement under the RFA 

to evaluate the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities are directly regulated by 

this rulemaking, the Service certifies 

that the final critical habitat designation 

will not have a significant economic 

impact on a substantial number of small 

entities. 

During the development of this final 

rule we reviewed and evaluated all 

information submitted during the 

comment period that may pertain to our 

consideration of the probable 

incremental economic impacts of this 

critical habitat designation. Based on 

this information, we affirm our 

certification that this final critical 

habitat designation will not have a 

significant economic impact on a 

substantial number of small entities, 

and a regulatory flexibility analysis is 

not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. OMB 

has provided guidance for 

implementing this Executive Order that 

outlines nine outcomes that may 

constitute ‘‘a significant adverse effect’’ 

when compared to not taking the 

regulatory action under consideration. 

The economic analysis finds that none 

of these criteria are relevant to this 

analysis. Thus, based on information in 

the economic analysis, energy-related 

impacts associated with Black Warrior 

waterdog conservation activities within 

critical habitat are not expected. As 

such, the designation of critical habitat 

is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments and, as such, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 


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Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 277 

designating critical habitat for the Black 

Warrior waterdog in a takings 

implications assessment. The Act does 

not authorize the Service to regulate 

private actions on private lands or 

confiscate private property as a result of 

critical habitat designation. Designation 

of critical habitat does not affect land 

ownership, or establish any closures, or 

restrictions on use of or access to the 

designated areas. Furthermore, the 

designation of critical habitat does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed and 

concludes that this designation of 

critical habitat for the Black Warrior 

waterdog does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this final rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of this 

final critical habitat designation with, 

appropriate State resource agencies in 

Alabama. We received comments from 

Alabama and have addressed them in 

the Summary of Comments and 

Recommendations section of the rule. 

From a federalism perspective, the 

designation of critical habitat directly 

affects only the responsibilities of 

Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the rule does not have substantial 

direct effects either on the States, or on 

the relationship between the national 

government and the States, or on the 

distribution of powers and 

responsibilities among the various 

levels of government. The designation 

may have some benefit to these 

governments because the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical and 

biological features of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist these local 

governments in long-range planning 

(because these local governments no 

longer have to wait for case-by-case 

section 7 consultations to occur). 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and that it meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of the Order. We are designating 

critical habitat in accordance with the 

provisions of the Act. To assist the 

public in understanding the habitat 

needs of the species, the rule identifies 

the elements of physical or biological 

features essential to the conservation of 

the Black Warrior waterdog. The 

designated areas of critical habitat are 

presented on maps, and the rule 

provides several options for the 

interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This position was upheld 

by the U.S. Court of Appeals for the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied 516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination With Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We determined that there are no tribal 

lands affected by the designation. 

References Cited 

A complete list of all references cited 

is available on the internet at http://

www.regulations.gov and upon request 

from the Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this 

rulemaking are the staff members of the 

Alabama Ecological Services Field 

Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 


jstallworth on DSKBBY8HB2PROD with RULES
278 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245; unless otherwise 

noted. 

■ 2. Amend § 17.11(h) by adding an 

entry for ‘‘Waterdog, Black Warrior’’ 

under ‘‘AMPHIBIANS’’ to the List of 

Endangered and Threatened Wildlife to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

AMPHIBIANS

* * * * * * * 

Waterdog, Black Warrior Necturus alabamensis .... Wherever found .............. E 83 FR [Insert Federal Register page where the 

document begins], 1/3/2018. 

*******

■ 3. In § 17.95, amend paragraph (d) by 

adding an entry for ‘‘Black Warrior 

Waterdog (Necturus alabamensis)’’ in 

the same alphabetical order that the 

species appears in the table at 

§ 17.11(h), to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

Black Warrior Waterdog (Necturus 

alabamensis) 

(1) Critical habitat units are depicted 

for Blount, Etowah, Jefferson, Lawrence, 

Marshall, Tuscaloosa, Walker, and 

Winston Counties, Alabama, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of the Black Warrior 

waterdog, which describe a riverine 

system with habitat to support all lifehistory stages of the Black Warrior 

waterdog, consists of the following 

components: 

(i) Geomorphically stable, medium to 

large streams (typically 4 meters (m) (13 

feet (ft)) wide or greater) with: 

(A) Substrate consisting of clay or 

bedrock with little sand, and containing 

abundant rock crevices, rock slabs, and 

leaf packs; 

(B) Moderate water velocity; and 

(C) Prey base of aquatic 

macroinvertebrates. 

(ii) Water that lacks harmful levels of 

pollutants, including inorganic 

contaminants such as copper, arsenic, 

mercury, and cadmium; organic 

contaminants such as human and 

animal waste products; endocrinedisrupting chemicals; pesticides; 

nitrogen, potassium, and phosphorus 

fertilizers; and petroleum distillates. 

(iii) Appropriate water quality 

parameters to support Black Warrior 

waterdog and primary prey base, 

including: 

(A) Water temperature not exceeding 

85° F; 

(B) Dissolved oxygen 5.5 milligrams 

per liter (mg/L) or greater; 

(C) Turbidity of an average monthly 

reading of 15 nephelometric turbidity 

units above background readings; 

(D) 115 mg/L of total suspended 

solids or less; and 

(E) A specific conductance of no 

greater than 225 microsiemens (mS) per 

centimeter at 80 °F. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on February 2, 2018. 

(4) Critical habitat map units. Data 

layers defining map units were created 

from the USGS National Hydrography 

Datasets High Resolution Flowline layer 

using Universal Transverse Mercator 

(UTM) Zone 16N coordinates. Segments 

were mapped using 1983 UTM Zone 16 

projection. The maps in this entry, as 

modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at http://www.fws.gov/daphne/, at 

http://www.regulations.gov under 

Docket No. FWS–R4–ES–2016–0031, 

and at the field office responsible for 

this designation. You may obtain field 

office location information by 

contacting one of the Service regional 

offices, the addresses of which are listed 

at 50 CFR 2.2. 

BILLING CODE 4333–15–P 


jstallworth on DSKBBY8HB2PROD with RULES
Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 279 

(5) Note: Index map follows: 


jstallworth on DSKBBY8HB2PROD with RULESER03JA18.010</GPH>

Index Map of Critical Habitat Units fOr 

Black Warrior Waterdog 

Bomt; Bowab, JelferSGn, tawrence, Marshal, Tuscaloosa, wamer, ami Winsfun Cmmties, Alabama 

..,._ Back Warlior IJ!iatltfdog Ortical i't:abilat ·Unit Number labeled 

~ lmerstates Highways 

5~:es 

(;l emmtyBoundary tOOO,OOQ 
280 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

(6) Unit 1: Yellow Creek; Tuscaloosa 

County, Alabama. 

(i) General description: Unit 1 is 

approximately 30 rkm (19 rmi) of stream 

and river habitat from the headwaters of 

Yellow Creek to Holt Lake. 

(ii) Map of Unit 1 follows: 


jstallworth on DSKBBY8HB2PROD with RULESER03JA18.011</GPH>

Unit 1 Critical Habitat for 

BJack WarriorWaterdog 

Tuscaloosa Coonty. Alabama 

~ Bladi:WafiofW~ Olifca!HaMat 

~US Highways 

, , , f:WeJs& Streams 

l..akes&Pcmds 1:184;325 
Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 281 

(7) Unit 2: Locust Fork; Blount, 

Etowah, Jefferson, and Marshall 

Counties, Alabama. 

(i) General description: Unit 2 is 

approximately 391 rkm (243 rmi) of 

stream and river habitat from the 

headwaters of Locust Fork to Bankhead 

Lake, from the headwaters of Slab Creek 

to the confluence of Locust Fork, from 

the headwaters of Blackburn Fork to the 

confluence of Locust Fork, and from the 

headwaters of Gurley Creek to the 

confluence of Locust Fork. 

(ii) Map of Unit 2 follows: 


jstallworth on DSKBBY8HB2PROD with RULESER03JA18.012</GPH>

Unit 2 Critical Habitat tor 

Black .WarriorWaterdog 

Bomd, Bnwah,Jefersoo, and. Marshal Cmmties,. Alabama 

~ ·Biack.WamorWateltlag Qil:cal ~ 

----.... tmerstateHigllway 

Rivers & Slieamli 

~s&P<mds 

0 Nabama County~ 1~555,000 
282 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

(9) Unit 3: Blackwater Creek; Walker 

and Winston Counties, Alabama. 

(i) General description: Unit 3 

consists of approximately 128 rkm (80 

rmi) of stream and river habitat from the 

headwaters of Blackwater Creek to the 

confluence of Mulberry Fork, from the 

headwaters of Brown Creek to the 

confluence of Blackwater Creek. 

(ii) Map of Unit 3 follows: 


jstallworth on DSKBBY8HB2PROD with RULESER03JA18.013</GPH>

Unit 3 Critical Habitat for 

Black Warrior Waterdog 

\Mnsloo af:ld Walker Coonties,Aiabama 

.._,... Eltact WlmlorWaiefliog Cril!:atHabltat 

Ill Banldleali.Forest SeMce Distrid 

--......, us HighwayS 

Rlv&ts &. Slwams 

Q ·eoontv6cru~ 1:250.000 
Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 283 

(10) Unit 4: Sipsey Fork; Lawrence 

and Winston Counties, Alabama. 

(i) General description: Unit 4 

consists of approximately 124 rkm (78 

rmi) of stream and river habitat from the 

headwaters of Sipsey Fork to Lewis 

Smith Lake, from the headwaters of 

Brushy Creek to Lewis Smith Lake, from 

the headwaters of Rush Creek to the 

confluence of Brushy Creek, and from 

the headwaters of Capsey Creek to the 

confluence of Brushy Creek. 

(ii) Map of Unit 4 follows: 


jstallworth on DSKBBY8HB2PROD with RULESER03JA18.014</GPH>

Unit 4 Critical Habitat for 

Black Wam.or Waterdog 

l.awrence & ~stoor CountiesiAlabama 

• Bankltead F-or~ Servk:e:Oisk'id 

~Brac~Waflk)rWatemog~~· 

..-,.,__.·US Higllways 

t&rers& StreamS 

Coollty&uridafy 

talces&Poods 0 1 .2 4 6 3 -- ~ .. -- ...... o o.75.i.5 a 4.!f 6 
284 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 

* * * * * 

Dated: November 21, 2017. 

James W. Kurth, 

Deputy Director for U.S. Fish and Wildlife 

Service, Exercising the Authority of the 

Director for U.S. Fish and Wildlife Service. 

[FR Doc. 2017–28386 Filed 1–2–18; 8:45 am] 

BILLING CODE 4333–15–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 160920866–7167–02] 

RIN 0648–XF894 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Vessels Using Jig Gear in the Central 

Regulatory Area of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by vessels using 

jig gear in the Central Regulatory Area 

of the Gulf of Alaska (GOA). This action 

is necessary to prevent exceeding the A 

season allowance of the 2018 Pacific 

cod total allowable catch apportioned to 

vessels using jig gear in the Central 

Regulatory Area of the GOA. 

DATES: Effective 0000 hours, Alaska 

local time (A.l.t.), January 1, 2018, 

through 1200 hours, A.l.t., June 10, 

2018. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

Regulations governing sideboard 

protections for GOA groundfish 

fisheries appear at subpart B of 50 CFR 

part 680. 

The A season allowance of the 2018 

Pacific cod total allowable catch (TAC) 

apportioned to vessels using jig gear in 

the Central Regulatory Area of the GOA 

is 37 metric tons (mt), as established by 

the final 2017 and 2018 harvest 

specifications for groundfish of the GOA 

(82 FR 12032, February 27, 2017) and 

inseason adjustment (82 FR 12032, 

February 27, 2017). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator) has 

determined that the A season allowance 

of the 2018 Pacific cod TAC 

apportioned to vessels using jig gear in 

the Central Regulatory Area of the GOA 

is necessary to account for the 

incidental catch in other anticipated 

fisheries. Therefore, the Regional 

Administrator is establishing a directed 

fishing allowance of 0 mt and is setting 

aside the remaining 37 mt as bycatch to 

support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Pacific cod by 

vessels using jig gear in the Central 

Regulatory Area of the GOA. After the 

effective date of this closure the 

maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the directed fishing closure of 

Pacific cod by vessels using jig gear in 

the Central Regulatory Area of the GOA. 

NMFS was unable to publish a notice 

providing time for public comment 

because the most recent, relevant data 

only became available as of December 

27, 2017. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: December 28, 2017. 

Alan D. Risenhoover, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. 2017–28389 Filed 12–28–17; 4:15 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 160920866–7167–02] 

RIN 0648–XF907 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher Vessels Using Hook-and-Line 

Gear in the Western Regulatory Area of 

the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher vessels 

using hook-and-line gear in the Western 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the A season 

allowance of the 2018 Pacific cod total 

allowable catch apportioned to catcher 

vessels using hook-and-line gear in the 

Western Regulatory Area of the GOA. 

DATES: Effective 0000 hours, Alaska 

local time (A.l.t.), January 1, 2018, 

through 1200 hours, A.l.t., June 10, 

2018. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

Regulations governing sideboard 

protections for GOA groundfish 

fisheries appear at subpart B of 50 CFR 

part 680. 

The A season allowance of the 2018 

Pacific cod total allowable catch (TAC) 

apportioned to catcher vessels using 

hook-and-line gear in the Western 

Regulatory Area of the GOA is 39 metric 

tons (mt), as established by the final 


jstallworth on DSKBBY8HB2PROD with RULES