30688 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2018–0092; 

FF09E21000 FXES11110900000 212] 

RIN 1018–BC28 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

With Section 4(d) Rule for Neuse River 

Waterdog, Endangered Species Status 

for Carolina Madtom, and Designations 

of Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), list two 

North Carolina species, the Carolina 

madtom (Noturus furiosus) as 

endangered, and the Neuse River 

waterdog (Necturus lewisi) as 

threatened, under the Endangered 

Species Act of 1973 (Act), as amended. 

We also issue a rule under section 4(d) 

of the Act for the Neuse River waterdog, 

to provide for the conservation of this 

species. In addition, we designate 

critical habitat for both species under 

the Act. For the Carolina madtom, 

approximately 257 river miles (mi) (414 

river kilometers (km)) fall within 7 units 

of critical habitat in Durham, 

Edgecombe, Franklin, Granville, 

Halifax, Johnston, Jones, Nash, Orange, 

Vance, Warren, and Wilson Counties, 

North Carolina. For the Neuse River 

waterdog, approximately 779 river mi 

(1,254 river km) fall within 18 units of 

critical habitat in Craven, Durham, 

Edgecombe, Franklin, Granville, Greene, 

Halifax, Johnston, Jones, Lenoir, Nash, 

Orange, Person, Pitt, Wake, Warren, 

Wayne, and Wilson Counties, North 

Carolina. This rule extends the Act’s 

protections to these species and their 

designated critical habitats. 

DATES: This rule is effective July 9, 

2021. 

ADDRESSES: This final rule is available 

on the internet at http://

www.regulations.gov. Comments and 

materials we received, as well as some 

supporting documentation we used in 

preparing this rule, are available for 

public inspection at http://

www.regulations.gov. All of the 

comments, materials, and 

documentation that we considered in 

this rulemaking are available at http:// 

www.regulations.gov at Docket No. 

FWS–R4–ES–2018–0092. 

For the critical habitat designation, 

the coordinates or plot points or both 

from which the maps are generated are 

included in the administrative record 

and are available at http://

www.regulations.gov at Docket No. 

FWS–R4–ES–2018–0092, and at the 

Raleigh Ecological Services Field Office 

(https://www.fws.gov/raleigh; street 

address provided above). Any 

additional tools or supporting 

information that we developed for this 

critical habitat designation will also be 

available at the Fish and Wildlife 

Service website and Field Office 

identified above, and may also be 

included in the preamble and at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Pete 

Benjamin, Field Supervisor, U.S. Fish 

and Wildlife Service, Raleigh Ecological 

Services Field Office, 551F Pylon Drive, 

Raleigh, NC 27606; telephone 919–816– 

6408. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, if we determine that a species 

is an endangered or threatened species 

throughout all or a significant portion of 

its range, we are required to promptly 

publish a proposal in the Federal 

Register and make a determination on 

our proposal within one year. To the 

maximum extent prudent and 

determinable, we must designate critical 

habitat for any species that we 

determine to be an endangered or 

threatened species under the Act. 

Whenever any species is listed as a 

threatened species, the Secretary shall 

issue such regulations as he or she 

deems necessary and advisable to 

provide for the conservation of such 

species. In addition, the Secretary may 

by regulation prohibit with respect to 

any threatened species any act 

prohibited under section 9(a)(1) of the 

Act for endangered species. Listing a 

species as an endangered or threatened 

species and designation of critical 

habitat can only be completed by 

issuing a rule. 

What this document does. This final 

rule: (1) Lists the Carolina madtom as 

endangered, (2) designates critical 

habitat for the Carolina madtom, (3) lists 

the Neuse River waterdog as threatened, 

(4) issues a rule under section 4(d) of 

the Act for the Neuse River waterdog, 

and (5) designates critical habitat for the 

Neuse River waterdog. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that habitat 

degradation (Factor A), resulting from 

the cumulative impacts of land use 

change and associated watershed-level 

effects on water quality, water quantity, 

habitat connectivity, and instream 

habitat suitability, poses the largest risk 

to the future viability of both species. 

This stressor is primarily related to 

habitat changes: The buildup of fine 

sediments, the loss of flowing water, 

instream habitat fragmentation, and 

impairment of water quality, and it is 

exacerbated by the effects of climate 

change (Factor E). The Carolina madtom 

is also impacted by predation from 

flathead catfish (Factor C). There are no 

existing regulatory mechanisms that 

ameliorate or reduce these threats such 

that the species do not warrant listing 

(Factor D). 

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

Secretary of the Interior (Secretary) to 

designate critical habitat concurrent 

with listing to the maximum extent 

prudent and determinable. Section 

3(5)(A) of the Act defines critical habitat 

as (i) the specific areas within the 

geographical area occupied by the 

species, at the time it is listed, on which 

are found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

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

the Secretary shall designate critical 

habitat on the basis of the best available 

scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. 

Economic analysis. In accordance 

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

prepared an economic analysis of the 

impacts of designating critical habitat 

for the Carolina madtom and the Neuse 

River waterdog. We published the 

announcement of, and solicited public 

comments on, the draft economic 

analyses (84 FR 23644; May 22, 2019). 

We received no comments on the draft 

economic analyses and adopted the 

draft economic analyses as final. 


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Peer review and public comments. 

During the proposed rule stage, we 

sought the expert opinions of 11 

appropriate specialists regarding the 

species status assessment report. We 

received responses from five specialists, 

which informed our determinations. 

Information we received from peer 

review is incorporated into this final 

rule. We also considered all comments 

and information we received from the 

public during two comment periods. 

Previous Federal Actions 

Please refer to the proposed listing 

and critical habitat rule (84 FR 23644; 

May 22, 2019) for the Carolina madtom 

and Neuse River waterdog, and the 

document reopening the May 22, 2019, 

proposed rule’s public comment period 

(85 FR 45839; July 30, 2020), for 

detailed descriptions of previous 

Federal actions concerning these 

species. 

Supporting Documents 

Species status assessment (SSA) 

teams prepared SSA reports for the 

Carolina madtom and Neuse River 

waterdog. The SSA teams were 

composed of Service biologists, in 

consultation with other species experts. 

The SSA reports each represent a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. The SSA reports 

and other materials relating to this rule 

can be found on the Service’s Southeast 

Region website at https://www.fws.gov/ 

southeast/, at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2018–0092, and at the 

Raleigh Ecological Services Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

Summary of Changes From the 

Proposed Rule 

This final rule incorporates several 

changes to our proposed rule (84 FR 

23644; May 22, 2019) based on the 

comments we received. These changes 

are summarized in the document that 

reopened the proposed rule’s public 

comment (85 FR 45839; July 30, 2020), 

as well as below under Summary of 

Comments and Recommendations. 

Minor, nonsubstantive changes and 

corrections are made throughout this 

rule in response to comments. Based on 

these comments, we also incorporate as 

appropriate new information into our 

SSA reports, including updated survey 

information. However, the information 

we received during the public comment 

period on the proposed rule did not 

change our determination that the 

Carolina madtom is an endangered 

species and the Neuse River waterdog is 

a threatened species. 

We received substantive comments on 

the proposed rule issued under section 

4(d) of the Act (‘‘4(d) rule’’) for the 

Neuse River waterdog and the critical 

habitat designations for both species. 

We have made changes to this rule as 

a result of the public comments we 

received. We modified the language in 

the Neuse River waterdog 4(d) rule for 

each exception for incidental take. In 

summary, we modified the exception for 

species restoration efforts by State 

wildlife agencies to include monitoring, 

which is necessary to determine the 

success of captive propagation and 

stocking efforts; for channel restoration 

projects to add language that would 

require surveys for and relocation of 

Neuse River waterdogs observed prior to 

commencement of restoration action; for 

bank stabilization projects to add a 

requirement that appropriate ‘‘native’’ 

vegetation, including woody and 

herbaceous species appropriate for the 

region and habitat, be used for 

stabilization; and for forestry-related 

actions to reflect alternative language 

provided by the North Carolina Forest 

Service (NCFS) (see (28) Comment 

under Summary of Comments and 

Recommendations, below). In terms of 

critical habitat, for the Carolina 

madtom, we updated ownership 

information for the Eno River critical 

habitat (Unit 4), we modified the 

occupancy determination from 

unoccupied to occupied for critical 

habitat Unit 6 (Contentnea Creek) based 

on new data for the species (see (8) 

Comment under Summary of Comments 

and Recommendations, below). For the 

Neuse River waterdog, we added two 

occupied critical habitat units (Unit 3— 

Bens Creek and Unit 18—Tuckahoe 

Swamp) and modified to add or remove 

areas to/from five units (Unit 1—Upper 

Tar River, Unit 4—Fishing Creek 

Subbasin, Unit 6—Middle Tar River 

Subbasin, Unit 10—Middle Creek, and 

Unit 17—Trent River) of the critical 

habitat designation, for a total of 779 

miles, an increase of 41 miles from the 

proposed designation. 

As indicated in the document that 

reopened the proposed rule’s public 

comment (85 FR 45839; July 30, 2020), 

we have also changed the way in which 

the provisions of the 4(d) rule for the 

Neuse River waterdog will appear at 50 

CFR 17.43(f). Specifically, we no longer 

set forth a blanket statement applying 

all prohibitions and provisions of 50 

CFR 17.31 and 17.32 to the Neuse River 

waterdog. Instead, we set forth specific 

prohibitions and exceptions to those 

prohibitions in the 4(d) rule, but the 

substance of the prohibitions and the 

exceptions to those prohibitions, as 

included in the May 22, 2019, proposed 

rule (84 FR 23644), has not changed. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

May 22, 2019 (84 FR 23644), and in the 

document published on July 30, 2020 

(85 FR 45839) that reopened the 

comment period on the May 22, 2019, 

proposed rule, we requested that all 

interested parties submit written 

comments on the proposals. We also 

contacted appropriate Federal and State 

agencies, scientific experts and 

organizations, and other interested 

parties and invited them to comment on 

the proposals. Newspaper notices 

inviting general public comment were 

published in the Raleigh News and 

Observer on June 3, 2019, and on 

August 9, 2020. We did not receive any 

requests for a public hearing. All 

substantive information provided 

during the comment periods has either 

been incorporated directly into the final 

determinations or is addressed below. 

For topics we received comments on 

during both comment periods (e.g., the 

forestry exception language in the 4(d) 

rule), we identify whether the 

comments were received as part of the 

initial comment period (May 22–July 22, 

2019) or the reopened comment period 

(July 30–August 31, 2020). 

Peer Reviewer Comments 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought peer review of the SSA 

reports. We sent the Carolina madtom 

SSA report to six independent peer 

reviewers and the Neuse River waterdog 

SSA to five independent peer reviewers; 

all peer reviewers had expertise that 

included familiarity with Carolina 

madtom or Neuse River waterdog and 

their habitats, biological needs, and 

threats. We received responses from 

four of the peer reviewers for the 

Carolina madtom and one of the peer 

reviewers for the Neuse River waterdog. 

We reviewed all comments we 

received from the peer reviewers for 

substantive issues and new information 

regarding the information contained in 

the SSA reports. The peer reviewers 

generally concurred with our methods 

and conclusions, and provided 

additional information, clarifications, 

and suggestions to improve the final 

SSA reports. Peer reviewer comments 

are addressed in the following summary 


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and were incorporated into the SSA 

reports as appropriate. 

Carolina Madtom 

(1) Comment: One peer reviewer 

mentioned that predation by flathead 

catfish is likely a dominant threat to the 

Carolina madtom but appears minimally 

considered as a habitat factor in the SSA 

report. The commenter suggested that in 

addition to physical habitat attributes, 

biotic factors may in many cases 

(including this case) be critically 

important. This important habitat 

influence could be emphasized more in 

the SSA report. 

Our Response: Data on the 

distribution, abundance, or predation 

pressure on madtoms for flathead 

catfish in either the Neuse or Tar River 

basins are not available; therefore, we 

could not explicitly include flathead 

catfish as a metric. Section 4.4 of the 

SSA report describes the significant 

threat that flathead catfish pose to the 

Carolina madtom, as does the overall 

viability summary for the species. 

(2) Comment: One peer reviewer 

suggested that we make a strong 

statement concerning the endemism of 

the Tar-Neuse ecosystem and what a 

unique crucible of evolution it has been, 

as manifested in several endemic 

species, including the Carolina madtom, 

Tar River spinymussel (Parvaspina 

steinstansana), pinewoods shiner 

(Lythrurus matutinus), Neuse River 

waterdog, and others. The uniqueness of 

the overall ecosystem cannot be 

overemphasized, and the mutual 

benefits derived from the listing of any 

of the endemic organisms has appeal. 

Our Response: We note the endemism 

of the Carolina madtom to the Tar and 

Neuse river systems in chapter 3 of the 

SSA report. While listing and critical 

habitat designation under the Act only 

apply to the species under 

consideration, we acknowledge that 

protections derived from implementing 

the Act are beneficial to the overall 

habitat and other organisms that cooccur with the Carolina madtom. 

However, benefits that listing a species 

under the Act may have on the overall 

ecosystem is not a factor for 

consideration when determining 

whether a species warrants listing under 

the Act. 

(3) Comment: One peer reviewer 

commented that the SSA report suggests 

that instream habitat, water flow, and 

invasive fish are the main factors 

influencing madtom populations, and it 

is unclear how any of these factors are 

attributable to Confined Animal Feeding 

Operations (CAFOs). There is no direct 

linkage provided in the SSA report. 

Our Response: Multiple sections in 

the SSA report state that the main 

habitat elements that influence Carolina 

madtom condition are water quality 

(CAFOs are a part of this, as are 

National Pollutant Discharge 

Elimination System (NPDES) 

discharges, as they contribute to 

identified impaired streams), water 

quantity, connectivity (potentially 

affected by CAFOs located within 

floodplains), instream habitat (also 

affected by CAFOs when runoff 

overwhelms instream flows), and 

predation by flathead catfish. Section 

4.2 of the SSA report details the effects 

of CAFOs on the habitats within the 

madtom’s range (Service 2021a, pp. 35– 

36). 

(4) Comment: One peer reviewer 

expressed disappointment that the 

Service did not reference materials 

provided via email in July 2016, stating 

that the SSA report has a slanted 

viewpoint, has cherry-picked negative 

impacts associated with forest 

management, and only focuses on those 

in the analysis. 

Our Response: The material provided 

to us in July 2016 has been cited 

directly in the revised forestry section 

(section 4.3) of the SSA report (Service 

2021a, pp. 36–40). We note that the very 

first sentence in this section of the SSA 

report states that a forested landscape 

provides ideal conditions for aquatic 

ecosystems. In the SSA report and in 

this final rule, we also note that 

silvicultural activities, when performed 

according to strict forest practices 

guidelines (FPGs) or best management 

practices (BMPs), can retain adequate 

conditions for aquatic ecosystems. 

However, we also note that, when FPGs/ 

BMPs are not implemented or 

inadequate implementation occurs, 

these forestry activities can also ‘‘cause 

measurable impacts’’ (NCASI 2015, p. 1) 

and contribute to the myriad of stressors 

facing aquatic systems in the Southeast 

(Service 2021a, p. 37). In addition, we 

note that one major, albeit temporary, 

BMP failure, a harvest that is noncompliant with BMPs or FPGs, or failure 

to maintain a BMP, can cause enough 

sedimentation to smother nests and/or 

cause enough stress to have irreversible 

impacts to Carolina madtom 

populations. 

(5) Comment: One peer reviewer 

recommended that the Service solicit a 

representative of the agriculture 

community to participate in the peer 

review of the SSA report. The peer 

reviewer noted that both the Neuse and 

Tar-Pamlico River basins have a 

substantial amount of agricultural 

operations and it may be beneficial for 

all parties to understand how that type 

of land use may play a role in 

supporting future species conservation 

needs. 

Our Response: We sought peer review 

from an agriculture expert in the North 

Carolina Department of Agriculture for 

the Neuse River waterdog SSA report 

(which has very similar analysis of 

agricultural operations as the Carolina 

madtom SSA report). However, we did 

not receive a response to our request. 

Neuse River Waterdog 

(6) Comment: One peer reviewer had 

questions about the occupancy metrics 

and whether detection probabilities 

were incorporated into the estimates of 

occupancy, as well as the time periods 

that the survey efforts represented in 

order to better understand the 

underlying analyses presented in the 

SSA report. 

Our Response: We added detection 

probability information into the SSA 

report (Service 2021b, p. 19) and note 

that for the original analysis, site 

occupancy indicates a minimum, naı ̈ve 

occupancy (i.e., detection probabilities 

were not incorporated into the initial 

estimates). We are currently working 

with North Carolina State University to 

perform an in-depth occupancy analysis 

for Neuse River waterdog; however, this 

analysis has not been completed, and 

the resulting information is not 

available for incorporation. We also note 

that the time periods and replicated 

methodologies for the survey efforts are 

also described in section 3.3.1 of the 

SSA report (Service 2021b, p. 19). 

State Agency Comments 

We received comments from three 

State agencies, the North Carolina 

Wildlife Resources Commission 

(NCWRC), the North Carolina Forest 

Service (NCFS), and the Virginia 

Department of Forestry (VDOF). Because 

we received several comments from 

both NCFS and VDOF and from the 

public regarding forestry considerations, 

we have integrated NCFS/VDOF 

comments and responses under Public 

Comments, below. 

Carolina Madtom 

(7) Comment: The NCWRC provided a 

thorough review of the SSA report and 

included many comments updating data 

and interpretations. The partner review 

suggested that we revise the document 

to include the Trent River Subbasin 

within the greater Neuse River basin, 

based on the hydrologic unit 

categorization, to avoid confusion. 

Our Response: Nearly all data 

revisions and interpretations were 

incorporated into the revised SSA 

report. In section 3.1 of the SSA report, 


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we describe why we separated the Trent 

River Subbasin: ‘‘Because of salt water 

influence, the habitats in the Trent River 

system are isolated from the Neuse 

River and its tributaries; therefore, we 

consider the Trent River system as a 

separate basin (i.e., population), even 

though it is technically part of the larger 

Neuse River Basin’’ (Service 2021a, p. 

9). 

(8) Comment: The NCWRC provided a 

new record during the public comment 

period in 2019, of a Carolina madtom 

collected from Contentnea Creek near 

NC 42 in July 2018. 

Our Response: While we included 

this reach in proposed critical habitat, 

the May 22, 2019, proposed rule (84 FR 

23644) considered Contentnea Creek to 

be unoccupied, with the last known 

record from 2007. With this 2018 

record, we consider the Contentnea 

Creek critical habitat unit to be 

occupied. Therefore, we have updated 

the designated critical habitat to reflect 

that Unit 6—Contentnea Creek is 

occupied for the Carolina madtom. We 

revised the critical habitat designation 

to address this comment in our July 30, 

2020, document reopening the May 22, 

2019, proposed rule’s public comment 

period (85 FR 45839). 

Neuse River Waterdog 

(9) Comment: The NCWRC provided a 

thorough review of the SSA report and 

included many comments updating data 

and interpretations. The partner review 

indicated concern about how current 

occupancy was summarized (i.e., that 

the species currently occupies 73 

percent of its historical range), 

indicating that the recent survey efforts 

suggest a 50 percent decline in occupied 

sites from the surveys done in the early 

1980s. 

Our Response: Data revisions and 

interpretations were incorporated into 

the revised SSA report. We note that 

current occupancy versus the 

occupancy of historical range at the 

species level is summarized by 

watershed (or hydrologic unit) 

occupancy within MUs rather than by 

individual site occupancy. This 

difference likely accounts for the 

apparent discrepancy noted by the 

commenter. The SSA report includes 

details about changes at the site level, as 

well as the overall watershed, to provide 

as complete a picture as possible of 

changes from historical times to the 

present day (Service 2021b, p. v). 

(10) Comment: The NCWRC provided 

several new records for Neuse River 

waterdog during the public comment 

period in 2019, including records in 

Middle Creek (Johnston County), 

Tuckahoe Swamp (Jones County), Tar 

River (Granville County), and Fishing 

Creek (Nash County). 

Our Response: We included these 

new records and updated five critical 

habitat units (Unit 1—Upper Tar River, 

Unit 4—Fishing Creek Subbasin, Unit 

6—Middle Tar River Subbasin, Unit 

10—Middle Creek, and Unit 17—Trent 

River). We revised Unit 1 to add 3.7 

miles (6 km) of the Upper Tar River 

based on a 2018 observation provided 

by NCWRC of Neuse River waterdog. 

We revised Unit 4 to add 20 miles (32.3 

km) of Fishing Creek based on a 2019 

observation provided by NCWRC of 

Neuse River waterdog. We revised Unit 

6 to add 11 miles (17.8 km) of the upper 

reach of the Tar River based on a 2019 

observation by a permitted private 

consultant of Neuse River waterdog. We 

revised Unit 10 to add 23.2 miles (37.4 

km) of Middle Creek based on two 2018 

observations provided by NCWRC of 

Neuse River waterdog. These revisions 

were part of our July 30, 2020, 

document reopening the May 22, 2019, 

proposed rule’s public comment period 

(85 FR 45839). 

Public Comments 

During the initial comment period, we 

received 83 public comments on the 

proposed rule, and during the reopened 

comment period, we received 16 public 

comments. A majority of the comments 

supported the listing determinations 

and critical habitat designations, none 

opposed the designations, and some 

included suggestions on how we could 

refine or improve the 4(d) rule for the 

Neuse River waterdog and the critical 

habitat designations for both species. 

All substantive information provided to 

us during the comment periods has been 

incorporated directly into this final rule 

or is addressed below. For topics for 

which we received comments during 

both comment periods (e.g., the forestry 

exception language in the 4(d) rule), we 

identify whether the comments were 

received during the initial comment 

period (May 22–July 22, 2019) or the 

reopened comment period (July 30– 

August 31, 2020). 

(11) Comment: One commenter 

indicated that the Service should 

consider forestry BMPs as part of the 

overall conservation benefit for the 

species, and account for these beneficial 

actions in any threat analysis. 

Our Response: Forested watersheds 

contribute to the current condition of 

each species and have been factored in 

as a positive factor (i.e., benefit) under 

the ‘‘Connectivity’’ habitat element as 

described in chapter 3 of each species’ 

SSA report. We also note that forestry 

activities were not carried forward as a 

primary threat for our future condition 

analyses because the future condition 

analyses focused on the main threats 

(urbanization and climate change) that 

are predicted to affect the species’ future 

condition. 

(12) Comment: One commenter stated 

that the proposed rule does not present 

evidence that forest management is 

contributing elevated levels of sediment 

to streams occupied by the Neuse River 

waterdog and Carolina madtom. 

Our Response: Sediment is one of the 

most frequently cited water quality 

concerns associated with forestry 

operations and is one of the top causes 

of river and stream impairment in the 

United States (EPA 2017, p. 3). 

Sedimentation is one of the primary 

stressors to aquatic fauna, including the 

Neuse River waterdog and Carolina 

madtom (Service 2021ab, chapter 4). 

Forestry practices can alter the natural 

sediment balance and lead to increased 

rates of sediment input, resulting in 

increased concentrations of sediment in 

the water body and increased deposition 

of sediment on the stream bottom. The 

forest industry recognizes that harvest 

and management practices cause 

sedimentation, which is why they have 

BMPs, or practices that are used to 

minimize water pollution from 

sedimentation. BMP implementation 

rates are generally high, and in the 

Neuse and Tar-Pamlico River basins, 

overall BMP implementation rates are 

approximately 88 to 90 percent (Coats 

2017, p. 38). While we do not know the 

exact location of all forestry operations 

in the Neuse and Tar-Pamlico River 

basins (see maps from North Carolina 

Forest Service (NCFS) 2018, p. 43), lack 

of BMP implementation was 

approximately 10 to 12 percent for sites 

assessed in those watersheds from 

2012–2016; identified risks to water 

quality were most often attributed to 

improper BMPs for Streamside 

Management Zones (SMZs) and stream 

crossings (Coats 2017, pp. 8–9), which 

likely contributed sedimentation to 

habitats in the systems that the 

waterdog and madtom occupy. 

(13) Comment: To provide additional 

information about compliance, one 

commenter described the process for 

when a ‘‘significant risk to water 

quality’’ is observed during BMP 

implementation inspections. They 

indicated that the presence of a 

significant risk triggers further 

investigation by State agency inspectors 

that leads to collaborative efforts among 

State agencies, the forest landowner, 

logger, and/or contractor to perform 

corrective measures to remedy the issue. 

After a reasonable period of time, a 

follow-up site evaluation is made to 

assess compliance with the 


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recommended measures. Willful 

noncompliance with State agency 

recommendations typically results in a 

referral to the appropriate regulatory 

agency for enforcement action. 

Our Response: We acknowledge the 

protocols in place to remedy water 

quality violations. We recommend that 

the Service be included in the agencies 

notified if water quality violations occur 

to habitats occupied by the Neuse River 

waterdog or Carolina madtom. 

(14) Comment: During the initial 

comment period, one commenter noted 

that within the range of the Neuse River 

waterdog and Carolina madtom, North 

Carolina BMPs require a minimum SMZ 

width of 50 feet on each side of the 

stream, and referenced chapter 4 (SMZs 

and Riparian Buffers) of the NCFS’s 

BMP manual. 

Our Response: Our review of the 

NCFS’s BMP Manual indicates that 50- 

foot buffers are part of the Tar-Pamlico 

and Neuse riparian buffer rules; 

however, recent correspondence with 

the NCFS clarifies that forest harvesting 

is allowed in all zones of the 50-foot 

buffer (see chapter 02 of title 15A of the 

North Carolina Administrative Code 

(NCAC) at section 02B .0612 (15A 

NCAC 02B .0612); NCFS 2020, p.1). 

(15) Comment: One commenter noted 

that the Federal Highway 

Administration (FHWA) has not 

consulted with the Service regarding the 

Carolina madtom or Neuse River 

waterdog, or analyzed impacts to the 

species before pursuing construction of 

the project in Wake/Johnston Counties. 

Our Response: While this comment is 

outside the scope of this rulemaking, the 

FHWA/North Carolina Department of 

Transportation (NCDOT) re-initiated 

section 7 consultation/conference with a 

revised biological assessment for the 

Complete 540 project dated July 2019. 

The Service issued a revised biological 

opinion (BO) for the Complete 540 

project on October 15, 2019. This BO 

primarily concerned the dwarf 

wedgemussel (Alasmidonta heterodon), 

yellow lance (Elliptio lanceolata), 

Atlantic pigtoe (Fusconaia masoni), and 

proposed critical habitat for the Atlantic 

pigtoe. However, we also concurred that 

the project may affect, but is not likely 

to adversely affect, the Neuse River 

waterdog. This conclusion was based 

primarily on the fact that repeated 

surveys never found the species 

anywhere near the action area, and the 

closest record was 5 to 6 miles 

downstream in Swift Creek. FHWA/ 

NCDOT determined the project would 

have no effect on the Carolina madtom 

since the species is not currently 

considered present in or near the action 

area. Therefore, there was no 

consultation/conference for the Carolina 

madtom. 

(16) Comment: When the Service 

proposes critical habitat for these 

species, it should take into 

consideration the economic benefits of 

protecting habitat for the species, 

including ecosystem services, the 

protection of clean water, the reduced 

cost of water treatment for drinking 

water supplies, and public health 

benefits. 

Our Response: As noted in the draft 

economic analysis (DEA), the primary 

intended benefit of critical habitat is to 

support the conservation of endangered 

and threatened species, such as the 

Carolina madtom and Neuse River 

waterdog. In order to quantify and 

monetize direct benefits of the 

designation, information would be 

needed to determine both the 

incremental change in the probability of 

madtom or waterdog conservation 

expected to result from the critical 

habitat designation and the public’s 

willingness to pay for such beneficial 

changes. The conclusion was that 

additional project modifications to 

avoid adverse modification of critical 

habitat for either the Carolina madtom 

or Neuse River waterdog are not 

anticipated. Analysis of ecosystem 

services, such as clean water, or broad 

benefits of ecosystem services to human 

populations that may result from critical 

habitat designations are generally 

outside the scope of economic 

considerations for the designation of 

Carolina madtom and Neuse River 

waterdog critical habitat, primarily 

because the uncertainties associated 

with monetary quantification of these 

benefits are large. 

(17) Comment: One commenter 

suggested that the Service consider the 

protection of these species to be an 

environmental justice issue. The 

commenter provided the U.S. 

Environmental Protection Agency (EPA) 

definitions of ‘‘environmental justice’’ 

(i.e., the fair treatment and meaningful 

involvement of all people regardless of 

race, color, national origin, or income 

with respect to the development, 

implementation, and enforcement of 

environmental laws, regulations, and 

policies), ‘‘fair treatment’’ (i.e., no group 

of people should bear a disproportionate 

share of the negative environmental 

consequences resulting from industrial, 

governmental, and commercial 

operations or policies), and ‘‘meaningful 

involvement’’ (i.e., people have an 

opportunity to participate in decisions 

about activities that may affect their 

environment and/or health; the public’s 

contribution can influence the 

regulatory agency’s decision; their 

concerns will be considered in the 

decision making process; and the 

decision makers seek out and facilitate 

the involvement of those potentially 

affected). The commenter further stated 

that protecting these species and their 

habitats is an environmental justice 

imperative, and would have positive 

benefits for public health and well-being 

in the Coastal Plain of North Carolina 

and beyond. 

Our Response: For listing actions, the 

Act requires that we make 

determinations ‘‘solely’’ on the basis of 

the best available scientific and 

commercial data available (16 U.S.C. 

1533(b)(1)(A)). Still, we recognize the 

indirect benefits, including the 

aesthetic, recreational, and overall 

health benefits of listing species and 

designating critical habitat, that this rule 

may provide for all human communities 

surrounding and including the habitats 

that both species occupy. 

Neuse River Waterdog 

(18) Comment: One commenter stated 

that the Neuse River waterdog should be 

listed as endangered because of the 

threat of climate change. 

Our Response: As described below in 

Neuse River Waterdog: Status 

Throughout All of Its Range and in 

Neuse River Waterdog: Status 

Throughout a Significant Portion of Its 

Range, we considered whether the 

Neuse River waterdog is presently in 

danger of extinction throughout all or a 

significant portion of its range and 

determined that endangered status is 

not appropriate for the species’ entire 

range or for a portion of its range. The 

current conditions as assessed in the 

Neuse River waterdog SSA report show 

that the species exists in nine MUs over 

three different populations (river 

systems) over a majority (65 percent) of 

the species’ historical range. The Neuse 

River waterdog still exhibits 

representation across both 

physiographic regions, and extant 

populations remain across the range. In 

short, while the primary threats are 

currently acting on the species and 

many of those threats are expected to 

continue into the future, we did not find 

that the species is currently in danger of 

extinction throughout all or a significant 

portion of its range. 

(19) Comment: Several commenters 

indicated that they support the listing of 

the Neuse River waterdog (and Carolina 

madtom), as well as the designation of 

critical habitat to protect and recover 

both species. However, while they 

supported the listing and designation of 

critical habitat, they opposed the 4(d) 

rule, stating that it would severely limit 

the effectiveness of other conservation 


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measures and reduce the likelihood of 

survival and recovery. One commenter 

mentioned that the proposed exceptions 

in the 4(d) rule concerning silviculture 

practices are an inappropriate and 

unlawful use of a 4(d) rule and that the 

Service’s proposal to provide for the 

conservation needs of these sensitive 

aquatic species via ‘‘BMPs’’ and 

Sustainable Forestry Initiative/Forest 

Stewardship Council/American Tree 

Farm System certification standards is 

not a serious one. The commenters 

indicated that the proposed 4(d) rule 

fails to set forth a protective regulation 

that provides for the specific 

conservation needs of the Carolina 

madtom and Neuse River waterdog. 

Our Response: Section 4(d) of the Act 

states that the Secretary shall issue such 

regulations as he or she deems 

necessary and advisable to provide for 

the conservation of species listed as 

threatened. Section 4(d) of the Act 

provides the Secretary with wide 

latitude of discretion to select and 

promulgate appropriate regulations 

tailored to the specific conservation 

needs of the threatened species. As 

described below under II. Final Rule 

Issued Under Section 4(d) of the Act for 

the Neuse River Waterdog, the 

provisions of our 4(d) rule will promote 

conservation of the Neuse River 

waterdog by encouraging management 

of the landscape in ways that meet both 

land management considerations and 

the conservation needs of the Neuse 

River waterdog. The prohibitions and 

exceptions to the prohibitions identified 

in the 4(d) rule are considered necessary 

and advisable for the conservation of the 

Neuse River waterdog. 

Development and refinement of forest 

management BMPs has resulted in 

substantial improvements to forestry’s 

impacts on water quality in recent 

decades, and the reduced risks of these 

practices to water quality justify the 

Service’s inclusion of a 4(d) exception 

for forestry for the Neuse River 

waterdog. North Carolina Forestry 

BMPs, properly implemented, protect 

water quality and help conserve aquatic 

species, including the Neuse River 

waterdog. 

The Service has determined that the 

Carolina madtom meets the definition of 

an endangered species, and the Act does 

not allow issuance of a 4(d) rule for a 

species listed as endangered. 

(20) Comment: Several comments we 

received during the reopened comment 

period (July 30–August 31, 2020), 

including from the NCFS, indicated the 

Service did not explain or justify the 

necessity for a two-zoned SMZ, SMZs 

wider than those already recommended 

by State forestry BMPs within the 

geographic range of Neuse River 

waterdog, or the application of SMZs 

related to Virginia and North Carolina 

trout waters to waters where the Neuse 

River waterdog occurs. Some comments 

further suggested that references to trout 

rules or BMPs beyond those already 

required within the range of Neuse 

River waterdog would be confusing and 

challenging to implement. Several such 

comments further questioned any 

additional conservation benefits that 

SMZs wider than those currently 

recommended in State BMPs would 

provide. 

Our Response: It was the Service’s 

intent to provide additional discussion 

and explanation for the exception under 

4(d) resulting from incidental take from 

certain forestry practices, based on 

comments received on the May 22, 

2019, proposed rule (84 FR 23644). 

During that comment period, we 

received several comments stating that 

the proposed 4(d) rule language, 

referring to ‘‘highest standard BMPs’’ 

was too vague or confusing. By referring 

to BMPs related to trout waters 

(specifically SMZs), it was the Service’s 

intent to use a frame of reference that 

would be familiar to forest landowners 

and managers for species sensitive to 

sedimentation and thermal effects on 

stream waters to better explain how the 

exception would apply, but not to apply 

those particular parameters. Comments 

that mentioned trout rules seemed to be 

referring to the preamble language, 

rather than the regulation text. The 

proposed regulation text outlined BMPs, 

but did not include references to trout. 

However, we understand that the 

references to trout waters in the 

preamble has caused confusion for 

multiple reasons, in part because the 

Neuse River waterdog occurs in a region 

different from trout, and it was not 

clearly stated how the Neuse River 

waterdog is similarly sensitive to 

sedimentation (a primary factor 

responsible for the derivation of BMPs 

specific to trout waters). There was also 

confusion as a result of multiple other 

regulations and recommended practices 

that already exist in the Neuse and Tar 

watersheds where the species occurs 

(i.e., riparian buffer rules and North 

Carolina’s FPGs) and for which the 

NCFS maintains a BMP manual with 

recommended practices for meeting 

compliance with FPGs. The concerns of 

the commenters have been carefully 

considered and addressed by revising 

the 4(d) rule to specify the habitat 

management goals necessary to provide 

for the breeding, feeding, and sheltering 

needs of the Neuse River waterdog, 

rather than prescribing a particular 

management practice with which to 

achieve necessary habitat protection 

(e.g., we removed the two-zoned SMZs 

of variable width; see II. Final Rule 

Issued Under Section 4(d) of the Act for 

the Neuse River Waterdog, below, for 

revisions). 

(21) Comment: A couple of 

commenters stated that SMZs are part of 

a suite of BMPs and that they should not 

be proposed alone, indicating that we 

should include mention of all BMPs in 

the exception for incidental take. 

Our Response: We agree with this 

comment and note that the Service 

proposed the exception under section 

4(d) for incidental take from certain 

forestry practices to include multiple 

State-approved BMPs, highlighting 

considerations for SMZs because of 

their importance to stream habitat, along 

with considerations for stream 

crossings, skid trails, and access roads. 

However, during both comment periods, 

commenters have demonstrated 

particular concern over that portion of 

the proposed exception on forestry 

SMZs. As noted in the previous 

response, we have revised this 

exception for incidental take under 

section 4(d) by removing the 

requirement of a two-zoned SMZ; the 

revision now includes exceptions for 

take associated with practices following 

forestry BMPs so that it will not add 

confusion and will be more practical to 

implement along with existing FPGs 

and State-recommended BMPs, while 

also promoting conservation of Neuse 

River waterdog and its habitat. 

(22) Comment: We received many 

comments stating that State-approved 

BMPs are sufficient for the protection of 

the Neuse River waterdog because BMP 

implementation rates are high. They 

indicate that because BMP 

implementation rates are high, we 

should provide an exception for 

incidental take for all State-approved 

BMPs. 

Our Response: We agree that when 

used and properly implemented, BMPs 

can offer a substantial improvement to 

water quality compared to forestry 

operations where BMPs are not properly 

implemented; it is for this reason that 

the Service has included an exception 

for incidental take for forest 

management that adheres to BMPs in 

the 4(d) rule for the Neuse River 

waterdog. The commenters provided 

information that indicates rates of 

forestry BMP implementation across the 

Southeast, and the nation, are generally 

high. We agree but assert that forest 

management is not risk-free for wildlife 

or water quality. Some studies focused 

on the effects of silvicultural activities 

on aquatic salamanders have found that 


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logging-related sedimentation can 

reduce larval and adult abundance 

(Lowe et al. 2004, p. 167; Moseley et al. 

2008, pp. 303–305), or have synergistic 

impacts on populations when combined 

with other stressors (e.g., predatory 

fishes; Lowe et al. 2004, pp. 167–170), 

and that wide (∼100 ft (30 m)) riparian 

buffers are needed to offer similar 

protection as unharvested sites, while 

narrow (∼30 ft (9 m)) buffers had similar 

effects on salamanders as no buffer at all 

(Peterman & Semlitch 2009, pp. 10–13). 

The most recent survey of BMP 

implementation in North Carolina 

showed that implementation rates— 

while averaging 84 percent Statewide 

and averaging 88–90 percent in the 

Neuse and Tar-Pamlico River basins— 

did vary among regions within the State, 

and they varied with respect to the type 

of BMP being evaluated (Coats 2017, pp. 

8–41). The NCFS reported that BMPs 

were not applied or properly 

implemented in 4,584 opportunities in 

their assessments, and that 30 percent of 

these cases posed a risk to water quality 

(Coats 2017, p. 8). The NCFS also 

reported that 74 percent of all identified 

risks to water quality were associated 

with the lack of application or improper 

implementation of BMPs related to 

stream crossings (average 

implementation rate = 79 percent; range 

72–83 percent), SMZs (average 

implementation rate = 86 percent; range 

72–91 percent), and post-harvest 

rehabilitation of a site (average 

implementation rate = 71 percent; range 

53–83 percent) (Coats 2017, pp. 8, 9, 18– 

19, 26–34). Such incidents of 

improperly implemented or unused 

BMPs and their associated risks to water 

quality and habitat are important to 

acknowledge in the context of rare, 

imperiled species, where any one 

particular localized event may result in 

further imperilment of a population and 

set back recovery of the species. 

Accordingly, we cannot assume that 

BMPs will unequivocally be 

implemented. 

Development and refinement of BMPs 

has resulted in substantial 

improvements to forestry’s impacts on 

water quality in recent decades and has 

created a culture of water stewardship 

in the forest landowner community, 

making this stakeholder group an 

important ally in the conservation of 

imperiled species. The reduced risks to 

water quality justify the Service’s 

inclusion of an exception for incidental 

take associated with forestry BMPs in 

the 4(d) rule for the Neuse River 

waterdog, and the remaining presence of 

risk supports the need to specify 

conditions required for the exception to 

apply. Incidental take associated with 

forest management activities in the 

range of Neuse River waterdog that do 

not meet the conditions of the exception 

in the 4(d) rule may still occur via 

consultation with the Service under 

section 7, or a conservation agreement 

under section 10, of the Act. 

Because BMPs in North Carolina are 

voluntary, existing BMPs will be 

sufficient for the protection of the Neuse 

River waterdog if, and only if, they are 

widely implemented in watersheds 

where the species occurs and are 

implemented appropriately such that all 

forest management operations maintain 

compliance with North Carolina’s FPGs 

and achieve management goals related 

to conserving and maintaining suitable 

habitat for the Neuse River waterdog 

(which closely mirror the FPG 

requirements). North Carolina Forestry 

BMPs, properly implemented, protect 

water quality and help conserve aquatic 

species, including the Neuse River 

waterdog. Forest landowners who 

properly implement those BMPs are 

helping conserve the waterdog, and this 

4(d) rule is an incentive for all 

landowners to properly implement 

BMPs to avoid any take implications. 

Further, those forest landowners who 

are third-party-certified to a credible 

forest management standard are 

providing audited certainty that BMP 

implementation is taking place across 

the landscape; thus, the exception for 

incidental take in the 4(d) rule will 

apply to their forestry activities. 

(23) Comment: Some of the comments 

about BMPs being sufficient (see (24) 

Comment, above) further suggested that 

assessments of water quality using 

aquatic insects as indicators confirm 

that BMPs are protective of water 

quality and habitat for aquatic species. 

Therefore, BMPs are sufficient for 

protecting Neuse River waterdogs as 

well. 

Our Response: Much of the literature 

shared by commenters on the 

effectiveness of BMPs for protecting 

aquatic species and their habitats relies 

on aquatic macroinvertebrate 

assessments, mostly of aquatic insects. 

While they are a common rapid field 

assessment method for monitoring or 

measuring water quality, current 

scientific information does not support 

the assumption made by several 

commenters that presence or recovery of 

insects is a proxy for suitable habitat 

recovery after disturbance (i.e., a 

sedimentation event) for aquatic 

salamanders like the Neuse River 

Waterdog, or a proxy for recolonization 

of waterdogs after such a disturbance. 

While reliance on effects to aquatic 

insect communities is a useful rapid 

assessment tool for water quality, there 

is a gap in the best available science 

about how that resilience relates to 

comparatively long-lived vertebrates, 

such as salamanders (e.g., Neuse River 

waterdog). Some research comparing 

how macroinvertebrate assessments 

relate to those of other taxa (e.g., 

amphibians, fishes, or zooplankton) 

indicates that they do not correspond 

well in evaluations of watershed land 

use or anthropogenic effects on water 

quality and water resources (e.g., 

Brazner et al. 2007, pp. 625–627; 

Kovalenko et al. 2019, entire; Herlihy et 

al. 2020, entire). Further, some studies 

recommend using assessments from 

multiple taxa to better evaluate the 

response of biological integrity in 

streams to anthropogenic activities 

(Herlihy et al. 2020, p. 10; Hughes et al. 

2000, pp. 437–440). Since aquatic 

amphibians are long-lived and exhibit a 

high degree of site fidelity, these taxa 

may be a more reliable indicator of 

stream condition than 

macroinvertebrates or fishes (Welsh and 

Ollivier 1998, pp. 1128–1129). The risks 

of water quality impacts to many taxa 

highlighted the utility of aquatic insect 

assessments for evaluating forestry 

BMPs, along with the need for research 

on forestry BMP effectiveness for the 

protection of taxa other than aquatic 

insects (Warrington et al. 2017, entire). 

Most aquatic insects are not 

considered rare species, and 

immigration by aquatic insects back into 

an affected stream reach may be 

facilitated by downstream drift or other 

mechanisms, including the adult 

winged flight stage, which allows 

immigration from other nearby 

waterbodies or from downstream 

reaches. The Neuse River waterdog is a 

rare, obligate aquatic salamander with 

different ecological requirements and a 

decades-long lifespan, compared to the 

shorter lifespan and aquatic larval phase 

of macroinvertebrate insects typically 

emphasized in assessments (e.g., aquatic 

phases ranging less than 1 to 2 years for 

many mayflies (Ephemeroptera; Voshell 

2002, p. 270); 1 to 2 years for many 

stoneflies (Plecoptera; Voshell 2002, p. 

310); less than 1 to 2 years for most 

caddisflies (Trichoptera; Voshell 2002, 

p. 375)). Extirpation of the Neuse River 

waterdog from a stream reach after an 

impact to the population (e.g., a 

sedimentation event that kills eggs or 

renders leaf packs unsuitable as foraging 

habitat) would have lasting 

consequences, and recolonization can 

be hampered by factors that are less 

problematic for non-rare aquatic insect 

species, such as instream barriers to 

migration, distance to the next 


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population, permanent or long-term 

alteration of streambed habitat that 

reduces its suitability for supporting the 

species (e.g., filling of habitat crevices 

used for nesting and home range retreats 

with fine sediments), and a much longer 

generation time than most insects 

(approximately 6 years; Service 2021b, 

p.7). 

(24) Comment: Some commenters 

stated that the Service did not provide 

evidence that the Neuse River waterdog 

is a sensitive species, and at least one 

commenter stated that failure to 

describe its sensitivity or similarity to 

trout sensitivity is arbitrary and 

capricious. 

Our Response: As discussed above, 

the Act requires that we make 

determinations solely on the basis of the 

best available scientific and commercial 

data available (16 U.S.C. 1533(b)(1)(A)). 

In making these determinations, we 

consider the ecological requirements of 

the species and how they are affected by 

the various factors. We included several 

details related to the ecological 

requirements of the Neuse River 

waterdog (e.g., flow, dissolved oxygen), 

referenced the SSA report, and included 

a summary of risk factors to the species 

in the proposed rule published on May 

22, 2019 (84 FR 23644). We further 

provided information in the document 

published on July 30, 2020 (85 FR 

45839), including statements on the 

effects of sedimentation (e.g., ‘‘Highly 

turbid, silted stream water can clog the 

external gills of waterdogs, and can also 

decrease the stream’s insect population, 

an important source of food (Service 

2021b, p. 8)’’ (85 FR 45839, July 30, 

2020, p. 85 FR 45843)). The commenters 

may not have realized that the July 30, 

2020, document presenting revisions to 

the proposed rule was not a complete 

reproposal; it presented only the 

substantive proposed revisions to the 

May 22, 2019, proposed rule. However, 

the concerns of the commenters have 

been carefully considered and 

addressed by removing references to 

trout and revising the final rule and SSA 

report to include more detailed 

information about the Neuse River 

waterdog, its habitat requirements, and 

sensitivity to threats, particularly 

sedimentation, using the best available 

scientific information about this species 

and relevant information from related 

species (i.e., gilled, aquatic 

salamanders). These revisions provide 

evidence and justification that the 

Neuse River waterdog is a sensitive 

species in need of protection from risk 

factors that threaten survival, 

persistence, and habitat. 

(25) Comment: A few commenters 

highlighted proposed or final rules for 

other aquatic species that they say 

indicate a Service precedent for 

accepting State-approved forestry BMPs 

as sufficient for protection of a species 

(i.e., they appear as an exception to the 

take prohibition) in a 4(d) rule. They 

indicated this precedent should apply to 

the 4(d) rule for Neuse River waterdog. 

Two related comments expressed 

concern that this rule would set a 

precedent not founded in the best 

available scientific information, if 

finalized with forest management 

requirements in the 4(d) exceptions that 

exceed State-recommended BMPs for 

the areas in which the Neuse River 

waterdog occurs. 

Our Response: First, 4(d) rules for 

threatened species are intended to 

establish species-specific regulations to 

provide for the conservation of a 

threatened species, and may incentivize 

beneficial actions for the species and 

reduce the regulatory burden on forms 

of take that are compatible with the 

conservation of the species. The 4(d) 

rules provide protection necessary and 

advisable to conserve the Neuse River 

waterdog by outlining prohibitions for 

the protection of the species, and if 

appropriate, any exceptions from the 

prohibitions. The species-specific 

nature of the rules indicates they do not 

set a precedent for other species. It may 

be practical to consider implications of 

how 4(d) rules are implemented for 

species that have overlapping 

geographic ranges and habitat needs, but 

we do not agree with the premise that 

any 4(d) rule sets a precedent for 

another species. Second, several of the 

comments referenced language that was 

not provided in the context of 

discussions for threatened species and a 

4(d) rule and is irrelevant in this 

context. For example, commenters 

referenced language that refers to 

Alabama’s forestry BMPs in the 

Summary of Factors Affecting the 

Species discussion in the final rule 

listing the Black Warrior waterdog 

(Necturus alabamensis) as endangered 

(83 FR 257, January 3, 2018, see p. 83 

FR 263). Other comments we received 

referred to language for critical habitat 

designation—not for species listing and 

4(d) rules—that listed BMPs among 

activities that can ameliorate threats to 

critical habitat. Comments also 

referenced the pearl darter (Percina 

aurora), a species listed as threatened in 

2017 when the blanket 4(d) rule 

applied, extending all endangered 

species protections to threatened 

species; that listing rule (82 FR 43885; 

September 20, 2017) included 

silviculture with BMPs among actions 

unlikely to result in a violation of the 

Act’s section 9, and it also listed poor 

silviculture among the factors affecting 

the species. Finally, some comments 

referenced the trispot darter 

(Etheostoma trisella), which is a 

threatened species with a speciesspecific 4(d) rule that includes an 

exception to the incidental take 

prohibitions for take associated with 

silviculture. The final 4(d) rule for the 

trispot darter (85 FR 61614; September 

30, 2020) includes an exception for 

incidental take resulting from 

silviculture practices and forest 

management activities. Conditions of 

this exception include requirements for 

implementing State BMPs for SMZs, 

stream crossings, and forest roads, 

among others; removal of logging debris 

from channels; and a temporal window 

that only allows for the exception 

outside of that species’ spawning season 

(i.e., the exception only applies for a 

portion of the year). Although the 

trispot darter final 4(d) rule is the most 

relevant among the commenters’ 

examples (i.e., a threatened species with 

a 4(d) rule exception for silviculture), 

the Service is required to make the 

listing determination for the Neuse 

River waterdog based on the best 

available science and develop a speciesspecific 4(d) rule based on what is 

necessary and advisable to provide for 

the conservation this particular species. 

The Service’s offices operate within 

discrete geographic regions, in part, to 

facilitate partnerships with State and 

other Federal agencies, Tribal 

communities, industry, and other 

nongovernmental organizations in their 

work area; through these partnerships, 

we are well poised to consider existing 

local environmental rules, local 

environmental conditions, and other 

factors, and to tailor the management 

needs of species. Prohibitions and 

exceptions for a threatened species 

outlined in its 4(d) rule are specific to 

the considerations for that particular 

species. 

The species-specific nature of 4(d) 

rules is inherently resistant to precedent 

setting, because the Service must 

consider the needs of the species being 

listed as threatened and issue 

regulations deemed necessary and 

advisable to provide for the 

conservation of that species. The 

proposed 4(d) rule for the Neuse River 

waterdog did not prescribe management 

restrictions; rather, it outlined 

prohibitions (e.g., take) to ensure the 

species and its habitat are not adversely 

affected, and exceptions to those 

prohibitions for incidental take resulting 

from activities that are not expected to 

adversely affect the species, and may 


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provide conservation benefits. The 4(d) 

exceptions provide specific information 

on the conditions required for being 

excepted from incidental take; they do 

not prohibit other forms of silvicultural 

management. Those activities not falling 

within the stated exceptions simply 

would require consultation with the 

Service under section 7, or a 

conservation agreement under section 

10, of the Act. The 4(d) rule’s 

exceptions, including the conditions 

necessary to meet those exceptions, are 

intended to provide some relief from 

regulatory burden, while avoiding 

adverse impacts to the species and 

adverse modification of the species’ 

habitat. 

(26) Comment: Several commenters 

requested that the Service revise the 

proposed 4(d) rule to remove language 

referring to BMPs we find necessary for 

the conservation of the Neuse River 

waterdog and to only reference Stateapproved BMPs without addition or 

modification. 

Our Response: The Service’s 

regulations typically do not refer to nonFederal rules, regulations, or guidance 

because doing so would result in an 

‘‘incorporation by reference,’’ which 

means that the referenced non-Federal 

document would be considered a de 

facto Federal regulation, and each time 

that non-Federal document is updated 

or revised, we would have to go through 

rulemaking to update our regulations. 

Regulatory references are typically 

restricted to existing conservation 

regulatory requirements for species 

under another Federal statute or 

international agreement (e.g., Marine 

Mammal Protection Act (MMPA; 16 

U.S.C. 1361 et seq.); Convention on the 

International Trade in Endangered 

Species of Wild Fauna and Flora 

(CITES; 27 U.S.T. 1087)). Stateapproved BMPs for forestry are not 

species conservation regulatory 

requirements. Furthermore, the North 

Carolina Forestry BMP manual does not 

represent a law or requirement; it is a 

set of recommended practices for 

achieving compliance with North 

Carolina’s FPGs, and the manual is 

subject to change. In fact, the NCFS has 

recently proposed revisions to the BMP 

manual (Gerow 2020, pers. comm.); this 

highlights the need to provide specific 

information for the conservation of a 

species in the text of the regulation. The 

Act guides the Service to establish a 

species-specific 4(d) rule for threatened 

species, including language stating the 

prohibitions and potential exceptions 

for the protection of the species. 

(27) Comment: During the reopened 

comment period (July 30–August 31, 

2020), several commenters submitted 

form letters using identical language 

stating that compliance with North 

Carolina’s BMPs should be sufficient to 

protect a landowner from prosecution 

for an illegal take of the Neuse River 

waterdog. 

Our Response: Illegal take of a species 

under protection of the Act is always 

prohibited. Take is only allowed by 

individuals who have appropriate 

permits or whose activities are covered 

by exceptions for incidental take; 50 

CFR 17.3 defines ‘‘incidental taking’’ as 

any taking otherwise prohibited, if such 

taking is incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity. The 4(d) rule 

for the Neuse River waterdog applies all 

of the Act’s section 9 take prohibitions, 

with certain exceptions from those 

prohibitions, including incidental take 

associated with four activity categories 

(species recovery by State agencies, 

channel restoration projects, bank 

stabilization projects, and silvicultural 

practices and forest management 

activities). To meet the 4(d) rule 

exception, maximum and proper 

implementation of State-approved BMPs 

is required and will ensure the excepted 

activity will avoid any take 

implications. However, we emphasize 

that illegal take (i.e., activities not 

covered by an exception or by 

consultation with the Service) is 

prohibited. 

(28) Comment: During the reopened 

comment period (July 30–August 31, 

2020), two commenters, including the 

NCFS and VDOF, offered alternative 

language for the entirety of the 

silvicultural component of the proposed 

4(d) rule. They noted that this 

alternative language was drafted with 

the intent of applicability in targeted 

watersheds of the eastern Piedmont and 

Upper Coastal Plain regions of North 

Carolina. The alternative language states 

an exception to the take prohibitions 

for: Forestry-related activities, including 

silvicultural practices, forest 

management work, and fire control 

tactics, that achieve all of the following: 

(1) Establish a streamside management 

zone alongside the margins of each 

occupied waterway; (2) restrain visible 

sedimentation caused by the forestryrelated activity from entering the 

occupied waterway; (3) maintain 

groundcover within the streamside 

management zone of the occupied 

waterway, and promptly re-establish 

groundcover if disturbed; (4) limit 

installation of new vehicle or equipment 

crossings of the occupied waterway to 

only where necessary for the forestryrelated activity. Such crossings must 

have erosion and sedimentation control 

measures installed to divert surface 

runoff away and restrain visible 

sediment from entering the waterway, 

allow for movement of aquatic 

organisms within the waterway, and 

have groundcover applied and 

maintained through completion of the 

forestry-related activity; (5) prohibit the 

use of tracked or wheeled vehicles for 

reforestation site preparation within the 

streamside management zone of the 

occupied waterway; (6) prohibit locating 

log decks, skid trails, new roads, and 

portable mill sites in the streamside 

management zone of the occupied 

waterway; (7) prohibit obstruction and 

impediment of the flow of water, caused 

by direct deposition of debris or soil by 

the forestry-related activity, within the 

occupied waterway; (8) maintain shade 

over the occupied waterway similar to 

that observed prior to the forestryrelated activity; and (9) prohibit 

discharge of any solid waste, petroleum, 

pesticide, fertilizer, or other chemical 

into the occupied waterway. 

Our Response: The Service agrees 

with the comment and has revised the 

4(d) rule language to reflect these 

suggested changes for the forestry 

exception. We recognize forestry 

management that implements Stateapproved BMPs protects water quality, 

and we realize that, in order to meet 

specific goals, flexibility is needed with 

regard to which BMPs are used during 

management. This final 4(d) rule 

provides practitioners the flexibility to 

choose which BMPs to use in their 

forestry activities while providing for 

the conservation of the species. We 

emphasize here that we deemed those 

revisions necessary because of concerns 

about confusion and challenging 

implementation related to multiple sets 

of forestry-related rules and guidelines 

already in place within the geographic 

region of Neuse River waterdog. As 

revised, this exception to incidental take 

prohibition, when properly 

implemented, will promote forestry 

management activities while also 

providing for the conservation the 

Neuse River waterdog. 

(29) Comment: One commenter 

recommended that the Service remove 

references to silviculture being a 

potential source of pollution in the 

description of critical habitat units, 

indicating that the forestry sector in 

general believes that, although 

statements about silvicultural runoff as 

a source of pollution may have had 

some credence a generation or more ago, 

the advent of BMPs, their proven 

effectiveness, and their high 

implementation rates call for the 

elimination of these statements, and 

those similar to it, in a modern 4(d) rule. 


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Our Response: The Service 

acknowledges that there are multiple 

sources of sedimentation and other 

pollutants; we have removed the 

statements about silvicultural runoff as 

a source of pollution and replaced it 

with language about management 

activities that will benefit habitat for the 

species in the description of critical 

habitat units. In addition, we agree that 

the best available science indicates that 

proper implementation of forestry BMPs 

reduces negative effects on water quality 

outcomes compared to historical 

silvicultural practices or those that do 

not apply or properly implement BMPs. 

Although BMPs generally are 

implemented at high rates, they are not 

universally applied or always properly 

implemented, and forest management 

activities can still contribute to 

sediment pollution in a watershed. As 

noted in our response to (22) Comment, 

above, the most recent assessment of 

BMP implementation by the NCFS 

reported that the majority of risks to 

water quality identified during the 

assessment were associated with forest 

managers’ failure to use or properly 

apply BMPs related to SMZs, stream 

crossings, and post-harvest restoration 

(Coats 2017, pp. 8–34). Moreover, as 

noted in our response to (23) Comment, 

above, metrics for BMP effectiveness are 

often associated with responses of 

macroinvertebrate insects; while such 

metrics are useful, there is no evidence 

to support that insect metrics capture 

the responses of benthic vertebrates, 

such as the Neuse River waterdog, to the 

effects of sedimentation on their habitat. 

One study examining the effects of 

silvicultural practices on salamanders 

reported that larval salamander 

abundance was negatively associated 

with stream embeddedness, as a result 

of sedimentation, at the reach scale, and 

overall, larval salamander abundance 

decreased with increasing harvested 

timber volume and increased with time 

after harvests (Moseley et al. 2008, pp. 

303–305). 

I. Final Listing Determinations 

Background 

Carolina Madtom 

A thorough review of the taxonomy, 

life history, and ecology of the Carolina 

madtom is presented in the SSA report 

(Service 2021a, pp. 5–8). 

The Carolina madtom (Noturus 

furiosus) is a moderate-sized catfish 

with a short, chunky body and a distinct 

color pattern of three dark saddles and 

a wide black stripe along its side. 

Furiosus means ‘‘mad’’ or ‘‘raging,’’ as 

the Carolina madtom is the most 

strongly armed of the North American 

catfishes with stinging spines 

containing a potent poison in their 

pectoral fins. They are found in medium 

to large flowing streams of moderate 

gradient in both the Piedmont and 

Coastal Plain physiographic regions in 

the Neuse and Tar River basins. Suitable 

instream habitats are described as 

riffles, runs, and pools with current, and 

during the warm months the madtoms 

are found in or near swift current at 

depths of 1.0 to 3.0 feet (0.3 to 0.9 

meters). Stream bottom substrate 

composition is important for benthic 

Carolina madtoms; leaf litter, sand, 

gravel, and small cobble are all common 

substrates associated with the species, 

although it is most often found over 

sand mixed with pea-sized gravel and 

leaf litter. During the breeding season, 

Carolina madtoms shift to areas of 

moderate to slow flow with abundant 

cover used for nesting. 

The nesting season extends from 

about mid-May to late July. Nest sites 

are often found under or in relic 

freshwater mussel shells, under large 

pieces of water-logged tree bark, or in 

discarded beverage bottles and cans 

partially buried on the stream bottom. 

The female produces about 80 to 300 

eggs, and the male guards the nest until 

the eggs hatch. Clutch sizes average 152 

larvae, and life expectancy for these fish 

is at least 4 years. 

The Carolina madtom is a bottomdwelling insectivore that feeds 

primarily during the night, with peaks 

at dawn and dusk. More than 95 percent 

of the food organisms in the Carolina 

madtom stomachs were larval midges, 

mayflies, caddisflies, dragonflies, and 

beetle larvae (Burr et al. 1989, p. 78). 

Neuse River Waterdog 

A thorough review of the taxonomy, 

life history, and ecology of the Neuse 

River waterdog is presented in the SSA 

report (Service 2021b, pp. 5–10). 

The Neuse River waterdog (Necturus 

lewisi) is a permanently aquatic 

salamander species endemic to the 

Neuse and Tar-Pamlico River drainages 

in North Carolina. The species occurs in 

riffles, runs, and pools in medium to 

large streams and rivers with moderate 

gradient in both the Piedmont and 

Coastal Plain physiographic regions. 

Neuse River waterdogs are from an 

ancient lineage of permanently aquatic 

salamanders in the genus Necturus, and 

one of three species of Necturus in 

North Carolina. Similar to the 

endangered Black Warrior waterdog 

(Necturus alabamensis) and several 

other permanently aquatic salamanders 

with similar life history and ecology, 

stream bottom substrate composition is 

also important for Neuse River 

waterdogs: Gravel, cobble, or coarse 

sand substrates, with ample cover, that 

are free of fine sediments are commonly 

associated with the species. 

Neuse River waterdogs have a 

reddish-brown skin with black spots, 

reaching up to 9 inches (in) in length as 

adults. Their underside is brownishgrey, and they have external bushy dark 

red gills. They eat large aquatic 

arthropods, aquatic and terrestrial 

invertebrates, and even some vertebrates 

like small fish. Like most waterdogs, 

they are opportunistic feeders who lie in 

wait for a small organism to swim or 

float by. All prey are ingested whole, 

and larger items are sometimes 

regurgitated and then re-swallowed. 

Neuse River waterdogs are found in 

streams ranging from larger headwater 

streams in the Piedmont to coastal 

streams up to the point of saltwater 

intrusion. None have been found in 

lakes or ponds. They are usually found 

in streams wider than 15 meters (m), 

deeper than 100 centimeters (cm), and 

with a main channel flow rate greater 

than 10 cm per second. Further, they 

need clean, flowing water characterized 

by high dissolved oxygen 

concentrations. The preferred habitats 

vary with the season, temperature, 

dissolved oxygen content, flow rate, and 

precipitation; however, the waterdogs 

maintain home retreat areas under 

rocks, in burrows, or under substantial 

cover in backwater or eddy areas. As 

with other permanently aquatic 

salamanders, when interstitial spaces 

between substrates become compacted 

or filled with fine sediment, the amount 

of available foraging habitat and 

protective cover for salamanders is 

reduced, resulting in population 

declines (83 FR 257; January 3, 2018). 

The longevity of Neuse River 

waterdogs is not known; however, their 

close relative N. maculosus may live for 

30 or more years. Like many long-lived 

animals, breeding is delayed until a 

minimum body size is reached, and they 

tend to grow slowly. Generation time for 

Neuse River waterdogs is 10 to 15 years. 

They breed once per year, with mating 

in the fall or winter and spawning in the 

spring. Females lay a clutch of about 

25–90 eggs, typically under large rocks 

with sand and gravel beneath them, or 

under similar cover (e.g., logs, holes in 

banks) in coastal rivers where rocky 

habitat is limited, and then guard the 

rudimentary nest. 

Regulatory and Analytical Framework 

Regulatory Framework 

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

and its implementing regulations (50 

CFR part 424) set forth the procedures 


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for determining whether a species is an 

‘‘endangered species’’ or a ‘‘threatened 

species.’’ The Act defines an 

‘‘endangered species’’ as a species that 

is in danger of extinction throughout all 

or a significant portion of its range, and 

a ‘‘threatened species’’ as a species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether any species is an 

‘‘endangered species’’ or a ‘‘threatened 

species’’ because of any of the following 

factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Services can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Our proposed rule described 

‘‘foreseeable future’’ as the extent to 

which we can reasonably rely on 

predictions about the future in making 

determinations about the future 

conservation status of the species. The 

Service since codified its understanding 

of foreseeable future in 50 CFR 

424.11(d) (84 FR 45020). In those 

regulations, we explain the term 

‘‘foreseeable future’’ extends only so far 

into the future as the Service can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. The Service 

will describe the foreseeable future on a 

case-by-case basis, using the best 

available data and taking into account 

considerations such as the species’ lifehistory characteristics, threat-projection 

timeframes, and environmental 

variability. The Service need not 

identify the foreseeable future in terms 

of a specific period of time. These 

regulations did not significantly modify 

the Service’s interpretation; rather they 

codified a framework that sets forth how 

the Service will determine what 

constitutes the foreseeable future based 

on our long-standing practice. 

Accordingly, though regulations do not 

apply to the final rule for the Carolina 

madtom and Neuse River waterdog 

because they were proposed prior to 

their effective date, they do not change 

the Service’s assessment of foreseeable 

future for the Carolina madtom and 

Neuse River waterdog as contained in 

our proposed rule and in this final rule. 

Analytical Framework 

The SSA reports document the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of each species, 

including an assessment of the potential 

threats to each species. The SSA report 

does not represent a decision by the 

Service on whether the species should 

be proposed for listing as an endangered 

or threatened species under the Act. It 

does, however, provide the scientific 

basis that informs our regulatory 

decisions, which involve the further 

application of standards within the Act 

and its implementing regulations and 

policies. The following is a summary of 

the key results and conclusions from the 

SSA reports; the full SSA reports can be 

found at Docket No. FWS–R4–ES–2018– 

0092 and on http://

www.regulations.gov. 

To assess viability of Carolina 

madtom and Neuse River waterdog, we 

used the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

2000, pp. 306–310). Briefly, resiliency 

supports the ability of the species to 

withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy supports the ability of the 

species to withstand catastrophic events 

(for example, droughts, large pollution 

events), and representation supports the 

ability of the species to adapt over time 

to long-term changes in the environment 

(for example, climate changes). In 

general, the more resilient and 

redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 


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described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA process involved making 

predictions about the species’ responses 

to positive and negative environmental 

and anthropogenic influences. 

Throughout all of these stages, we used 

the best available information to 

characterize viability as the ability of a 

species to sustain populations in the 

wild over time. We use this information 

to inform our regulatory decision. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of each species and 

its resources, and the threats that 

influence each species’ current and 

future condition, in order to assess the 

species’ overall viability and the risks to 

that viability. 

Carolina Madtom 

To evaluate the current and future 

viability of the Carolina madtom, we 

considered a range of conditions to 

allow us to assess the species’ 

resiliency, representation, and 

redundancy. We assessed resiliency for 

the Carolina madtom using population 

factors (Management Unit (MU) 

occupancy over time, approximate 

abundance, and recruitment) and 

habitat elements (water quality, water 

quantity, habitat connectivity, and 

instream substrate). For the purposes of 

this assessment, populations were 

delineated using the same three river 

basins that Carolina madtoms have 

historically occupied, namely the Tar, 

Neuse, and Trent River basins. 

Populations were further delineated 

using MUs, defined as one or more 

hydrologic unit code (HUC) 10 

watersheds that species experts 

identified as the most appropriate unit 

for assessing population-level 

resiliency. To assess resiliency, we 

analyzed population factors as well as 

habitat elements that were determined 

in our analysis of the species’ needs to 

have the most influence on the species. 

We then assessed the overall condition 

of each population. Overall population 

condition rankings were determined by 

combining the two population factors 

and four habitat elements. For a more 

detailed explanation of the condition 

categories, see the SSA report (Service 

2021a, pp. 15–19). 

Metrics that speak to a species’ 

adaptive potential, such as genetic and 

ecological variability, can be used to 

assess representation. Representation for 

the Carolina madtom can be described 

in terms of ecological variation seen in 

river basin variability (Tar, Trent, and 

Neuse River basins) and physiographic 

variability (eastern Piedmont and 

Coastal Plain). We assessed Carolina 

madtom redundancy by first evaluating 

occupancy within each of the 

hydrologic units that constitute MUs, 

and then we evaluated occupancy at the 

MU, and ultimately the population 

level. 

Current Condition of Carolina Madtom 

The historical range of the Carolina 

madtom included streams and rivers in 

the Tar-Pamlico, Neuse, and Trent 

basins, with documented historical 

distribution in 31 HUC10s in 11 MUs 

across the three populations (see Table 

1, below). The results of surveys 

conducted from 2011 to 2018 suggest 

that the currently occupied range of the 

Carolina madtom includes four MUs 

from two populations, corresponding to 

the Tar and Neuse River basins; 

however, only one population (Tar) has 

multiple documented occurrences 

within the past 5 years. The species has 

been extirpated from the southern 

portion of its range, including a large 

portion of the Neuse River basin and the 

entire Trent River basin. The Carolina 

madtom currently occupies 9 of the 31 

historically occupied HUC10s (with 

‘‘currently’’ defined as the observation 

of at least one specimen from 2011 to 

2018), 7 of which are in the Tar River 

basin and 2 in the Neuse River basin. At 

the population level, the overall current 

condition (= resiliency) was estimated 

to be moderate for the Tar population, 

very low for the Neuse population, and 

likely extirpated for the Trent 

population. 

TABLE 1—POPULATION AND MANAGEMENT UNIT (MU) NAMING FOR

CAROLINA MADTOM

Population/management unit 

Tar: 

Upper Tar. 

Middle Tar. 

Lower Tar. 

Fishing Creek Subbasin. 

Sandy-Swift. 

Neuse: 

Upper Neuse. 

Middle Neuse. 

Lower Neuse. 

Little River. 

Contentnea Creek. 

TABLE 1—POPULATION AND MANAGEMENT UNIT (MU) NAMING FOR

CAROLINA MADTOM—Continued 

Population/management unit 

Trent: 

Trent. 

We estimated that the Carolina 

madtom currently has low adaptive 

potential due to limited representation 

in two river basins and two 

physiographic regions. The species 

retains 33 percent of its known river 

basin variability, considering greatly 

reduced variability observed in the 

Neuse River population. In addition, 

compared to historical occupancy, the 

species currently retains very limited 

physiographic variability in the Coastal 

Plain (14 percent) and moderate 

variability in the Piedmont (56 percent). 

The range of the Carolina madtom has 

always been very narrow, limited to the 

Tar, Neuse, and Trent River drainages. 

Within the identified representation 

areas, the species retains redundancy 

within the Tar River population (three 

MUs currently extant); however, it has 

limited redundancy (two MUs extant) in 

the Neuse River population and no 

redundancy (extirpated) in the Trent 

River population. Overall, the species 

has lost 55 percent of its redundancy 

across its narrow, endemic range. 

Neuse River Waterdog 

To evaluate the current and future 

viability of the Neuse River waterdog, 

we assessed a similar range of 

conditions as described above for 

Carolina madtom to allow us to consider 

the species’ resiliency, representation, 

and redundancy. As with the madtom, 

populations were delineated using the 

three river basins that Neuse River 

waterdogs have historically occupied 

(i.e., Tar-Pamlico, Neuse, and Trent 

River basins). ‘‘Tar-Pamlico’’ refers to 

the lower portion of the Tar River basin, 

which includes the Pamlico River. 

Because the river basin level is at a very 

coarse scale, populations were further 

delineated using MUs. MUs were 

defined as one or more HUC10 

watersheds that species experts 

identified as most appropriate for 

assessing population-level resiliency. 

Resiliency is characterized, and overall 

population condition rankings and 

habitat condition rankings were 

determined, similarly as for the 

madtom. 

Representation for the Neuse River 

waterdog can be described in terms of 

the size and range of the river systems 

it inhabits (medium streams to large 

rivers in three river basins), and 


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physiographic variability (Piedmont and 

Coastal Plain). Redundancy for the 

Neuse River waterdog is defined as 

multiple highly resilient populations 

(inclusive of multiple, resilient MUs) 

distributed throughout the species’ 

historical range. That is, highly resilient 

populations, coupled with a relatively 

broad distribution, have a positive 

relationship to species-level 

redundancy. 

Current Condition of Neuse River 

Waterdog 

The historical range of the Neuse 

River waterdog included third and 

fourth order sized streams and rivers in 

the Tar-Pamlico, Neuse, and Trent 

basins, with documented historical 

distribution in 40 HUC10s in nine MUs 

across the three populations (see Table 

2, below). Currently, the Neuse River 

waterdog is extant in all nine identified 

MUs; however, within those MUs, it is 

presumed extirpated from 35 percent 

(14 out of 40) of the historically 

occupied HUC10s, and another 25 

percent of the streams are in low or very 

low condition. Of the nine MUs, two (22 

percent) are estimated to have high 

resiliency, three (33 percent) moderate 

resiliency, and four (45 percent) low 

resiliency. At the population level, one 

of three populations (Tar-Pamlico) is 

estimated to have moderate resiliency, 

and two (Neuse and Trent) are estimated 

to have low resiliency. 

TABLE 2—POPULATION AND MANAGEMENT UNIT (MU) NAMING FOR

NEUSE RIVER WATERDOG

Population/management unit 

Tar: 

Upper Tar. 

Middle Tar. 

Lower Tar. 

Sandy-Swift. 

Fishing Creek Subbasin. 

Neuse: 

Upper Neuse. 

Middle Neuse. 

Lower Neuse. 

Trent: 

Trent. 

We estimated that the Neuse River 

waterdog currently has moderate 

adaptive potential, primarily due to 

ecological representation in three river 

basins and two physiographic regions. 

The species retains nearly all of its 

known river basin variability; however, 

the variability within the basins is 

reduced compared to historical 

distribution. In addition, compared to 

historical occupancy, the species 

currently retains moderate 

physiographic variability in the Coastal 

Plain (87 percent) and in the Piedmont 

(67 percent). However, the Piedmont 

has experienced significant declines in 

occupancy, with nearly half of the MUs 

losing species occurrences. Of the 16 

historically occupied Piedmont 

HUC10s, 7 are no longer occupied, and 

9 have experienced loss. 

Like the madtom, the range of the 

Neuse River waterdog has always been 

very narrow, limited to the Tar-Pamlico, 

Trent, and Neuse River drainages. 

Within the identified representation 

areas (i.e., river basins), the species 

retains redundancy in terms of occupied 

HUC10s within the Tar-Pamlico River 

population (82 percent) and the Neuse 

River population (70 percent), but 67 

percent of redundancy has been lost in 

the Trent River population. Overall, the 

species has lost 27 percent (11 out of 40 

historically occupied HUC10s) of its 

redundancy across its narrow, endemic 

range. 

Factors Influencing Viability of Neuse 

River Waterdog and Carolina Madtom 

Several natural and anthropogenic 

factors may impact the status of species 

within aquatic systems. Generally, these 

factors can be categorized as either 

environmental stressors (e.g., 

development, agriculture practices, or 

forest management) or systematic 

changes (e.g., climate change, invasive 

species, dams or other barriers). The 

largest threats to the future viability of 

the Carolina madtom and Neuse River 

waterdog involve habitat degradation 

from stressors influencing the four 

habitat elements: Water quality, water 

quantity, instream habitat, and habitat 

connectivity. All of these factors are 

exacerbated by the effects of climate 

change. A brief summary of these 

primary stressors is presented below; for 

a full description of these stressors, refer 

to chapter 4 of the SSA report for each 

species. 

Development and Pollution 

Development refers to urbanization of 

the landscape, and the effects of 

urbanization may include alterations to 

water quality, water quantity, and 

habitat (both instream and streamside) 

(Service 2021ab, p. 40). Urbanization 

increases the amount of impervious 

surfaces, such as paved roads, parking 

lots, roofs, and even highly compacted 

soils like sports fields. Impervious 

surfaces prevent the natural soaking of 

rainwater into the ground and slow 

seepage into streams. Instead, the 

rainwater accumulates and flows 

rapidly into storm drains, which drain 

as runoff to local streams. This degrades 

stream habitat in three ways: Water 

quantity (high flow during storms), 

water quality (sediment and pollutants 

washing into streams), and increased 

water temperatures due to the surfaces 

heating the water. Sedimentation, 

including short-term storm events, has 

been shown to reduce survival 

(Honeycutt et al. 2016, pp. 766–767), 

limit juvenile abundance (Bendik and 

Dries 2018, pp. 5916–5920), reduce 

body size (Gray et al. 2004, p. 719), or 

result in a significant decline in aquatic 

salamander density in streams (Welsh 

and Ollivier 1998, pp. 1123–1128; 

Welsh et al. 2019, pp. 7–10). 

Concentrations of contaminants, 

including nitrogen, phosphorus, salts, 

insecticides, polycyclic aromatic 

hydrocarbons, and personal care 

products, increase with urban 

development (Giddings et al. 2009, p. 2; 

Bringolf et al. 2010, p. 1,311). Water 

infrastructure development, including 

water supply, reclamation, and 

wastewater treatment, results in several 

pollution point discharges to streams. 

Increasing urbanization results in 

more road development. By its nature, 

road development increases impervious 

surfaces, as well as land clearing and 

habitat fragmentation. Roads are 

generally associated with negative 

effects on the biotic integrity of aquatic 

ecosystems, including changes in 

surface water temperatures and patterns 

of runoff; sedimentation; and adding 

heavy metals (especially lead), salts, 

organics, ozone, and nutrients to stream 

systems (Trombulak and Frissell 2000, 

p. 18). These changes affect streamdwelling organisms such as the Carolina 

madtom and Neuse River waterdog by 

displacing them from once-preferred 

habitats, as well as increasing exposure 

and assimilation of pollutants that can 

result in growth defects, decreased 

immune response, and even death. In 

addition, a common impact of road 

development is improperly constructed 

culverts at stream crossings. These 

culverts act as barriers, either because 

stream flow through the culvert varies 

significantly from the rest of the stream 

or because the culvert ends up being 

perched, so that aquatic organisms such 

as these species cannot pass through 

them. 

Carolina madtoms and Neuse River 

waterdogs prefer clean water with 

permanent flow and are not tolerant of 

siltation and turbidity. Benthic 

vertebrates, such as the madtom and 

waterdog, have disproportionate rates of 

imperilment and extirpation due to 

pollution because stream bottoms are 

often the first habitats affected, 

particularly by sedimentation. 

Sedimentation increases embeddedness 

of stream substrates, making it more 

difficult for madtoms or salamanders to 


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burrow (Unger et al. 2020, pp. 121–122) 

and leaving them more exposed (e.g., to 

predation). Excess sedimentation 

influences nest site selection and 

reduces habitat availability (Guy et al. 

2004, pp. 80–82, 85) and is related to a 

reduction in current distribution of 

salamanders compared to historical 

occupancy of sites (Quinn et al. 2013, 

pp. 78, 81–82). Furthermore, the 

Carolina madtom is classified as an 

‘‘intolerant’’ species according to the 

North Carolina Division of Water 

Resources (NCDWR), meaning the 

species is most affected by 

environmental perturbations (NCDWR 

2013, p. 19). Fine sediments can 

influence the survival, distribution, and 

abundance of Neuse River waterdog by 

‘‘reduc[ing] the availability of food and 

cover, and hinder[ing] reproduction by 

smothering nests and eggs’’ (Braswell 

and Ashton 1985, p. 28). 

All three of the river basins within the 

range of the Carolina madtom and 

Neuse River waterdog are affected by 

development, from an average of 7 

percent in the Tar River basin to an 

average of 13 percent in the Neuse River 

basin (based on the 2011 National Land 

Cover Data). The Neuse River basin 

contains one-sixth of the entire State’s 

human population, indicating heavy 

development pressure on the watershed. 

The Middle Neuse MU contains 182 

impaired stream miles, 9 major 

discharges, 272 minor discharges, and 

nearly 4,000 road crossings, all affecting 

the quality of the habitat for both 

species. The Middle Neuse is also 31 

percent developed, with nearly 8 

percent impervious surface, which 

changes natural streamflow, reduces 

appropriate stream habitat, and 

decreases water quality throughout the 

MU. For complete data on all of the 

populations, refer to appendices A and 

D of the SSA reports. 

Agricultural Practices 

The main impacts to the Neuse River 

waterdog and Carolina madtom from 

agricultural practices occur from water 

pumping for irrigation and when best 

management practices (BMPs) for 

conservation are not followed, causing 

sedimentation, and nutrient and 

chemical pollution. Sedimentation can 

fill interstitial spaces of streambed 

substrates, altering habitat suitability of 

nesting and retreat sites for madtoms 

and waterdogs; it can coat leaf litter, 

diminishing or destroying waterdog 

foraging habitat; and it can smother and 

kill eggs. Sedimentation from 

agriculture has been linked to reduced 

body size in salamanders and other 

amphibians (Gray 2002, pp. 23–34, 48, 

105; Gray et al. 2004, pp. 719, 727). 

Fertilizers and animal manure, which 

are both rich in nitrogen and 

phosphorus, are the primary sources of 

nutrient pollution from agricultural 

sources. Excess nutrients impact water 

quality when it rains or when water and 

soil containing nitrogen and phosphorus 

wash into nearby waters or leach into 

the water table or groundwater. 

Confined animal feeding operations and 

feedlots can cause degradation of 

aquatic ecosystems and may cause 

direct effects to the species (e.g., death 

resulting from hypoxia), primarily 

because of manure management issues. 

Fertilized soils, manure, and livestock 

can be significant sources of nitrogenbased compounds like ammonia and 

nitrogen oxides. Ammonia can be 

harmful to aquatic life when 

concentrated in surface waters. For 

madtoms and waterdogs, excess 

ammonia can cause a number of 

problems, including alteration of 

metabolism, injury to gill tissue, and 

reduced growth rates. Extreme levels of 

ammonia can cause death. 

Excessive water withdrawal or water 

withdrawal done illegally (without the 

necessary permit, during dry times of 

year) may cause impacts to the amount 

of water available to downstream 

sensitive areas during low flow months, 

resulting in dewatering of channels and 

displacement of fish and permanently 

aquatic salamanders, leading in turn to 

potential desiccation and death. 

According to the 2011 National Land 

Cover Data, all of the watersheds within 

the range of the Carolina madtom and 

Neuse River waterdog are affected by 

agricultural land uses, most with 25 

percent or more of the watershed having 

been converted for agricultural use. 

Forest Management 

Silvicultural activities, when 

performed according to strict forest 

practices guidelines (FPGs) or BMPs, 

can retain adequate conditions for 

aquatic ecosystems; however, when 

FPGs/BMPs are not followed or if they 

fail, these practices can also contribute 

to the myriad of stressors facing aquatic 

systems in the Southeast, including 

North Carolina. Both small- and largescale clearing of forests have been 

shown to have a significant impact upon 

the physical, chemical, and biological 

characteristics of adjacent small streams 

(Allan 1995, pp. 324–327; Valente-Neto 

2015, p. 116). Clearcutting and harvests 

in riparian systems can eliminate shade 

provided by forest canopies, exposing 

streams to more sunlight and increasing 

the instream water temperature (Swift 

and Messer 1971, p. 111; Hewlett and 

Forston 1982, p. 983; GB Rishel 1982, p. 

112; Lynch et al. 1984, p. 161; Allan 

1995, p. 325; Keim and Shoenholtz 

1999, p. 197; Carroll et al. 2004, p. 275; 

B.D. Clinton 2011, p. 979; Caldwell et 

al. 2014, p. 3). The increase in stream 

temperature and light after deforestation 

alters the macroinvertebrate and other 

aquatic species richness and abundance 

composition in streams (Wenger 1999, 

p. 35; Caldwell et al. 2014, p. 3). As 

stated above, both the Neuse River 

waterdog and Carolina madtom are 

sensitive to changes in temperature, and 

sustained temperature increases will 

stress and possibly lead to mortality for 

these species. 

Forestry activities can include the 

construction of logging roads through 

the riparian zone, and this can directly 

degrade nearby stream environments. 

Roads can cause point-source pollution 

and sedimentation, as well as 

sedimentation traveling downstream 

into sensitive habitats. These effects 

lead to stress and mortality for both 

species, as discussed above under 

‘‘Development and Pollution,’’ and as 

reported in studies of forestry-related 

sedimentation effects on survival of 

aquatic vertebrates (Lowe et al. 2004, 

entire; Moseley et al. 2008, entire; 

Peterman & Semlitsch 2009, entire). 

While BMPs are presently widely 

adhered to, they were not always 

common practice, and implementation 

is not perfect. The most recent surveys 

of the Neuse and Tar-Pamlico River 

basins show that the average BMP 

implementation rate is approximately 

88 to 90 percent (Coats 2017, p. 38). 

Accordingly, while improper 

implementation is uncommon, failure to 

implement or inadequate 

implementation can have negative 

effects on sensitive aquatic species. 

Further, the most recent assessment of 

forestry BMPs in North Carolina 

reported that improperly implemented 

BMPs associated with streamside 

management zones and stream crossings 

were frequently associated with risks to 

water quality (Coats 2017, p. 9). 

Invasive Species 

There are many areas across North 

Carolina where invasive species have 

invaded aquatic communities; are 

competing with native species for food, 

light, or breeding and nesting areas; and 

are impacting biodiversity. The flathead 

catfish (Pylodictis olivaris) is an 

invasive species that most likely 

impacts Carolina madtom distribution 

and may also have an impact on Neuse 

River waterdog distribution. The 

flathead catfish is an apex predator, 

known to influence native fish 

populations, including predation on 

benthic fishes, including madtoms, and 


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it occurs in both the Neuse and TarPamlico River basins. It is not known 

whether this fish also preys on 

waterdogs, but it is speculated that 

Neuse River waterdog inactivity during 

warmer months is in part due to the 

avoidance of large, predatory fishes 

(Braswell 2005, p. 870). 

Hydrilla (Hydrilla verticillata), an 

invasive aquatic plant, alters stream 

habitat, decreases flows, contributes to 

sediment buildup in streams, and can 

serve as a vector for a neurotoxic 

cyanobacteria known to affect other 

vertebrates (e.g., fishes, turtles, 

waterbirds, and their predators). High 

sedimentation can cause suffocation, 

reduce stream flow necessary for 

madtom and waterdog survival, smother 

eggs, and degrade leaf pack foraging 

habitat by causing prey items to 

abandon them. Hydrilla occurs in 

several watersheds where both species 

occur and has been recently 

documented from the Neuse system and 

the Tar River. While there are no data 

to indicate that hydrilla currently has 

population-level effects on these two 

species, its spread is expected to 

increase in the future and control or 

eradication is difficult. 

Red swamp crayfish (Procambarus 

clarkii) is an invasive crayfish species 

native to the southern Mississippi River 

drainage in the Gulf Coastal Plain and 

Florida panhandle to Mexico. 

Establishment of nonnative populations 

in eastern North Carolina are likely from 

release from aquaculture or from the 

aquarium trade (Nagy et al. 2020, 

unpaginated). Red swamp crayfish are 

physical ecosystem engineers, 

constructing extensive burrows that can 

collapse stream banks and cause 

erosion. They are prolific opportunistic 

omnivores, and they not only 

outcompete native crayfish but also 

other native animals, including 

amphibians like Neuse River waterdog, 

by reducing their densities in their 

habitat. Recent surveys have found that 

when red swamp crayfish are present, 

Neuse River waterdogs are not 

(Braswell, Hall, and Humphries 2020, 

pers. comm.). 

Dams and Barriers 

Extinction of some North American 

freshwater fish can be traced to 

impoundment and inundation of riffle 

habitats in all major river basins of the 

central and eastern United States. 

Upstream of dams, the change from 

flowing to impounded waters, increased 

depths, increased buildup of sediments, 

decreased dissolved oxygen, and the 

drastic alteration in resident fish 

populations can threaten the survival of 

fish and aquatic salamanders and their 

overall reproductive success. 

Downstream of dams, fluctuations in 

flow regimes, minimal releases and 

scouring flows, seasonal dissolved 

oxygen depletion, reduced or increased 

water temperatures, and changes in fish 

assemblages can also threaten the 

survival and reproduction of many 

aquatic species. Dams have also been 

identified as causing genetic segregation 

or isolation in river systems—resident 

species can no longer move freely 

through different habitats and may 

become genetically isolated from other 

populations throughout the river. 

Improperly constructed culverts at 

stream crossings also can act as 

significant barriers and have some 

similar effects as dams on stream 

systems. Fluctuating flows through the 

culvert can vary significantly from the 

rest of the stream, preventing aquatic 

species passage and scouring 

downstream habitats. If a culvert ends 

up being perched above the stream bed, 

aquatic organisms cannot pass through 

it. All of the MUs containing Neuse 

River waterdogs and Carolina madtom 

populations have been impacted by 

dams, with as few as 11 dams in the 

Contentnea Creek MU to 287 dams in 

the Middle Neuse MU. 

Energy Production and Mining 

The Neuse River waterdog and its 

habitat face impacts from oil and gas 

production, coal power, hydropower, 

and the use of biofuels. Coal mined from 

other States is used for energy 

production in North Carolina. Damage 

to fish and wildlife from exposure to 

coal ash slurry ranges from 

physiological, developmental, and 

behavioral toxicity to major populationand community-level changes. 

Contamination of aquatic habitats by 

coal-combustion residue can result in 

the accumulation of metals and trace 

elements in larval amphibians, 

including arsenic, cadmium, chromium, 

copper, mercury, lead, selenium, and 

vanadium, potentially leading to 

developmental, behavioral, and 

physiological effects (Rowe et al. 2002, 

entire). As recently as October 2016, 

Neuse River waterdogs in the Neuse 

River were exposed to coal ash slurry 

when Hurricane Matthew caused 

inundation of coal ash storage ponds. 

Coal-fired power plants pump large 

volumes of water to produce electricity, 

and aquatic organisms such as larval 

waterdogs can be pulled in and killed 

unless measures are sufficient to keep 

organisms from being impacted. After 

water is used for electricity production, 

it is returned to surface waters, but the 

temperature can be considerably higher 

than the temperature of the stream, 

reducing the ability of the species to 

spawn. 

Hydropower as a domestic energy 

source is becoming more prevalent in 

North Carolina, including areas where 

the Neuse River waterdog occurs. Like 

other impoundments, streams and rivers 

impounded by hydropower dams are 

changed from lotic systems to lentic 

systems, fragmenting habitats and 

disrupting movements and migrations of 

fish and other aquatic organisms like the 

Neuse River waterdog. Downstream 

water quality can also suffer from low 

dissolved oxygen levels and altered 

temperatures. In addition, hydropower 

generation can significantly change flow 

regimes downstream of hydropower 

dams, and can affect other riverine 

processes, such as sediment transport, 

nutrient cycling, and woody debris 

transport. 

Potential impacts to both species from 

oil and gas extraction are numerous; 

they include water quality and water 

quantity impacts, riparian habitat 

fragmentation and conversion, increased 

sand mining (used in oil and gas 

extraction), and increased road and 

utility corridors. While oil and gas 

extraction currently does not, and likely 

will not, occur in the Tar River basin 

due to lack of subsurface shale deposits, 

impacts from shale gas extraction could 

occur in the Neuse River basin (Service 

2021b, p. 46). Future impacts from oil 

and gas exploration and production are 

certain, as North Carolina has recently 

begun to allow fracking operations to 

drill for natural gas Statewide. 

Climate Change 

Aquatic systems are encountering 

changes and shifts in seasonal patterns 

of precipitation and runoff as a result of 

climate change. While both of these 

species have evolved in habitats that 

experience seasonal fluctuations in 

discharge, global weather patterns (e.g., 

El Nin ̃ o or La Nin ̃ a) can have an impact 

on the normal regimes. Even during 

naturally occurring low flow events, 

amphibians and fish either become 

stressed because they exert significant 

energy to move to deeper waters or they 

may succumb to desiccation. Because 

low flows in late summer and early fall 

are stress-inducing, droughts during this 

time of year result in an increase in 

stress and, potentially, an increased rate 

of mortality. 

Droughts have impacted all river 

basins within the range of both species, 

from an ‘‘abnormally dry’’ ranking for 

North Carolina in 2001 on the Southeast 

Drought Monitor scale to the highest 

ranking of ‘‘exceptionally dry’’ for the 

entire range of both species in 2002 and 

2007. The 2015 drought data indicated 


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that the entire Southeast was under 

conditions ranging from ‘‘abnormally 

dry’’ to ‘‘moderate drought’’ or ‘‘severe 

drought.’’ These data are from the first 

week in September, which as noted 

above is a very sensitive time for 

drought to be affecting both species. 

Tributaries in the Neuse River basin had 

consecutive drought years in the period 

2005–2012, indicating sustained stress 

on the species over a long period of 

time. Amphibians and fish have limited 

refugia from disturbances such as 

droughts and floods, and they are 

completely dependent on specific water 

temperatures to complete their 

physiological requirements. Changes in 

water temperature lead to stress and 

increased mortality, and also increase 

the likelihood of extinction for both 

species. Increases in the frequency and 

strength of storm events, which are 

caused by climate change, alter stream 

habitat, either directly via 

channelization or clearing of riparian 

areas or indirectly via high streamflows 

that reshape the channel and cause 

sediment erosion. The large volumes 

and velocity of water, combined with 

the extra debris and sediment entering 

streams following a storm, stress, 

displace, or kill Neuse River waterdogs 

and Carolina madtoms. 

Synergistic Effects 

In addition to individually impacting 

the species, it is likely that several of the 

above summarized risk factors are acting 

synergistically or additively on both 

species. The combined impact of 

multiple stressors is likely more harmful 

than a single stressor acting alone. For 

instance, effects of sedimentation and 

predatory fishes on large aquatic 

salamanders have been found, in which 

larvae were more affected by predatory 

fishes and adults were more affected by 

sedimentation, suggesting that 

persistence of salamanders was 

especially threatened in streams with 

both stressors (Lowe et al. 2004, pp. 164, 

167–170). As an example, within 

Carolina madtom and Neuse River 

waterdog habitat, there are 182 miles of 

impaired streams in the Middle Neuse 

MU. They have low benthicmacroinvertebrate scores, low dissolved 

oxygen, and low pH, and they contain 

Escherichia coli (also known as E. coli). 

There are 9 major and 272 minor 

discharges within this MU, along with 

287 dams, almost 4,000 road crossings, 

and droughts recorded for 3 consecutive 

years in 2008–2010. If a small, but 

improperly installed, culvert at a road 

crossing prevents fish from moving up 

or downstream, the fish would not be 

able to escape to deeper areas of the 

stream during droughts. Similarly, a 

discharge into a stream has more impact 

on aquatic species if there are no 

precipitation events immediately 

following to help flush the system. 

These combinations of stressors on the 

sensitive aquatic species in this habitat 

likely impact both species more severely 

than any one factor alone. 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA reports, we have not only 

analyzed individual effects on the 

species, but we have also analyzed their 

potential cumulative effects. We 

incorporate the cumulative effects into 

our SSA analysis when we characterize 

the current and future condition of the 

species. Our assessment of the current 

and future conditions encompasses and 

incorporates the threats individually 

and cumulatively. Our current and 

future condition assessment is iterative 

because it accumulates and evaluates 

the effects of all the factors that may be 

influencing the species, including 

threats and conservation efforts. 

Because the SSA framework considers 

not just the presence of the factors, but 

to what degree they collectively 

influence risk to the entire species, our 

assessment integrates the cumulative 

effects of the factors and replaces a 

standalone cumulative effects analysis. 

Conservation Actions 

The Service and State wildlife 

agencies are working with numerous 

partners to provide technical guidance 

and offer conservation tools to meet 

both species and habitat needs in 

aquatic systems in North Carolina. Land 

trusts are targeting key parcels for 

acquisition; Federal, State, and 

university biologists are surveying and 

monitoring species occurrences; and 

there has been increased interest in 

efforts for captive propagation and 

species population restoration via 

augmentation, expansion, and 

reintroduction efforts, especially for the 

Carolina madtom. However, some of 

these programs are in their infancy, and 

currently none provides species-level 

protection at a scale such that the 

species would not warrant listing under 

the Act. 

Future Scenarios 

For the purpose of this assessment, 

we define viability as the ability of the 

species to sustain populations in the 

wild over time. To address uncertainty 

associated with the degree and extent of 

potential future stressors and their 

impacts on species’ requisites, 

resiliency, redundancy, and 

representation were assessed using four 

plausible future scenarios. These 

scenarios were based, in part, on the 

results of urbanization and climate 

models that predict changes in habitat 

used by the Carolina madtom and the 

Neuse River waterdog. We developed 

scenarios by eliciting expert information 

on two main stressors, urbanization and 

climate change, that will impact the 

species in the future. The models that 

were used to forecast both factors 

projected 50 years into the future. Using 

the best available data to forecast 

plausible future scenarios allows the 

Service to determine if a species may 

become an endangered species in the 

foreseeable future. Relatively long 

species’ life spans, well-developed 

downscaled climate models specific to 

the region, and adequate human 

population growth data available for the 

Southeast region provide some 

confidence in the range of outcomes 

predicted over 50 years. Beyond that 

timeframe, there is too much 

uncertainty in threats that will be 

occurring on the landscape and how the 

species may respond to those threats. 

For more detailed information on these 

models and their projections, please see 

the SSA reports (Service 2021ab, 

chapter 5). 

In the first scenario, the ‘‘Status Quo’’ 

scenario, factors that influence current 

populations of the Carolina madtom and 

the Neuse River waterdog were assumed 

to follow current trends over the 50-year 

time horizon. Climate models predict 

that, if emissions continue at current 

rates, the Southeast will experience an 

increase in low flow (drought) events 

(IPCC 2013, p. 7). Likewise, this 

scenario assumed the ‘business as usual’ 

(BAU) pattern of urban growth, which 

predicts that urbanization will continue 

to increase rapidly (Terando et al. 2014, 

p. 1). This continued growth in 

development means increases in 

impervious surfaces, increased 

variability in streamflow, 

channelization of streams or clearing of 

riparian areas, and other negative effects 

explained above under ‘‘Development 

and Pollution.’’ The ‘‘Status Quo’’ 

scenario also assumed that current 

conservation efforts would remain in 

place but that no new actions would be 

taken. 

In the second scenario, the 

‘‘Pessimistic’’ scenario, factors that 

negatively influence Neuse River 

waterdog and the Carolina madtom 

populations get worse; reflecting 

Climate Model representative 

concentration pathway (RCP) 8.5 

(Wayne 2013, p. 11), effects of climate 

change are expected to be magnified 

beyond what is experienced in the 

‘‘Status Quo’’ scenario. These predicted 

effects include extreme heat, more 


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storms and flooding, and exacerbated 

drought conditions (IPCC 2013, p. 7). 

Based on the results of the SLEUTH 

(slope, land use, exclusion, urban, 

transportation, and hillshade) BAU 

model (Terando et al. 2014, entire), 

urbanization in the relevant watersheds 

could expand to triple the amount of 

developed area, resulting in large 

increases of impervious surface cover 

and, potentially, consumptive water 

use. Increased urbanization and climate 

change effects are likely to result in 

increased impacts to water quality, 

water flow, and habitat connectivity, 

and we predict that there is limited 

capacity for species restoration under 

this scenario. 

In the third scenario, labeled the 

‘‘Optimistic’’ scenario, factors that 

influence population and habitat 

conditions of the Neuse River waterdog 

and the Carolina madtom are expected 

to be somewhat improved. Reflecting 

Climate Model RCP 2.6 (Wayne 2013, p. 

11), climate change effects are predicted 

to be minimal under this scenario and 

would not include increased 

temperatures, and storms or droughts 

are as set forth in the ‘‘Status Quo’’ and 

‘‘Pessimistic’’ scenario predictions. 

Urbanization is also predicted to have 

less impact in this scenario, as reflected 

by effects that are slightly lower than 

BAU model predictions (Terando et al. 

2014, table 5–1). Because water quality, 

water flow, and habitat impacts are 

predicted to be less severe in this 

scenario as compared to others, it is 

expected that the species would have 

slightly positive responses. Targeted 

permanent protection of riparian areas 

is a potential conservation activity that 

could benefit these species, and current 

efforts are considered successful as part 

of the ‘‘Optimistic’’ scenario. 

In the fourth scenario, the 

‘‘Opportunistic’’ scenario, those 

landscape-level factors (e.g., 

development and climate change) that 

are influencing populations of the 

Neuse River waterdog and the Carolina 

madtom get moderately worse, 

reflecting Climate Change Model RCP 

4.5 (Wayne 2013, p. 11) and SLEUTH 

BAU (Terando et al. 2014, table 5–1). 

Effects of climate change are expected to 

be moderate, resulting in some 

increased impacts from heat, storms, 

and droughts (IPCC 2013, p. 7). 

Urbanization in this scenario reflects the 

moderate SLEUTH BAU levels, 

indicating approximately double the 

amount of developed area compared to 

current levels. Overall, it is expected 

that the synergistic impacts of changes 

in water quality, water flow, and habitat 

connectivity will negatively affect both 

species, although current land 

conservation efforts will benefit the 

species in some watersheds. 

Future Conditions of the Carolina 

Madtom and Neuse River Waterdog 

For details regarding the predicted 

future under each scenario, see chapter 

6 of the SSA reports for each species 

(Service 2021ab). 

Estimates of future resiliency for the 

Carolina madtom are low, as are 

estimates for representation and 

redundancy. Similarly, estimates of 

future resiliency for the Neuse River 

waterdog are moderate to low, as are 

estimates for representation and 

redundancy. Both species face a variety 

of risks from declines in water quality, 

loss of stream flow, riparian and 

instream fragmentation, and 

deterioration of instream habitats, and 

the madtom is particularly susceptible 

to predation from the invasive flathead 

catfish. These risks, which are expected 

to be exacerbated by urbanization and 

climate change, were important factors 

in our assessment of the future viability 

of the Carolina madtom and Neuse River 

waterdog. Given losses of resiliency, 

populations become more vulnerable to 

extirpation, resulting in concurrent 

losses in representation and 

redundancy. Predictions of Carolina 

madtom habitat conditions and 

population factors suggest possible 

extirpation in one of two currently 

extant populations. The one population 

predicted to remain extant (Tar) is 

expected to be characterized by low 

occupancy and abundance. Predictions 

of Neuse River waterdog habitat 

conditions and population factors 

suggest possible extirpation in two of 

three currently extant populations. 

Similar to the madtom, the one 

waterdog population predicted to 

remain extant (Tar-Pamlico) is expected 

to be characterized by low occupancy 

and abundance in the future. 

Determinations of Carolina Madtom 

and Neuse River Waterdog Status 

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

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of ‘‘endangered species’’ 

or ‘‘threatened species.’’ The Act defines 

an ‘‘endangered species’’ as a species 

that is in danger of extinction 

throughout all or a significant portion of 

its range, and a ‘‘threatened species’’ as 

a species that is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range. The Act 

requires that we determine whether a 

species meets the definition of 

‘‘endangered species’’ or ‘‘threatened 

species’’ because of any of the following 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

Carolina Madtom: Status Throughout 

All of Its Range 

The historical range of the Carolina 

madtom included third and fourth order 

streams and rivers in the Tar, Neuse, 

and Trent drainages, with documented 

historical distribution in 11 MUs within 

3 former populations, the Tar, Neuse, 

and Trent. The Carolina madtom is 

presumed extirpated from 55 percent (6) 

of the historically occupied MUs. Of the 

five MUs that remain occupied, one is 

estimated to have high resiliency, one 

with moderate resiliency, two with low 

resiliency, and one with very low 

resiliency. Scaling up from the MU to 

the population level, the Tar population 

is estimated to have moderate 

resiliency, the Neuse population is 

characterized by very low resiliency, 

and the Trent population is presumed to 

be extirpated. Of streams that were once 

part of the species’ range, 82 percent are 

estimated to be in low condition or 

likely extirpated. Once known to 

occupy streams in two physiographic 

regions, the species has also lost 

substantial physiographic 

representation with an estimated 44 

percent loss in Piedmont watersheds 

and an estimated 86 percent loss in 

Coastal Plain watersheds. 

Estimates of current resiliency for 

Carolina madtom are low, as are 

estimates for representation and 

redundancy. The Carolina madtom faces 

a variety of ongoing threats from 

declines in water quality, loss of stream 

flow, riparian and instream 

fragmentation, and deterioration of 

instream habitats (Factor A). This 

species also faces the threat of predation 

from the invasive flathead catfish 

(Factor C). These threats are expected to 

be exacerbated by continued 

urbanization (Factor A) and climate 

change (Factor E). Given current rates of 

resiliency, populations are vulnerable to 

extirpation from stochastic events, in 

turn, resulting in concurrent losses in 

representation and redundancy. 

The current conditions as assessed in 

the Carolina madtom SSA report show 

that 55 percent of the management units 

over three populations (river systems) 

are presumed extirpated. The Carolina 

madtom currently has two of three 


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remaining populations, but one of those 

populations (Neuse) is characterized by 

‘‘very low’’ resiliency. Once known to 

occupy streams in two physiographic 

regions, the species has also lost 

substantial physiographic 

representation with an estimated 44 

percent loss in Piedmont watersheds 

and an estimated 86 percent loss in 

Coastal Plain watersheds. The one 

moderately resilient population (Tar) 

was determined not to be sufficient for 

the species to withstand catastrophic 

events, nor is it sufficient to enable the 

species to maintain adaptive capacity. 

Therefore resiliency, redundancy, and 

representation are all at levels that put 

the species at risk of extinction 

throughout its range now. We conclude 

that the species is currently in danger of 

extinction throughout all of its range. 

Because the species is already in danger 

of extinction throughout its range, a 

threatened status is not appropriate. 

Carolina Madtom: Status Throughout a 

Significant Portion of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. We have 

determined that the Carolina madtom is 

in danger of extinction throughout all of 

its range, and accordingly, did not 

undertake an analysis of any significant 

portions of its range. Because we have 

determined that the Carolina madtom 

warrants listing as endangered 

throughout all of its range, our 

determination is consistent with the 

decision in Center for Biological 

Diversity v. Everson, 2020 WL 437289 

(D.D.C. Jan. 28, 2020), in which the 

court vacated the aspect of the Final 

Policy on Interpretation of the Phrase 

‘‘Significant Portion of Its Range’’ in the 

Endangered Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. 

Carolina Madtom Determination of 

Status 

Our review of the best available 

scientific and commercial information 

indicates that the Carolina madtom 

meets the Act’s definition of an 

endangered species. Therefore, we are 

listing the Carolina madtom as an 

endangered species in accordance with 

sections 3(6) and 4(a)(1) of the Act. 

Neuse River Waterdog: Status 

Throughout All of Its Range 

The historical range of the Neuse 

River waterdog likely included all third 

and fourth order streams and rivers 

throughout the Tar-Pamlico, Neuse, and 

Trent drainages, with documented 

historical distribution in nine MUs 

within three populations. Of those nine 

occupied MUs, two (22 percent) are 

estimated to have high resiliency, two 

(22 percent) moderate resiliency, and 

five (56 percent) low resiliency. Scaling 

up from the MU to the population level, 

one of three populations (the Tar 

population) is estimated to have 

moderate resiliency, and two (the Neuse 

and Trent populations) are 

characterized by low resiliency. In 

short, 60 percent of streams that were 

once part of the species’ range are 

estimated to be in low condition or 

likely extirpated. The species is known 

to occupy streams in two physiographic 

regions, but it has lost physiographic 

representation with an estimated 43 

percent loss in Piedmont watersheds 

and an estimated 13 percent loss in 

Coastal Plain watersheds. 

The Neuse River waterdog faces 

threats from declines in water quality, 

loss of stream flow, riparian and 

instream fragmentation, and 

deterioration of instream habitats 

(Factor A). These threats are expected to 

be exacerbated by continued 

urbanization (Factor A) and effects of 

climate change (Factor E). Given current 

and future decreases in resiliency, 

populations become more vulnerable to 

extirpation from stochastic events, in 

turn, resulting in concurrent losses in 

representation and redundancy. The 

range of plausible future scenarios of 

Neuse River waterdog habitat conditions 

and population factors suggest reduced 

viability into the future. Under Scenario 

1, the ‘‘Status Quo’’ option, a loss of 

resiliency, representation, and 

redundancy is expected. Under this 

scenario, we predicted that no MUs 

would remain in high condition, two 

would be in moderate condition, four 

would be in low condition, and three 

MUs would be likely extirpated. 

Redundancy would be reduced to four 

MUs in the Tar Population and two in 

the Neuse Population. Representation 

would also be reduced, primarily with 

reduced variability in the Piedmont and 

Coastal Plain. 

Under scenario two, the ‘‘Pessimistic’’ 

option, we predicted substantial losses 

of resiliency, representation, and 

redundancy. Redundancy would be 

reduced to four MUs in one population, 

and the resiliency of that population is 

expected to be low. Five MUs were 

predicted to be extirpated, and, of the 

remaining four MUs, all would be in 

low condition. All measures of 

representation are predicted to decline 

under this scenario, leaving remaining 

Neuse River waterdog populations 

underrepresented in river basin and 

physiographic variability. 

Under scenario three, the 

‘‘Optimistic’’ option, we predicted 

slightly higher levels of resiliency, 

representation, and redundancy than 

were estimated under the Status Quo or 

Pessimistic options. Three MUs would 

be in high condition, one in moderate 

condition, and the remaining five would 

be in low condition. Despite predictions 

of population persistence in the Neuse 

and Trent River basins, these 

populations are expected to retain only 

low levels of resiliency; thus, levels of 

representation are also predicted to 

decline under this scenario. 

Finally, under scenario four, the 

‘‘Opportunistic’’ option, we predicted 

reduced levels of resiliency, 

representation, and redundancy. One 

MU would be in high condition, three 

would be in moderate condition, three 

would be in low condition, and two 

would be likely extirpated. Redundancy 

would be reduced with the loss of the 

Trent population. Under the 

‘‘Opportunistic’’ scenario, 

representation is predicted to be 

reduced, with 67 percent of formerly 

occupied river basins remaining 

occupied and with reduced variability 

in the Piedmont and Coastal Plain 

physiographic regions. Both the 

‘‘Optimistic’’ and ‘‘Opportunistic’’ 

scenarios were determined to be 

‘‘unlikely’’ in the analysis, while the 

most likely scenarios were ‘‘Status Quo’’ 

and ‘‘Pessimistic.’’ Under either of these 

more likely scenarios, resiliency is low 

in most of the remaining populations, 

and many populations are likely 

extirpated so that redundancy and 

representation are significantly reduced. 

This expected reduction in both the 

number and distribution of resilient 

populations is likely to make the species 

vulnerable to catastrophic disturbance. 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the section 4(a)(1) 

factors, we predict that the population 

and habitat factors used to determine 

the resiliency, representation, and 

redundancy for the Neuse River 

waterdog will continue to decline. Thus, 

after assessing the best available 

information, we conclude that the 

Neuse River waterdog is not currently in 

danger of extinction, but is likely to 

become in danger of extinction within 

the foreseeable future throughout all of 

its range. 


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First, we considered whether the 

Neuse River waterdog is presently in 

danger of extinction and determined 

that proposing endangered status is not 

appropriate. The current conditions as 

assessed in the Neuse River waterdog 

SSA report show that the species exists 

in nine MUs over three different 

populations (river systems) over a 

majority (65 percent) of the species’ 

historical range. The Neuse River 

waterdog still exhibits representation 

across both physiographic regions, and 

extant populations remain across the 

range. In short, while the primary 

threats are currently acting on the 

species and many of those threats are 

expected to continue into the future, we 

did not find that the species is currently 

in danger of extinction throughout all of 

its range. However, according to our 

assessment of plausible future scenarios, 

the species is likely to become an 

endangered species in the foreseeable 

future throughout all of its range. Fifty 

years was considered ‘‘foreseeable’’ in 

this case because it included projections 

from both available models, and Neuse 

River waterdogs are a long-lived and 

slow-growing species. We can reliably 

predict both the future threats and the 

species’ responses to those threats over 

50 years as presented in the models of 

predicted urbanization and climate 

change. 

As discussed above, the range of 

plausible future scenarios of Neuse 

River waterdog habitat conditions and 

population factors suggest reduced 

viability into the future. Both the 

‘‘Optimistic’’ and ‘‘Opportunistic’’ 

scenarios were determined to be 

‘‘unlikely’’ in the analysis, while the 

most likely scenarios were ‘‘Status Quo’’ 

and ‘‘Pessimistic.’’ Under either of these 

more likely scenarios, resiliency is low 

in most of the remaining populations, 

and many populations are likely 

extirpated so that redundancy and 

representation are significantly reduced. 

This expected reduction in both the 

number and distribution of resilient 

populations is likely to make the species 

vulnerable to catastrophic disturbance. 

Accordingly, we find the Neuse River 

waterdog warrants listing as threatened 

because it is likely to become in danger 

of extinction within the foreseeable 

future throughout all of its range. 

Neuse River Waterdog: Status 

Throughout a Significant Portion of Its 

Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect of the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided that the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. Therefore, 

we proceed to evaluate whether the 

species is endangered in any significant 

portion of its range—that is, whether 

there is any portion of the species’ range 

for which both (1) the portion is 

significant; and (2) the species is in 

danger of extinction in that portion. 

Depending on the case, it might be more 

efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (i.e., endangered). In 

undertaking this analysis for Neuse 

River waterdog, we choose to address 

the status question first—we consider 

information pertaining to the geographic 

distribution of both the species and the 

threats that the species faces to identify 

any portions of the range where the 

species is endangered. 

For the Neuse River waterdog, we 

considered whether the threats are 

geographically concentrated in any 

portion of the species’ range at a 

biologically meaningful scale. We 

examined the following threats: 

Declines in water quality, loss of stream 

flow, riparian and instream 

fragmentation, deterioration of instream 

habitats, and cumulative effects. We 

found a concentration of threats in the 

Trent River basin and the Upper and 

Middle Neuse River portions of the 

Neuse River waterdog’s range. The 

species has experienced declines 

throughout its range, but most notably 

in the Piedmont portions of the upper 

and Middle Neuse River basin and the 

southern portion of its range, the Trent 

River basin. 

The Neuse River waterdog population 

in the Trent has experienced a 67 

percent decline in redundancy, with 

overall very low resiliency currently. 

Agriculture practices and CAFOs, 

numerous in the southeastern coastal 

plain of North Carolina, particularly in 

the Trent River basin, contribute to poor 

water quality and fragmented or 

deteriorated instream habitats, 

influencing resiliency of Neuse River 

waterdogs in this portion of the range. 

The waterdog populations in the 

Upper and Middle Neuse basin also 

exhibit current low resiliency with only 

a 10 to 30 percent probability of species’ 

persistence. Exceptionally high 

development pressure from the 

expanding Triangle Region of central 

North Carolina has contributed to 

declines in water quality, loss of stream 

flow, fragmentation of riparian and 

instream habitats, and overall 

deterioration of instream habitat for the 

Neuse River waterdog. 

Since these management units have 

seen populations reduced to very low 

condition, this circumstance—in 

combination with the other threats 

acting on the species throughout its 

range—may indicate that there is a 

concentration of threats in these basins 

such that the species may be in danger 

of extinction in these portions of the 

range. 

Small, isolated populations often 

exhibit reduced levels of genetic 

variability, which diminishes the 

species’ capacity to adapt and respond 

to environmental changes, thereby 

decreasing the probability of long-term 

persistence. Small populations may 

experience reduced reproductive vigor, 

for example, due to inbreeding 

depression. Isolated individuals may 

have difficulty reproducing. The 

problems associated with small 

population size and vulnerability to 

random demographic fluctuations or 

natural catastrophes are further 

magnified by synergistic interactions 

with other threats, such as those 

discussed above. Based on our review of 

information and the synergistic effects 

of threats exacerbated by the very lowcondition populations in the Trent, 

Upper Neuse, and Middle Neuse basins, 

we find that there is information that 

the populations in these basins may be 

in danger of extinction. 

Because we have determined that the 

Trent, Upper Neuse, and Middle Neuse 

basins are portions of the range that may 

be in danger of extinction, we next 

evaluate whether those portions of the 

range may be significant. As an initial 

note, the Service’s most recent 

definition of ‘‘significant’’ within 

agency policy guidance has been 

invalidated by court order (see Desert 

Survivors v. Dep’t of the Interior, No. 

16–cv–01165 (N.D. Cal. Aug. 24, 2018)). 

Therefore, for purposes of this analysis, 


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the Service is evaluating potentially 

significant portions of the range by 

applying any reasonable definition of 

‘‘significant’’ in terms of its biological 

importance. Factors we considered in 

the ‘‘significance’’ analysis were: (1) 

Whether the portion is large 

geographically or in its contribution to 

resiliency, redundancy, and 

representation relative to the remainder 

of the range; (2) whether the portion 

contains high-quality habitat relative to 

the remainder of the range; (3) whether 

the portion constitutes high-value or 

unique habitat for the species; or (4) 

whether the portion contains habitat 

that is essential to the life history, and 

therefore the overall conservation, of the 

species. 

We examined the first question of 

whether these portions could be 

significant portions of the Neuse River 

waterdog’s range by examining their 

contribution to the resiliency, 

redundancy, and representation of the 

species. We determined that the Trent 

MU contains 1 out of 20 occupied 

HUC10 watersheds identified in the 

SSA report; thus, the Trent represents 

approximately 5 percent of the 

geographical range of the species. 

Similarly, the Upper Neuse MU 

contains 1 out of 20 HUC10 watersheds, 

or approximately 5 percent of the range 

as well. The Middle Neuse MU contains 

4 out of 20 HUC10 watersheds, or 

approximately 20 percent of the 

geographical range. Currently, these 

areas individually or together 

(representing approximately 30 percent) 

represent a small portion of the 

waterdog’s geographical range. Because 

these units collectively have few 

healthy populations, they are not 

currently contributing in an important 

way to the species’ overall resiliency. 

Neuse River waterdog populations are 

distributed over two physiographic 

regions in three river basins, and we 

considered geographic range as a 

surrogate for geographic variation and 

proxy for potential local adaptation and 

adaptive capacity. The Piedmont 

streams in the upper and middle Tar 

and upper and middle Neuse river 

basins contain similar features and 

instream habitats as those of the Coastal 

Plain streams in the lower Tar-Pamlico, 

lower Neuse, and Trent River basins. 

There are no data indicating genetic or 

morphological differentiation between 

the three river basins for the species. 

Further, the waterdog occurs in similar 

aquatic habitats and does not use 

unique observable environmental or 

behavioral characteristics attributable to 

any of the basins. Therefore, it exhibits 

similar basin-scale use of habitat. 

At a management unit level, the 

Trent, Upper Neuse, and Middle Neuse 

MUs occur in stream habitat comprised 

of similar substrate types to the other 

MUs where the Neuse River waterdog 

performs the important life-history 

functions of breeding, feeding, and 

sheltering, and occurs in areas with 

water quality sufficient to sustain these 

essential life-history traits. The Trent, 

Upper Neuse, and Middle Neuse do not 

act as a refugia for the species or as an 

important spawning ground. Since the 

waterdog occurs in similar aquatic 

habitats, the Trent, Upper Neuse, and 

Middle Neuse exhibit similar habitat 

use as populations in the remainder of 

the range. Therefore, there is no unique, 

observable environmental usage or 

behavioral characteristics attributable to 

just the Trent, Upper Neuse, and Middle 

Neuse MUs. 

Overall, we found no substantial 

information that would indicate the 

Trent, Upper Neuse, or Middle Neuse 

are portions of the range that may be 

significant in terms of their overall 

contribution to the species’ resiliency, 

redundancy, and representation, or that 

they may be significant in terms of highquality habitat or habitat that is 

otherwise important for the species’ life 

history. As a result, we determined 

there is no portion of the Neuse River 

waterdog’s range that constitutes a 

significant portion of the range. This is 

consistent with the courts’ holdings in 

Desert Survivors v. Department of the 

Interior, No. 16–cv–01165–JCS, 2018 

WL 4053447 (N.D. Cal. Aug. 24, 2018), 

and Center for Biological Diversity v. 

Jewell, 248 F. Supp. 3d, 946, 959 (D. 

Ariz. 2017). Accordingly, we determine 

that the species is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Determination of Neuse River Waterdog 

Status 

Our review of the best available 

scientific and commercial information 

indicates that the Neuse River waterdog 

meets the Act’s definition of a 

threatened species. Therefore, we are 

listing the Neuse River waterdog as a 

threatened species in accordance with 

sections 3(20) and 4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing results in 

public awareness, and conservation by 

Federal, State, Tribal, and local 

agencies; private organizations; and 

individuals. The Act encourages 

cooperation with the States and other 

countries and calls for recovery actions 

to be carried out for listed species. The 

protection required by Federal agencies 

and the prohibitions against certain 

activities are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

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

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, 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 identifies recovery criteria 

for review of when a species may be 

ready for reclassification from 

endangered to threatened 

(‘‘downlisting’’) or removal from 

protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Recovery teams 

(composed of species experts, Federal 

and State agencies, nongovernmental 

organizations, and stakeholders) are 

often established to develop recovery 

plans. When completed, the recovery 

outline, draft recovery plan, and the 

final recovery plan will be available on 

our website (http://www.fws.gov/ 

endangered), or from our Raleigh 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 


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businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, State, and Tribal lands. 

Following publication of this final 

rule, funding for recovery actions will 

be available from a variety of sources, 

including Federal budgets, State 

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

community, and nongovernmental 

organizations. In addition, pursuant to 

section 6 of the Act, the State of North 

Carolina will be eligible for Federal 

funds to implement management 

actions that promote the protection or 

recovery of the Carolina madtom and 

Neuse River waterdog. Information on 

our grant programs that are available to 

aid species recovery can be found at: 

http://www.fws.gov/grants. 

Please let us know if you are 

interested in participating in recovery 

efforts for the Carolina madtom and 

Neuse River waterdog. Additionally, we 

invite you to submit any new 

information on this species whenever it 

becomes available and any information 

you may have for recovery planning 

purposes (see FOR FURTHER INFORMATION

CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is listed as an endangered or threatened 

species and with respect to its critical 

habitat, if any is designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. Section 

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

agencies to ensure that activities they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or destroy or 

adversely modify its critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency must enter 

into consultation with the Service. 

Federal agency actions within the 

species’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

may include, but are not limited to, 

management and any other landscapealtering activities on Federal lands 

administered by the Service, U.S. Forest 

Service, and National Park Service; 

issuance of section 404 Clean Water Act 

(33 U.S.C. 1251 et seq.) permits by the 

U.S. Army Corps of Engineers; and 

construction and maintenance of roads 

or highways by the Federal Highway 

Administration. 

Carolina Madtom 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered wildlife. The prohibitions 

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

50 CFR 17.21, make it illegal for any 

person subject to the jurisdiction of the 

United States to take (which includes 

harass, harm, pursue, hunt, shoot, 

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

to attempt any of these) endangered 

wildlife within the United States or on 

the high seas. In addition, it is unlawful 

to import; export; deliver, receive, carry, 

transport, or ship in interstate or foreign 

commerce in the course of commercial 

activity; or sell or offer for sale in 

interstate or foreign commerce any 

species listed as an endangered species. 

It is also illegal to possess, sell, deliver, 

carry, transport, or ship any such 

wildlife that has been taken illegally. 

Certain exceptions apply to employees 

of the Service, the National Marine 

Fisheries Service, other Federal land 

management agencies, and State 

conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.22. With regard to endangered 

wildlife, a permit may be issued for the 

following purposes: For scientific 

purposes, to enhance the propagation or 

survival of the species, and for 

incidental take in connection with 

otherwise lawful activities. There are 

also certain statutory exemptions from 

the prohibitions, which are found in 

sections 9 and 10 of the Act. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a listing on proposed and 

ongoing activities within the range of 

the listed species. At this time, we are 

unable to identify specific activities that 

would not be considered to result in a 

violation of section 9 of the Act because 

the Carolina madtom occurs in a variety 

of habitat conditions across its range 

and it is likely that site-specific 

conservation measures may be needed 

for activities that may directly or 

indirectly affect the species. Based on 

the best available information, the 

following activities may potentially 

result in a violation of section 9 of the 

Act if they are not authorized in 

accordance with applicable law; this list 

is not comprehensive: 

(1) Unauthorized handling or 

collecting of the species; 

(2) Destruction/alteration of the 

species’ habitat by discharge of fill 

material, draining, ditching, tiling, pond 

construction, stream channelization or 

diversion, or diversion or alteration of 

surface or ground water flow into or out 

of the wetland (i.e., due to roads, 

impoundments, discharge pipes, 

stormwater detention basins, etc.); 

(3) Activities that result in direct or 

indirect destruction of riparian habitat; 

(4) Modification of the channel or 

water flow of any stream or removal or 

destruction of emergent aquatic 

vegetation in any body of water in 

which the Carolina madtom is known to 

occur; 

(5) Discharge of chemicals or fill 

material into any waters in which the 

Carolina madtom is known to occur; 

and 

(6) Pesticide applications in violation 

of label restrictions. 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the Raleigh Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Neuse River Waterdog 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a listing on proposed and 

ongoing activities within the range of a 

listed species. The discussion below 

regarding protective regulations under 

section 4(d) of the Act complies with 

our policy. 

II. Final Rule Issued Under Section 4(d) 

of the Act for the Neuse River Waterdog 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as he or she deems 

necessary and advisable to provide for 

the conservation of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 


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(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting the 

prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife, or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him with regard to the 

permitted activities for those species. He 

may, for example, permit taking, but not 

importation of such species, or he may 

choose to forbid both taking and 

importation but allow the transportation 

of such species’’ (H.R. Rep. No. 412, 

93rd Cong., 1st Sess. 1973). 

Exercising this authority under 

section 4(d), we have developed a rule 

that is designed to address the Neuse 

River waterdog’s specific threats and 

conservation needs. Although the 

statute does not require the Service to 

make a ‘‘necessary and advisable’’ 

finding with respect to the adoption of 

specific prohibitions under section 9, 

we find that this rule as a whole satisfies 

the requirement in section 4(d) of the 

Act to issue regulations deemed 

necessary and advisable to provide for 

the conservation of the Neuse River 

waterdog. As discussed above under 

Summary of Biological Status and 

Threats, we have concluded that the 

Neuse River waterdog is likely to 

become in danger of extinction within 

the foreseeable future primarily due to 

habitat degradation from stressors 

influencing water quality, water 

quantity, instream habitat, and habitat 

connectivity. The provisions of this 4(d) 

rule will promote conservation of the 

Neuse River waterdog by encouraging 

management of the landscape in ways 

that meet both land management 

considerations and the conservation 

needs of the Neuse River waterdog. The 

provisions of this rule are one of many 

tools that the Service will use to 

promote the conservation of the Neuse 

River waterdog. 

Provisions of the 4(d) Rule 

This 4(d) rule will provide for the 

conservation of the Neuse River 

waterdog by prohibiting the following 

activities, except as otherwise 

authorized or permitted: Importing or 

exporting; take; possession and other 

acts with unlawfully taken specimens; 

delivering, receiving, transporting, or 

shipping in interstate or foreign 

commerce in the course of commercial 

activity; or selling or offering for sale in 

interstate or foreign commerce. 

Import/export, possession, 

transportation, sale, and commerce are 

of concern for many aquatic 

amphibians, primarily because rare, 

strange-looking amphibians with frilly 

external gills (like the Neuse River 

waterdog) are highly sought after in the 

global pet trade. Regulating these 

activities will help protect the Neuse 

River waterdog from exploitation. 

As discussed above under Summary 

of Biological Status and Threats, habitat 

degradation from stressors influencing 

water quality, water quantity, instream 

habitat, and habitat connectivity are 

affecting the status of the Neuse River 

waterdog. A range of activities have the 

potential to affect the Neuse River 

waterdog, including development, 

pollution, agricultural practices, land 

conversion, incompatible forest 

management, invasive species, dams 

and barriers, and energy production and 

mining. Regulating incidental take 

associated with these activities will help 

preserve the species’ remaining 

populations, slow its rate of decline, 

and decrease synergistic, negative 

effects from other threats. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

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

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulations at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Regulating incidental take will help 

preserve the species’ remaining 

populations, slow their rate of decline, 

and decrease synergistic, negative 

effects from other threats. Protecting the 

Neuse River waterdog from direct forms 

of take, such as physical injury or 

killing, whether incidental or 

intentional, will help preserve and 

recover the species. Therefore, we 

prohibit intentional take of Neuse River 

waterdog, including, but not limited to, 

capturing, handling, trapping, 

collecting, or other activities. Also, as 

discussed above under Summary of 

Biological Status and Threats, habitat 

degradation from stressors influencing 

water quality, water quantity, instream 

habitat, and habitat connectivity are 

affecting the status of the Neuse River 

waterdog. Across the species’ range, 

stream and water quality have been 

degraded physically by sedimentation, 

pollution, contaminants, 

impoundments, channelization, 

destruction of riparian habitat, and loss 

of riparian vegetation due to 

development, agricultural practices, 

land conversion, incompatible forest 

management, invasive species, dams 

and barriers, and energy production and 

mining. Other habitat or hydrological 

alteration, such as ditching, draining, 

stream diversion, or diversion or 

alteration of surface or ground water 

flow, into or out of the stream, will 

impact the habitat of the species. 

Therefore, we prohibit incidental take of 

the Neuse River waterdog by destroying, 

altering, or degrading the habitat in the 

manner described above. Regulating 

incidental take associated with these 

activities will help preserve Neuse River 

waterdog populations, slow the rate of 

population decline, and decrease 

synergistic, negative effects from other 

stressors. 

During both public comment periods, 

the Service received numerous 

comments on the exception for 

incidental take resulting from 

silvicultural practices and forest 

management activities (see Summary of 

Comments and Recommendations, 

above). North Carolina’s forestry best 

management practices (BMPs), when 

properly implemented, protect water 

quality and help conserve aquatic 

species, including the Neuse River 

waterdog. Forest landowners who 

properly implement those BMPs are 

helping conserve the waterdog, and this 

4(d) rule is an incentive for all 

landowners to properly implement them 


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to avoid any take implications. Further, 

those forest landowners who are thirdparty-certified to a credible forest 

management standard are providing 

audited certainty that BMP 

implementation is taking place across 

the landscape. 

To address any uncertainty regarding 

which silvicultural and forest 

management BMPs will satisfy this 

exception for incidental take resulting 

from silvicultural practices and forest 

management activities, our regulations 

specify the conditions that must be met. 

We revised our section 4(d) language to 

clarify that the BMPs must result in 

protection of the habitat features that 

provide for the breeding, feeding, 

sheltering, and dispersal needs of the 

Neuse River waterdog, which will 

provide for the conservation of the 

species. In waterbodies that support 

listed aquatic species, a wider SMZ is 

more effective at reducing 

sedimentation, maintaining lower water 

temperatures through shading, and 

introducing food (such as leaves and 

insects) into the food chain (VADF 

2011, p. 37). Ninety percent of the food 

in forested streams comes from 

bordering vegetation (NCWRC 2002, p. 

6; USFWS 2006, p. 6; Stewart et al. 

2000, p. 210; USFWS 2020ab, p. 10). 

Neuse River waterdogs require cool, 

well-oxygenated water, and a clean 

stream bottom (USFWS 2020ab, p. 10). 

A lack of these features limits the 

number of waterdogs a stream can 

support. Aquatic habitat and suitable 

water temperature can be maintained 

even during logging operations when 

streamside vegetation is left intact 

(VADF 2011, p. 37). The exception for 

incidental take associated with these 

activities seeks to ensure these 

characteristics are maintained for the 

conservation of the Neuse River 

waterdog. 

Under this final 4(d) rule, all 

prohibitions and provisions of section 

9(a)(1) of the Act apply to the Neuse 

River waterdog, except that incidental 

take resulting from the following actions 

will not be prohibited: 

(1) Species restoration efforts by State 

wildlife agencies, including collection 

of broodstock, tissue collection for 

genetic analysis, captive propagation, 

and subsequent stocking into currently 

occupied and unoccupied areas within 

the historical range of the species, and 

follow-up monitoring. 

(2) Channel restoration projects that 

create natural, physically stable, 

ecologically functioning streams (or 

stream and wetland systems) that are 

reconnected with their groundwater 

aquifers. These projects can be 

accomplished using a variety of 

methods, but the desired outcome is a 

natural channel with low shear stress 

(force of water moving against the 

channel); bank heights that enable 

reconnection to the floodplain; a 

reconnection of surface and 

groundwater systems, resulting in 

perennial flows in the channel; riffles 

and pools composed of existing soil, 

rock, and wood instead of large 

imported materials; low compaction of 

soils within adjacent riparian areas; and 

inclusion of riparian wetlands. Secondto third-order, headwater streams 

reconstructed in this way offer suitable 

habitats for the Neuse River waterdog 

and contain stable channel features, 

such as pools, glides, runs, and riffles, 

which could be used by the species for 

spawning, rearing, growth, feeding, 

migration, and other normal behaviors. 

Prior to restoration action, surveys to 

determine presence of Neuse River 

waterdog must be performed, and if 

located, waterdogs must be relocated 

prior to project implementation. 

(3) Bank stabilization projects that use 

bioengineering methods to replace preexisting, bare, eroding stream banks 

with vegetated, stable stream banks, 

thereby reducing bank erosion and 

instream sedimentation and improving 

habitat conditions for the species. 

Following these bioengineering 

methods, stream banks may be 

stabilized using native species live 

stakes (live, vegetative cuttings inserted 

or tamped into the ground in a manner 

that allows the stake to take root and 

grow), native species live fascines (live 

branch cuttings, usually willows, bound 

together into long, cigar shaped 

bundles), or native species brush 

layering (cuttings or branches of easily 

rooted tree species layered between 

successive lifts of soil fill). Native 

species vegetation includes woody and 

herbaceous species appropriate for the 

region and habitat conditions. These 

methods will not include the sole use of 

quarried rock (rip-rap) or the use of rock 

baskets or gabion structures. 

(4) Forestry-related activities, 

including silvicultural practices, forest 

management activities, and fire control 

tactics, that implement State-approved 

BMPs. In order for this exception to 

apply to forestry-related activities, these 

BMPs must achieve all of the following: 

(a) Establish a streamside 

management zone alongside the margins 

of each waterway. 

(b) Restrain visible sedimentation 

caused by the forestry-related activity 

from entering the waterway. 

(c) Maintain native groundcover 

within the streamside management zone 

of the waterway, and promptly reestablish native groundcover if 

disturbed. 

(d) Limit installation of vehicle or 

equipment crossings of the waterway to 

only where necessary for the forestryrelated activity. Such crossings must: 

(i) Have erosion and sedimentation 

control measures installed to divert 

surface runoff away and restrain visible 

sediment from entering the waterway; 

(ii) Allow for movement of aquatic 

organisms within the waterway; and 

(iii) Have native groundcover applied 

and maintained through completion of 

the forestry-related activity. 

(e) Prohibit the use of tracked or 

wheeled vehicles for reforestation site 

preparation within the streamside 

management zone of the waterway. 

(f) Prohibit locating log decks, skid 

trails, new roads, and portable mill sites 

in the streamside management zone of 

the waterway. 

(g) Prohibit obstruction and 

impediment of the flow of water within 

the waterway, caused by direct 

deposition of debris or soil by the 

forestry-related activity. 

(h) Maintain shade over the waterway 

similar to that observed prior to the 

forestry-related activity. 

(i) Prohibit discharge of any solid 

waste, petroleum, pesticide, fertilizer, or 

other chemical into the waterway. 

We reiterate that these actions and 

activities may have some minimal level 

of take of the Neuse River waterdog, but 

are unlikely to negatively impact the 

species’ conservation and recovery 

efforts. To the contrary, we expect they 

would have a net beneficial effect on the 

species. Across the species’ range, 

instream habitats have been degraded 

physically by sedimentation and by 

direct channel disturbance. The 

activities in the 4(d) rule will correct 

some of these problems, creating more 

favorable habitat conditions for the 

species. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.32. With regard to threatened 

wildlife, a permit may be issued for the 

following purposes: For scientific 

purposes, to enhance propagation or 

survival, for economic hardship, for 

zoological exhibition, for educational 

purposes, for incidental taking, or for 

special purposes consistent with the 

purposes of the Act. There are also 

certain statutory exemptions from the 

prohibitions, which are found in 

sections 9 and 10 of the Act. 

The Service recognizes the special 

and unique relationship with our State 


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natural resource agency partners in 

contributing to conservation of listed 

species. State agencies often possess 

scientific data and valuable expertise on 

the status and distribution of 

endangered, threatened, candidate, and 

at-risk species of wildlife and plants. 

State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist the Service in 

implementing all aspects of the Act. In 

this regard, section 6 of the Act provides 

that the Service shall cooperate to the 

maximum extent practicable with the 

States in carrying out programs 

authorized by the Act. Therefore, any 

qualified employee or agent of a State 

conservation agency that is a party to a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act, who is designated by his or her 

agency for such purposes, will be able 

to conduct activities designed to 

conserve the Neuse River waterdog that 

may result in otherwise prohibited take 

without additional authorization. 

Nothing in this 4(d) rule will change 

in any way the recovery planning 

provisions of section 4(f) of the Act, the 

consultation requirements under section 

7 of the Act, or the ability of the Service 

to enter into partnerships for the 

management and protection of the 

Neuse River waterdog. However, 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service. 

III. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the Federal agency would be required to 

consult with the Service under section 

7(a)(2) of the Act. However, even if the 

Service were to conclude that the 

proposed activity would result in 

destruction or adverse modification of 

the critical habitat, the Federal action 

agency and the landowner are not 

required to abandon the proposed 

activity, or to restore or recover the 

species; instead, they must implement 

‘‘reasonable and prudent alternatives’’ 

to avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features within an 

area, we focus on the specific features 

that support the life-history needs of the 

species, including, but not limited to, 

water characteristics, soil type, 

geological features, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic, or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat that this 

rule follows (based on the May 22, 2019, 

publication date of the proposed rule), 

we can designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. We will determine whether 

unoccupied areas are essential for the 

conservation of the species by 

considering the life-history, status, and 

conservation needs of the species. This 

will be further informed by any 

generalized conservation strategy, 

criteria, or outline that may have been 

developed for the species to provide a 

substantive foundation for identifying 

which features and specific areas are 

essential to the conservation of the 

species and, as a result, the 

development of the critical habitat 

designation. For example, an area 

currently occupied by the species but 

that was not occupied at the time of 

listing may be essential to the 

conservation of the species and may be 

included in the critical habitat 

designation. Section 4 of the Act 

requires that we designate critical 

habitat based on the best scientific data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 


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Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and other information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of this species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

On August 27, 2019, we published a 

final rule in the Federal Register (84 FR 

45020) to amend our regulations 

concerning the procedures and criteria 

we use to designate and revise critical 

habitat. That rule became effective on 

September 26, 2019, but, as stated in 

under DATES in that rule, the 

amendments it sets forth apply to ‘‘rules 

for which a proposed rule was 

published after September 26, 2019.’’ 

We published our proposed critical 

habitat designations for the Carolina 

madtom and Neuse River waterdog on 

May 22, 2019 (84 FR 23644); therefore, 

the amendments set forth in the August 

27, 2019, final rule at 84 FR 45020 do 

not apply to this final designation of 

critical habitat for the Carolina madtom 

and Neuse River waterdog. 

Prudency Determination 

While the implementing regulations 

(50 CFR 424.12) of section 4(a)(3) of the 

Act, as amended, have recently been 

amended, the proposed rule that led to 

this final rule published before the new 

regulations were implemented; 

therefore, we are operating under the 

older implementing regulations that 

require that the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species to the 

maximum extent prudent and 

determinable. Our regulations (50 CFR 

424.12(a)(1)) state that the designation 

of critical habitat is not prudent when 

one or both of the following situations 

exist: 

(1) The species is threatened by taking 

or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of threat 

to the species, or 

(2) Such designation of critical habitat 

would not be beneficial to the species. 

In determining whether a designation 

would not be beneficial, the factors the 

Service may consider include but are 

not limited to: Whether the present or 

threatened destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or whether 

any areas meet the definition of ‘‘critical 

habitat.’’ 

In our SSA report and the proposed 

listing determination for the Carolina 

madtom and Neuse River waterdog, we 

determined that the present or 

threatened destruction, modification, or 

curtailment of habitat or range is a 

threat to both the Carolina madtom and 

Neuse River waterdog and that those 

threats in some way can be addressed by 

section 7(a)(2) consultation measures. 

Accordingly, such a designation could 

be beneficial to the species. Therefore, 

because none of the circumstances 

enumerated in our regulations at 50 CFR 

424.12(a)(1) has been met and because 

there are no other circumstances the 

Secretary has identified for which this 

designation of critical habitat would be 

not prudent, we have determined that 

the designation of critical habitat is 

prudent for the Carolina madtom and 

the Neuse River waterdog. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the Carolina madtom and Neuse River 

waterdog is determinable. Our 

regulations at 50 CFR 424.12(a)(2) state 

that critical habitat is not determinable 

when one or both of the following 

situations exist: 

(i) Data sufficient to perform required 

analyses are lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

When critical habitat is not 

determinable, the Act allows the Service 

an additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where both species are 

located. This and other information 

represent the best scientific data 

available and led us to conclude that the 

designation of critical habitat is 

determinable for the Carolina madtom 

and Neuse River waterdog. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 were 

amended after the publication of the 

May 22, 2019, proposed rule; see 84 FR 

45020 (August 27, 2019). For this rule, 

we define ‘‘physical or biological 

features essential to the conservation of 

the species’’ as the features that support 

the life-history needs of the species, 

including, but not limited to, water 

characteristics, soil type, geological 

features, sites, prey, vegetation, 


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symbiotic species, or other features. A 

feature may be a single habitat 

characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkali soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or a particular level of 

nonnative species consistent with 

conservation needs of the listed species. 

The features may also be combinations 

of habitat characteristics and may 

encompass the relationship between 

characteristics or the necessary amount 

of a characteristic essential to support 

the life history of the species. 

In considering whether features are 

essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. These 

characteristics include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

Summary of Essential Physical or 

Biological Features 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical or biological features that 

are essential to the conservation of the 

species and which may require special 

management considerations or 

protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

The features may also be 

combinations of habitat characteristics 

and may encompass the relationship 

between characteristics or the necessary 

amount of a characteristic needed to 

support the life history of the species. In 

considering whether features are 

essential to the conservation of the 

species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. 

We derive the specific physical or 

biological features essential to the 

conservation of Carolina madtom from 

studies of this species’ habitat, ecology, 

and life history as described above. The 

primary habitat elements that influence 

resiliency of both species include water 

quality, water quantity, substrate, and 

habitat connectivity. Additional 

information can be found in the SSA 

report (Service 2021a) available on 

http://www.regulations.gov under 

Docket No. FWS–R4–ES–2018–0092. 

The Carolina madtom’s individual 

needs are summarized below in Table 3. 

TABLE 3—LIFE HISTORY AND RESOURCE NEEDS OF THE CAROLINA MADTOM

Life stage Resources and/or circumstances needed for individuals to 

complete each life stage 

Resource 

function 

(BFSD *) 

Information source 

Egg/Embryo—May–July ............ • Clear, flowing water .................................................................

• Sexually mature males and females. 

B —Burr et al. 1989, p. 75. 

• Appropriate spawning temperatures.

• Nest sites (rocks, bottles, shells, cobble).

• Adequate flow for oxygenation.

Hatchling—late summer ............ • Clear, flowing water ................................................................

• Cohesive schooling behavior to avoid predation 

B, S —Burr et al. 1989, p. 78. 

Juveniles—2–3 years; >2.5 

inches long.

• Clear, flowing water .................................................................

• Adequate food availability (midges, caddisflies, mayflies, 

etc.) 

F, S —Burr et al. 1989, p. 78. 

• Cover (shells, bottles, cans, tires, woody debris, etc.).

Adults—3+ years—>4 inches 

long.

• Clear, flowing water 1 to 3 feet deep ......................................

• Appropriate substrate (leaf litter, sand, gravel, cobble) 

F, S, D —Burr et al. 1989, p. 63 

—Midway et al. 2010, p. 326. 

• Adequate food availability (midges, caddisflies, mayflies, 

etc.).

• Cover (shells, bottles, cans, tires, woody debris, etc.).

* B = breeding; F = feeding; S = sheltering; D = dispersal. 

We have determined that the 

following physical or biological features 

are essential to the conservation of 

Carolina madtom: 

(1) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (i.e., channels that maintain 

lateral dimensions, longitudinal 

profiles, and sinuosity patterns over 

time without an aggrading or degrading 

bed elevation) with habitats that support 

a diversity of freshwater native fish 

(such as stable riffle-run-pool habitats 

that provide flow refuges consisting of 

silt-free gravel, small cobble, coarse 

sand, and leaf litter substrates) as well 

as abundant cover used for nesting. 

(2) Adequate flows, or a hydrologic 

flow regime (which includes the 

severity, frequency, duration, and 

seasonality of discharge over time), 

necessary to maintain instream habitats 

where the species is found and to 


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maintain connectivity of streams with 

the floodplain, allowing the exchange of 

nutrients and sediment for maintenance 

of the fish’s habitat, food availability, 

and ample oxygenated flow for 

spawning and nesting habitat. 

(3) Water quality (including, but not 

limited to, conductivity, hardness, 

turbidity, temperature, pH, ammonia, 

heavy metals, and chemical 

constituents) necessary to sustain 

natural physiological processes for 

normal behavior, growth, and viability 

of all life stages. 

(4) Aquatic macroinvertebrate prey 

items, which are typically dominated by 

larval midges, mayflies, caddisflies, 

dragonflies, and beetle larvae. 

We derive the specific physical or 

biological features essential to the 

conservation of Neuse River waterdog 

from studies of this species’ habitat, 

ecology, and life history as described 

above. The primary habitat elements 

that influence resiliency of both species 

include water quality, water quantity, 

substrate, and habitat connectivity. 

Additional information can be found in 

the SSA report (Service 2021b) available 

on http://www.regulations.gov under 

Docket No. FWS–R4–ES–2018–0092. 

The Neuse River waterdog’s individual 

needs are summarized below in Table 4. 

TABLE 4—LIFE HISTORY AND RESOURCE NEEDS OF THE NEUSE RIVER WATERDOG

Life stage Resources and/or circumstances needed for individuals to 

complete each life stage 

Resource 

function 

(BFSD *) 

Information source 

Egg/Embryo—May–June ........... • Clean, flowing water with moderate current (∼10–50 cm/sec) 

• Sexually mature males and females (∼6 years old) 

• Appropriate spawning temperatures (8–22 °C) 

• Nest sites (large flat rocks with gravel bottoms) 

• Adequate flow for oxygenation (7–9 ppm DO) 

B —Pudney et al. 1985, p. 54. 

—Cooper and Ashton 1985, p. 

5. 

—Braswell and Ashton 1985, 

p. 21. 

—Ashton 1985, p. 95. 

Hatchling—late summer ............ • Clean, non-turbid, flowing water (∼10–50 cm/sec) .................

• Adequate food availability 

B, S —Cooper and Ashton 1985, p. 

5. 

Post-hatchling Larvae—1–2 

inches long.

• Clean, flowing water (∼10–50 cm/sec) ....................................

• Adequate food availability (opportunistic feeding; primarily invertebrates) 

F, S —Ashton 1985, p. 95. 

Juveniles—Up to 5.5–6.5 years; 

2–4 inches long.

• Clean, flowing water (∼10–50 cm/sec) ....................................

• Adequate food availability (primarily invertebrates) 

• Cover (large rocks/boulders, outcrops, burrows) for retreat 

areas 

F, S —Ashton 1985, p. 95. 

—Braswell 2005, p. 867. 

Adults—6–30+ years—5–9 

inches long.

• Clean, flowing water deeper than 100 cm with flows 10–50 

cm/sec.

• Streams >15m wide 

• High dissolved oxygen (7–9 ppm) 

• Appropriate substrate (hard clay bottom with leaf litter, gravel, cobble) 

• Little to no siltation 

• Adequate food availability (aquatic and terrestrial invertebrates) 

• Cover (large rocks/boulders, outcrops, burrows) for retreat 

areas 

F, S, D —Braswell and Ashton 1985, 

pp. 13, 22, 28. 

—Ashton 1985, p. 95. 

—Braswell 2005, p. 868. 

* B = Breeding, F = Feeding, S = Sheltering, D = Dispersal. 

We have determined that the 

following physical or biological features 

are essential to the conservation of 

Neuse River waterdog: 

(1) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (i.e., channels that maintain 

lateral dimensions, longitudinal 

profiles, and sinuosity patterns over 

time without an aggrading or degrading 

bed elevation) with habitats that support 

a diversity of native aquatic fauna (such 

as stable riffle-run-pool habitats that 

provide flow refuges consisting of siltfree gravel, small cobble, coarse sand, 

and leaf litter substrates) as well as 

abundant cover and burrows used for 

nesting. 

(2) Adequate flows, or a hydrologic 

flow regime (which includes the 

severity, frequency, duration, and 

seasonality of discharge over time), 

necessary to maintain instream habitats 

where the species is found and to 

maintain connectivity of streams with 

the floodplain, allowing the exchange of 

nutrients and sediment for maintenance 

of the waterdog’s habitat, food 

availability, and ample oxygenated flow 

for spawning and nesting habitat. 

(3) Water quality (including, but not 

limited to, conductivity, hardness, 

turbidity, temperature, pH, ammonia, 

heavy metals, and chemical 

constituents) necessary to sustain 

natural physiological processes for 

normal behavior, growth, and viability 

of all life stages. 

(4) Invertebrate and fish prey items, 

which are typically hellgrammites, 

crayfish, mayflies, earthworms, snails, 

beetles, centipedes, slugs, and small 

fish. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features which are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

the Carolina madtom and Neuse River 

waterdog may require special 

management considerations or 

protections to reduce the following 

threats: (1) Urbanization of the 

landscape, including (but not limited to) 

land conversion for urban and 

commercial use, infrastructure (roads, 

bridges, utilities), and urban water uses 

(water supply reservoirs, wastewater 

treatment, etc.); (2) nutrient pollution 

and sedimentation from agricultural 

activities that impact water quantity and 

quality; (3) significant alteration of 

water quality; (4) improper forest 

management or clearcuts in riparian 

areas; (5) culvert and pipe installation 


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that create barriers to movement; (6) 

impacts from invasive species; (7) 

changes and shifts in seasonal 

precipitation patterns as a result of 

climate change; and (8) other watershed 

and floodplain disturbances that release 

sediments or nutrients into the water. 

Management activities that could 

ameliorate these threats include, but are 

not limited to: Use of BMPs designed to 

eliminate visible sedimentation, 

erosion, and bank side destruction; 

protection of riparian corridors and 

retention of sufficient canopy cover 

along banks; moderation of surface and 

ground water withdrawals to maintain 

natural flow regimes; increased use of 

stormwater management and reduction 

of stormwater flows into the systems; 

modernization of waste water treatment; 

and reduction of other watershed and 

floodplain disturbances that release 

sediments, pollutants, or nutrients into 

the water. 

Criteria Used To Identify Critical 

Habitat 

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

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. 

The current distribution of both 

species is much reduced from their 

historical distributions. We anticipate 

that recovery will require continued 

protection of existing populations and 

habitat, as well as ensuring there are 

adequate numbers of Neuse River 

waterdogs and Carolina madtoms in 

stable populations and that these 

populations occur over a wide 

geographic area. This strategy will help 

to ensure that catastrophic events, such 

as the effects of hurricanes (e.g., 

flooding that causes excessive 

sedimentation, nutrients, and debris to 

disrupt stream ecology), cannot 

simultaneously affect all known 

populations. Rangewide recovery 

considerations, such as maintaining 

existing genetic diversity and striving 

for representation of all major portions 

of the species’ current range, were 

considered in formulating this critical 

habitat designation. 

Sources of data for these critical 

habitat designations include multiple 

databases maintained by North Carolina 

(NC) State University, the NC Wildlife 

Resources Commission, and the NC 

Natural Heritage Program, as well as 

numerous survey reports on streams 

throughout the species’ range (see SSA 

reports). We have also reviewed 

available information that pertains to 

the habitat requirements of these 

species. Sources of information on 

habitat requirements include studies 

conducted at occupied sites and 

published in peer-reviewed articles, 

agency reports, and data collected 

during monitoring efforts (Service 

2021ab). 

Areas Occupied at the Time of Listing 

Carolina Madtom 

We identified stream channels up to 

bankfull height that currently support 

populations of the Carolina madtom. We 

defined ‘‘current’’ as stream channels 

with observations of the species from 

2010 to the present, as described in the 

SSA report and supported by the 

species’ life history and habitat stability 

over time (Service 2021a, p. 10). Due to 

the breadth and intensity of survey 

effort done for freshwater fishes 

throughout the known range of the 

species, it is reasonable to assume that 

streams with no positive surveys since 

2010 should not be considered occupied 

for the purpose of our analysis. 

However, this does not preclude the 

possibility of detecting the species in 

other locations upon subsequent 

surveys. For example, we received new 

data from the NCWRC indicating that 

one of the previously proposed 

unoccupied units (Contentnea Creek, 

Unit 6) has been confirmed to be 

occupied by the species. 

Specific habitat areas were delineated 

based on Natural Heritage element 

occurrences (EOs) following 

NatureServe’s occurrence delineation 

protocol for freshwater fish 

(NatureServe 2018). These EOs provide 

habitat for Carolina madtom 

subpopulations and are large enough to 

be self-sustaining over time, despite 

fluctuations in local conditions. The 

EOs contain stream reaches with 

interconnected waters so that fish can 

move between areas, at least during 

certain flows or seasons. In 2018, we 

learned that a live Carolina madtom was 

observed in Contentnea Creek, thus 

changing the occupancy of that stream 

to currently occupied. 

We consider the following streams to 

be occupied by the species at the time 

of listing: Upper Tar, Fishing Creek, 

Sandy-Swift Creek, Contentnea Creek, 

and the Little River (see the unit 

descriptions under Final Critical Habitat 

Designation, below). The critical habitat 

designation does not include all streams 

known to have been occupied by the 

species historically; instead, it includes 

only the occupied streams within the 

historical range that have also retained 

the physical or biological features that 

will allow for the maintenance and 

expansion of existing populations. 

Neuse River Waterdog 

We identified stream channels up to 

bankfull height that currently support 

populations of the Neuse River 

waterdog. As with the Carolina madtom, 

we defined ‘‘currently’’ as stream 

channels with observations of the 

species from 2010 to the present, as 

described in the SSA report and 

supported by the species’ life history 

and habitat stability over time (Service 

2021b, p. 14). Due to the breadth and 

intensity of survey effort done for 

amphibians throughout the known 

range of the species, it is reasonable to 

assume that streams with no positive 

surveys since 2010 should not be 

considered occupied for the purpose of 

our analysis. However, this does not 

preclude the possibility of detecting the 

species in other locations upon 

subsequent surveys. 

Specific occupied habitat areas were 

delineated based on Natural Heritage 

EOs following NatureServe’s occurrence 

delineation protocol for aquatic species 

(NatureServe 2018). These EOs provide 

habitat for Neuse River waterdog 

subpopulations and are large enough to 

be self-sustaining over time, despite 

fluctuations in local conditions. The 

EOs contain stream reaches with 

interconnected waters so that waterdogs 

can move between areas, at least during 

certain flows or seasons. 

Based on this information, we 

consider the following subbasins to be 

currently occupied by the species at the 

time of listing: Upper, Middle, and 

Lower Tar River subbasins; Sandy-Swift 

Creek; Fishing Creek subbasin; Upper, 

Middle, and Lower Neuse River 

subbasins; and the Trent River (see the 

unit descriptions under Final Critical 

Habitat Designation, below). The critical 

habitat designation does not include all 

streams known to have been occupied 

by the species historically; instead, it 

includes only the occupied streams 

within the historical range that have 

also retained the physical or biological 

features that will allow for the 

maintenance and expansion of existing 

populations. 

Areas Outside the Geographic Area 

Occupied at the Time of Listing 

We are designating two currently 

unoccupied units for the Carolina 

madtom that we determined to be 

essential for the conservation of the 


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species. Carolina madtoms have been 

completely extirpated from the Trent 

River basin, three of the five Neuse 

River units, and two of the five Tar 

River basin management units. There 

are currently only two occupied 

management units remaining in the 

Neuse River basin, and those 

populations were found to be in ‘‘low’’ 

and ‘‘very low’’ condition in our 

resiliency analysis. Having at least three 

resilient populations in both the Tar and 

Neuse River basins and at least one 

resilient population in the Trent River 

basin is essential for the conservation of 

the Carolina madtom because the 

unoccupied unit in the Neuse will 

contribute to redundancy and resiliency 

of that population, and the unoccupied 

Trent unit will add resiliency, 

redundancy, and representation where 

there currently are none in that 

population through propagation and 

reintroduction. Accordingly, we are 

designating one unoccupied unit in the 

Trent River basin and one in the Neuse 

River basin. Because there are already 

three populations in the Tar River basin, 

we do not consider an unoccupied unit 

in this basin to be essential for the 

species’ conservation. 

We are not designating any areas 

outside the geographical area currently 

occupied by the Neuse River waterdog 

because we did not find any unoccupied 

areas that were essential for the 

conservation of the species. The 

protection of the nine currently 

occupied MUs across the physiographic 

representation of the range will 

sufficiently reduce the risk of 

extinction, and by improving the 

resiliency of populations in these 

currently occupied streams, viability 

may increase to the point that the 

protections of the Act would no longer 

be necessary. 

Critical Habitat Maps 

Critical habitat for these aquatic 

species includes only stream channels 

up to bankfull height, where the stream 

base flow is contained within the 

channel. 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 Carolina madtom and Neuse 

River 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 included for 

designation as critical habitat. 

Therefore, a Federal action involving 

these lands would not trigger section 7 

consultation under the Act 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 

lands that we have determined are 

occupied at the time of listing (i.e., 

currently occupied) and that contain 

one or more of the physical or biological 

features that are essential to support 

life-history processes of the species. For 

the Carolina madtom, we have 

determined that both occupied and 

unoccupied areas are necessary to 

ensure the conservation of the species. 

Therefore, we have also identified and 

designated as critical habitat 

unoccupied areas that are essential for 

the conservation of the Carolina 

madtom. 

Units are designated based on one or 

more of the physical or biological 

features being present to support 

Carolina madtom or Neuse River 

waterdog life-history processes. Some 

units contain all of the identified 

physical or biological features and 

support multiple life-history processes. 

Some units contain only some of the 

physical or biological features necessary 

to support the Carolina madtom’s or 

Neuse River waterdog’s particular use of 

that habitat. 

The critical habitat designation is 

defined by the map or maps, as 

modified by any accompanying 

regulatory text, presented at the end of 

this document under Regulation 

Promulgation. We include more detailed 

information on the boundaries of the 

critical habitat designation in the 

discussion of individual units below. 

We will make the coordinates or plot 

points or both on which each map is 

based available to the public at http:// 

www.regulations.gov under Docket No. 

FWS–R4–ES–2018–0092, at http://

www.fws.gov/southeast, and at the 

Raleigh Ecological Services Field Office 

(see FOR FURTHER INFORMATION CONTACT, 

above). 

Final Critical Habitat Designation 

Carolina Madtom 

We are designating approximately 257 

river miles (414 river kilometers) in 7 

units in North Carolina as critical 

habitat for the Carolina madtom. The 

critical habitat areas we describe below 

constitute our current best assessment of 

areas that meet the definition of critical 

habitat for the Carolina madtom. Five of 

the units are currently occupied by the 

species and contain some or all of the 

physical or biological features essential 

to the conservation of the species. Two 

of the units are unoccupied but are 

essential to the conservation of the 

species. All units may require special 

management considerations or 

protection to address habitat 

degradation resulting from the 

cumulative impacts of land use change 

and associated watershed-level effects 

on water quality, water quantity, habitat 

connectivity, and instream habitat 

suitability. These stressors are primarily 

related to habitat changes: The buildup 

of fine sediments, the loss of flowing 

water, instream habitat fragmentation, 

and impairment of water quality; these 

are all exacerbated by climate change. 

Table 5 shows the name, land 

ownership of the riparian areas 

surrounding the units, and approximate 

river miles of the designated units for 

the Carolina madtom. Since all 

streambeds are navigable waters, the 

actual critical habitat units are all 

owned by the State of North Carolina. 

TABLE 5—CRITICAL HABITAT UNITS FOR THE CAROLINA MADTOM

Critical habitat unit 

Occupied at 

the time of 

listing 

Riparian ownership 

Length of unit 

in river miles 

(kilometers) 

Unit 1. TAR1—Upper Tar River ............................................. Yes ................. Private ................................................................. 26 (42) 

Unit 2. TAR2—Sandy/Swift Creek ......................................... Yes ................. Private; Easements ............................................ 66 (106) 

Unit 3. TAR3—Fishing Creek Subbasin ................................ Yes ................. Private; Easements; State .................................. 86 (138) 

Unit 4. NR1—Upper Neuse River Subbasin (Eno River) ...... No .................. Easements; State; Private .................................. 20 (32) 

Unit 5. NR2—Little River ........................................................ Yes ................. Private; Easements ............................................ 28 (45) 

Unit 6. NR3—Contentnea Creek ........................................... Yes ................. Private ................................................................. 15 (24) 


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TABLE 5—CRITICAL HABITAT UNITS FOR THE CAROLINA MADTOM—Continued 

Critical habitat unit 

Occupied at 

the time of 

listing 

Riparian ownership 

Length of unit 

in river miles 

(kilometers) 

Unit 7. TR1—Trent River ....................................................... No .................. Private ................................................................. 15 (24) 

Total ................................................................................ ........................ ............................................................................. 257 (414) 

Note: Area sizes may not sum due to rounding. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for the 

Carolina madtom, below. 

Tar Population 

Unit 1: TAR1—Upper Tar River 

Unit 1 consists of 26 mi (42 km) of the 

Upper Tar River, from the confluence 

with Sand Creek to the confluence with 

Sycamore Creek, in Granville, Vance, 

and Franklin Counties. Unit 1 is 

occupied by the species and contains all 

of the physical or biological features 

essential to the conservation of the 

species. The riparian land adjacent to 

the river is entirely privately owned. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land, or are 

discharged, into the waters, causing 

excessive growth of vegetation and 

leading to extremely low levels of 

dissolved oxygen. Based on 2014 data, 

seven stream reaches totaling 

approximately 38 miles (61.1 km) are 

‘‘impaired’’ (as identified on the State’s 

Clean Water Act section 303d list) in 

this basin. Indicators of impairment are 

low dissolved oxygen and low benthicmacroinvertebrate assessment scores, 

and the entire basin is classified as 

Nutrient Sensitive Waters (NCDEQ 

2016, pp. 115–117). There are 102 nonmajor NPDES discharges, including 

several package wastewater treatment 

plants (WWTPs) and biosolids facilities, 

and 3 major NPDES discharges (Oxford 

WWTP, Louisburg WWTP, and Franklin 

County WWTP) in this unit; with 

expansion of these facilities, or addition 

of new wastewater discharges, an 

additional threat to habitat exists in this 

unit. Special management focused on 

agricultural and forestry BMPs, 

implementing highest levels of 

wastewater treatment practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 2: TAR2—Sandy/Swift Creek 

Unit 2 consists of 66 mi (106 km) of 

Sandy and Swift Creeks, located 

downstream from NC561 to the 

confluence with the Tar River, in 

Edgecombe, Vance, Warren, Halifax, 

Franklin, and Nash Counties. This unit 

is occupied and contains all of the 

physical or biological features essential 

to the conservation of the species. The 

riparian land adjacent to this unit is 

predominantly privately owned (96 

percent), with some conservation 

parcels (2 percent) and State Game 

Lands (2 percent). 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land, or are 

discharged, into the waters, causing 

excessive growth of vegetation and 

leading to extremely low levels of 

dissolved oxygen; one stream reach 

totaling approximately 5 miles (8 km) is 

impaired in this unit. Special 

management focused on agricultural 

and forestry BMPs, maintenance of 

forested buffers, and connection of 

protected riparian corridors will benefit 

habitat for the species in this unit. 

Unit 3: TAR3—Fishing Creek Subbasin 

Unit 3 consists of approximately 86 

mi (138 km), including Fishing Creek 

from the confluence with Hogpen 

Branch to the confluence with the Tar 

River, and Little Fishing Creek from 

Medoc Mountain Road (SR1002) to the 

confluence with Fishing Creek, located 

in Edgecombe, Warren, Halifax, 

Franklin, and Nash Counties. This unit 

is occupied by the species and contains 

all of the physical or biological features 

essential to the conservation of the 

species. The riparian land adjacent to 

the unit is divided between privately 

owned parcels (89 percent), State Game 

Lands and State Park land (5 percent), 

and conservation parcels (6 percent). 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land, or are 

discharged, into the waters, causing 

excessive growth of vegetation and 

leading to extremely low levels of 

dissolved oxygen. Special management 

focused on agricultural and forestry 

BMPs, maintenance of forested buffers, 

and connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Neuse River Population 

Unit 4: NR1—Upper Neuse River 

Subbasin (Eno River) 

Unit 4 consists of approximately 20 

mi (32 km) of the Upper Neuse River 

extending from Eno River State Park 

downstream of NC70 to the confluence 

with Cabin Creek near Falls Lake 

impoundment, located in Orange and 

Durham Counties. This unit is not 

occupied by the species. 

There is one historical record of 

Carolina madtoms in this unit from 

1961, but follow-up surveys in 2011 

were not able to find any individuals. 

Although it is unoccupied, it does 

contain all of the physical or biological 

features essential for the conservation of 

the species. This unit is itself essential 

for the conservation of the species 

because it will provide for population 

expansion through propagation and 

reintroduction efforts, and will provide 

for resiliency in portions of known 

historical habitat that is necessary to 

increase the viability (resiliency, 

redundancy, and representation) of the 

species. Riparian land adjacent to the 

unit is almost entirely (79 percent) 

within State Park Lands, local 

government conservation parcels, and 

State Game Lands. 

Unit 5: NR2—Little River 

Unit 5 consists of 28 mi (45 km) of the 

Upper and Lower Little River from 

NC42 to Johnston/Wayne County line, 

located in Johnston County. This unit is 

occupied and contains all of the 

physical or biological features essential 

for the conservation of the species. The 

riparian land adjacent to the unit is 

predominantly privately owned (99 

percent) with some (1 percent) State 

Conservation ownership. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Four stream reaches totaling 

approximately 17 miles are impaired in 

the Little River. The designation of 

impairment is based primarily on low 


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benthic-macroinvertebrate assessment 

scores, low pH, and low dissolved 

oxygen. There are 32 non-major and no 

major NPDES discharges in this unit. 

Special management considerations in 

this unit include retrofitting stormwater 

systems, eliminating direct stormwater 

discharges, increasing and protecting 

existing open space, and maintaining 

connected riparian corridors. 

Unit 6: NR3—Contentnea Creek 

Unit 6 consists of approximately 15 

mi (24 km) of Contentnea Creek from 

Buckhorn Reservoir to Wiggins Mill 

Reservoir, located in Wilson County. 

This unit is occupied by the species, 

and contains all of the physical or 

biological features essential for the 

conservation of the species. The riparian 

land adjacent to this unit is entirely 

privately owned. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Two stream reaches totaling 

approximately 21 miles are impaired in 

Contentnea Creek. The designation of 

impairment is based primarily on low 

benthic-macroinvertebrate assessment 

scores. There are 3 major and 77 nonmajor NPDES discharges in this unit. 

Special management considerations in 

this unit include retrofitting stormwater 

systems, eliminating direct stormwater 

discharges, increasing and protecting 

existing open space, and maintaining 

connected riparian corridors. 

Trent Population 

Unit 7: TR1—Trent River 

Unit 7 consists of approximately 15 

mi (24 km) of the Trent River between 

the confluence with Cypress Creek and 

Beaver Creek, in Jones County. This unit 

is unoccupied by the species. The last 

known documentation of the species 

here was in 1986. Although it is 

unoccupied, this unit does contain all of 

the physical or biological features 

essential for the conservation of the 

species. This unit itself is essential for 

the conservation of the species because 

it will provide for population expansion 

through propagation and reintroduction, 

and will provide for resiliency in 

portions of known historical habitat that 

is necessary to increase the viability 

(resiliency, redundancy, and 

representation) of the species. All of the 

riparian land adjacent to this unit is 

privately owned. 

Neuse River Waterdog 

We are designating approximately 779 

miles (1,254 kilometers) in 18 units in 

North Carolina as critical habitat for the 

Neuse River waterdog. The critical 

habitat areas described below constitute 

our current best assessment of areas that 

meet the definition of critical habitat, 

and all units are considered currently 

occupied by the species. Those 18 units 

are: (1) Upper Tar River, (2) Upper 

Fishing Creek, (3) Bens Creek, (4) 

Fishing Creek Subbasin, (5) Sandy/Swift 

Creek, (6) Middle Tar River Subbasin, 

(7) Lower Tar River Subbasin, (8) Eno 

River, (9) Flat River, (10) Middle Creek, 

(11) Swift Creek, (12) Little River, (13) 

Mill Creek, (14) Middle Neuse River, 

(15) Contentnea Creek/Lower Neuse 

River Subbasin, (16) Swift Creek (Lower 

Neuse), (17) Trent River, and (18) 

Tuckahoe Swamp. Table 6 shows the 

name, land ownership of the riparian 

areas surrounding the units, and 

approximate river miles of the 

designated units for the Neuse River 

waterdog. Where appropriate, Table 6 

also notes the previous number for units 

for which the numbering has changed. 

TABLE 6—CRITICAL HABITAT UNITS FOR THE NEUSE RIVER WATERDOG

[All units are occupied] 

Critical habitat unit Riparian ownership River miles 

(Kilometers) 

Previous unit 

numbering 

Unit 1. TAR1—Upper Tar River ............................................. Private; Easements ............................................ 12.3 (19.8) Unit 1: TAR1. 

Unit 2. TAR2—Upper Fishing Creek ..................................... Private; Easements ............................................ 10.5 (17) Unit 2: TAR2. 

Unit 3. TAR3—Bens Creek .................................................... Private ................................................................. 2 (3.2) New Unit. 

Unit 4. TAR4a—Fishing Creek Subbasin .............................. Private; Easements; State .................................. 82.8 (133.3) Unit 3: TAR3a. 

Unit 5. TAR4b—Sandy/Swift Creek ....................................... Private; Easements; State .................................. 72.5 (116.8) Unit 4: TAR3b. 

Unit 6. TAR4c—Middle Tar River Subbasin .......................... Private; Easements; State .................................. 111 (179) Unit 5: TAR3c. 

Unit 7. TAR4d—Lower Tar River Subbasin ........................... Private; Easements; State .................................. 59.9 (96.3) Unit 6: TAR3d. 

Unit 8. NR1—Eno River ......................................................... Private; Easements; State .................................. 43.9 (70.6) Unit 7: NR1. 

Unit 9. NR2—Flat River ......................................................... Private; Easements ............................................ 15.2 (24.5) Unit 8: NR2. 

Unit 10. NR3—Middle Creek ................................................. Private; Easements; Local .................................. 30.8 (49.6) Unit 9: NR3. 

Unit 11. NR4—Swift Creek .................................................... Private ................................................................. 24 (38.6) Unit 10: NR4. 

Unit 12. NR5a—Little River .................................................... Private; Easements ............................................ 90.8 (146.1) Unit 11: NR5a. 

Unit 13. NR5b—Mill Creek ..................................................... Private; Easements ............................................ 20.8 (33.5) Unit 12: NR5b. 

Unit 14. NR5c—Middle Neuse River ..................................... Private; State; Easements .................................. 43.2 (69.5) Unit 13: NR5c. 

Unit 15. NR6—Contentnea Creek/Lower Neuse River 

Subbasin.

Private; Easements ............................................ 114.8 (184.8) Unit 14: NR6. 

Unit 16. NR7—Swift Creek (Lower Neuse) ........................... Private; Easements ............................................ 10.3 (16.5) Unit 15: NR7. 

Unit 17. TR1—Trent River ..................................................... Private ................................................................. 32.5 (52.4) Unit 16: TR1. 

Unit 18. TR2—Tuckahoe Swamp .......................................... Private ................................................................. 2 (3.2) New Unit. 

Total ................................................................................ ............................................................................. 779 (1,254) 

Note: Distances may not sum due to rounding. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for Neuse 

River waterdog, below. 

Tar Population 

Unit 1: TAR1—Upper Tar River 

Unit 1 consists of 12.3 miles (19.8 km) 

of the Tar River in Granville County 

from approximately SR1004 (Old NC 75) 

downstream to SR1622 (Cannady’s Mill 

Road). We revised Unit 1 to add 3.7 

miles (6 km) of the Upper Tar River 

based on a 2018 observation of Neuse 

River waterdog provided by NCWRC. 

The riparian land adjacent to this unit 

is primarily privately owned (80 

percent), with several conservation 

parcels or easements (20 percent). The 

unit contains all of the physical or 


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biological features essential for the 

conservation of the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land, or are 

discharged, into the waters, causing 

excessive growth of vegetation and 

leading to extremely low levels of 

dissolved oxygen. Based on 2014 data, 

seven stream reaches totaling 

approximately 38 miles (61.1 km) are 

impaired in this basin. Indicators of 

impairment are low dissolved oxygen 

and low benthic-macroinvertebrate 

assessment scores, and the entire basin 

is classified as Nutrient Sensitive 

Waters (NCDEQ 2016, pp. 115–117). 

There are 102 non-major NPDES 

discharges, including several package 

WWTPs and biosolids facilities, and 3 

major NPDES discharges (Oxford 

WWTP, Louisburg WWTP, and Franklin 

County WWTP) in this unit; with 

expansion of these facilities, or addition 

of new wastewater discharges, an 

additional threat to habitat exists in this 

unit. Special management focused on 

agricultural and forestry BMPs, 

implementing highest levels of 

wastewater treatment practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 2: TAR2—Upper Fishing Creek 

Unit 2 consists of 10.5 mi (16.9 km) 

of Upper Fishing Creek in Warren 

County. This unit extends from SR1118 

(No Bottom Drive) downstream to NC58. 

The riparian land adjacent to the unit is 

primarily privately owned (94 percent) 

with several conservation parcels or 

easements (6 percent). This unit 

contains all of the physical or biological 

features essential for the conservation of 

the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land or are 

discharged into the waters, causing 

excessive growth of microscopic or 

macroscopic vegetation and leading to 

extremely low levels of dissolved 

oxygen. Special management focused on 

agricultural and forestry BMPs, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 3: TAR3—Bens Creek 

Unit 3 consists of 2 miles (3.2 km) of 

Bens Creek in Warren County, North 

Carolina. The designated area begins 

approximately one mile upstream and 

ends approximately one mile 

downstream of SR1509 (Odell-Littleton 

Road). The addition of this unit is based 

on a 2019 observation of Neuse River 

waterdog provided by NCWRC. The 

riparian areas on either side of the river 

are privately owned. The unit contains 

all of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the creek and serve as indicators 

of other forms of pollution such as 

bacteria and toxins, reducing water 

quality for the species. Sources of these 

types of sediment and pollution are 

likely agricultural and silvicultural 

runoff. Special management focused on 

agricultural and forestry BMPs, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 4: TAR4a—Fishing Creek Subbasin 

Revised Unit 4 consists of 82.8 miles 

(133.3 km) of lower Little Fishing Creek 

approximately 1.6 miles (2.6 km) 

upstream of SR1214 (Silvertown Rd) 

downstream to the confluence with 

Fishing Creek, and including the 

mainstem of Fishing Creek from the 

Warren/Halifax County line to the 

confluence with the Tar River in 

Edgecombe County. The revision of Unit 

4 (previously Unit 3) adds 20 miles 

(32.3 km) of Fishing Creek based on a 

2019 observation of Neuse River 

waterdog provided by NCWRC. The 

riparian land adjacent to the unit 

includes private land (86 percent), 

several conservation parcels (6 percent), 

and State game lands (8 percent). The 

unit contains all of the physical or 

biological features essential for the 

conservation of the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land, or are 

discharged, into the waters, causing 

excessive growth of vegetation and 

leading to extremely low levels of 

dissolved oxygen. Special management 

focused on agricultural and forestry 

BMPs, maintenance of forested buffers, 

and connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 5: TAR4b—Sandy/Swift Creek 

Unit 5 consists of an approximately 

72.5 mi (116.8 km) segment of Sandy 

Creek downstream of SR 1451 (Leonard 

Road) to the confluence with the Tar 

River, including Red Bud Creek 

downstream of the Franklin/Nash 

county line to the confluence with Swift 

Creek. This unit is located in Warren, 

Franklin, Nash, and Edgecombe 

Counties. The riparian land adjacent to 

this unit includes private lands (97 

percent), conservation parcels (1 

percent), and State Game Lands (2 

percent). This unit contains all of the 

physical or biological features essential 

for the conservation of the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land or are 

discharged into the waters, causing 

excessive growth of microscopic or 

macroscopic vegetation and leading to 

extremely low levels of dissolved 

oxygen; there is one ‘‘impaired’’ stream 

reach totaling approximately 5 miles (8 

km) in this unit. Special management 

focused on agricultural and forestry 

BMPs, maintenance of forested buffers, 

and connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 6: TAR4c—Middle Tar River 

Subbasin 

Revised Unit 6 (previously Unit 5) 

consists of 111 miles (179 km) of the 

Middle Tar River from upstream of 

Highway 401 downstream to the 

confluence with Fishing Creek, 

including Stony Creek below SR1300 

(Boddies’ Millpond Rd), downstream to 

the confluence with the Tar River. This 

unit is located in Franklin, Nash, and 

Edgecombe Counties. We revised Unit 6 

(previously Unit 5) to add 11 miles (17.8 

km) of the upper reach of the Tar River 

based on a 2019 observation of Neuse 

River waterdog provided by a permitted 

private consultant. The riparian land 

adjacent to this unit is nearly all private 

lands (99 percent), with less than 1 

percent conservation parcels, local 

parks, and a research station. The unit 

contains all of the physical or biological 

features essential for the conservation of 

the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Excessive amounts of nitrogen and 

phosphorus run off the land or are 

discharged into the waters, causing too 

much growth of microscopic or 

macroscopic vegetation and leading to 

extremely low levels of dissolved 

oxygen. As a result, there are six 

impaired stream reaches totaling 

approximately 32 miles in the unit. 

Expansion or addition of new 

wastewater discharges are also a threat 

to habitat in this unit. Special 


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management focused on use of 

agricultural and forestry BMPs, 

implementation of highest levels of 

treatment of wastewater practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 7: TAR4d—Lower Tar River 

Subbasin 

Unit 7 consists of approximately 59.9 

mi (96.3 km) in the Lower Tar River 

Subbasin from the confluence with 

Fishing Creek downstream to the 

confluence with Barber Creek near 

SR1533 (Port Terminal Road). This 

includes portions of Town Creek below 

NC111 to the confluence with the Tar 

River, Otter Creek below SR1251 to the 

confluence with the Tar River, and 

Tyson Creek below SR1258 to the 

confluence with the Tar River. This unit 

is located in Edgecombe and Pitt 

Counties. The riparian land adjacent to 

this unit consists of private land (97 

percent), conservation parcels (2.5 

percent), and State Game Lands (0.5 

percent). This unit contains all of the 

physical or biological features essential 

for the conservation of the species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the creek and serve as indicators 

of other forms of pollution such as 

bacteria and toxins, reducing water 

quality for the species. Special 

management focused on use of 

agricultural and forestry BMPs, 

implementation of highest levels of 

treatment of wastewater practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Neuse Population 

Unit 8: NR1—Eno River 

Unit 8 consists of approximately 43.9 

mi (70.6 km) of the Eno River from 

NC86 downstream to the inundated 

portion of Falls Lake in Orange and 

Durham Counties. The riparian land 

adjacent to this unit includes private 

lands (61 percent), State Park Lands (25 

percent), local government conservation 

parcels (12 percent), and State Game 

Lands (2 percent). This unit contains all 

of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Large quantities of nutrients (especially 

nitrogen) contributed by fertilizers and 

animal waste washed from lawns, urban 

developed areas, farm fields, and animal 

operations are impacting aquatic 

ecosystems in this unit. More than 300 

permitted point-source sites discharge 

wastewater into streams and rivers in 

the basin. Development is also 

impacting areas along the Upper Neuse 

River. Special management 

considerations in this unit include using 

the highest available wastewater 

treatment technologies, retrofitting 

stormwater systems, eliminating direct 

stormwater discharges, increasing open 

space, maintaining connected riparian 

corridors, and treating invasive species 

(like hydrilla). 

Unit 9: NR2—Flat River 

Unit 9 is a 15.2-mi (24.5-km) segment 

of the Flat River from SR1739 (Harris 

Mill Road) downstream to the 

inundated portion of Falls Lake, located 

in Person and Durham Counties. The 

riparian land adjacent to this unit 

consists of some private land (49 

percent) and extensive conservation 

parcels (51 percent), including 

demonstration forest, recreation areas, 

and State Game Lands. This unit 

contains all of the physical or biological 

features essential for the conservation of 

the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Large quantities of nutrients (especially 

nitrogen) contributed by fertilizers and 

animal waste washed from lawns, urban 

developed areas, farm fields, and animal 

operations are impacting aquatic 

ecosystems in this unit. Permitted pointsource sites discharge wastewater into 

streams and rivers in the basin. 

Development is also impacting areas in 

the Upper Neuse River basin, including 

the Flat River. Special management 

considerations in this unit include using 

the highest available wastewater 

treatment technologies, retrofitting 

stormwater systems, eliminating direct 

stormwater discharges, increasing open 

space, maintaining connected riparian 

corridors, and treating invasive species 

(like hydrilla). 

Unit 10: NR3—Middle Creek 

Revised Unit 10 consists of 30.8 miles 

(49.6 km) of Middle Creek from 

Southeast Regional Park downstream to 

the confluence with Swift Creek in 

Wake and Johnston Counties, North 

Carolina. We revised Unit 10 to add 23.2 

miles (37.4 km) of Middle Creek based 

on two 2018 observations of Neuse 

River waterdog provided by NCWRC. 

The riparian land adjacent to this unit 

is predominantly privately owned (91 

percent) with a few conservation 

parcels, including the local park (9 

percent). The unit contains all of the 

physical or biological features essential 

for the conservation of the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Large quantities of nutrients (especially 

nitrogen) contributed by fertilizers and 

animal waste washed from lawns, urban 

developed areas, and farm fields are 

impacting aquatic ecosystems in this 

unit. Several hundred permitted pointsource sites discharge wastewater into 

streams and rivers in the basin. 

Development is also impacting areas in 

Middle Creek. Special management 

focused on use of agricultural and 

forestry BMPs, implementation of 

highest levels of treatment of 

wastewater practicable, maintenance of 

forested buffers, and connection of 

protected riparian corridors will benefit 

habitat for the species in this unit. 

Unit 11: NR4—Swift Creek 

Unit 11 is a 24-mi (38.6-km) stretch of 

Swift Creek from NC42 downstream to 

the confluence with the Neuse River, 

located in Johnston County. The 

riparian land adjacent to this unit is 

entirely privately owned. This unit 

contains all of the physical or biological 

features essential for the conservation of 

the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Large quantities of nutrients (especially 

nitrogen) contributed by fertilizers and 

animal waste washed from lawns, urban 

developed areas, farm fields, and animal 

operations are impacting aquatic 

ecosystems in this unit. Several 

hundred permitted point-source sites 

discharge wastewater into streams and 

rivers in the basin. Development is also 

impacting areas throughout Swift Creek. 

Special management considerations in 

this unit include using the highest 

available wastewater treatment 

technologies, retrofitting stormwater 

systems, eliminating direct stormwater 

discharges, increasing open space, and 

maintaining connected riparian 

corridors. 

Unit 12: NR5a—Little River 

Unit 12 is a 90.8-mi (146.1-km) 

segment of the Little River from near 

NC96 downstream to the confluence 

with the Neuse River, including Buffalo 

Creek from NC39 to the confluence with 

Little River, located in Franklin, Wake, 

Johnston, and Wayne Counties. The 

riparian land adjacent to this unit is 

predominantly privately owned (90 

percent) with some (10 percent) local 

municipal conservation parcels (Little 

River Reservoir). This unit contains all 


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of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Four stream reaches totaling 

approximately 17 miles are impaired in 

the Little River. The designation of 

impairment is based primarily on low 

benthic-macroinvertebrate assessment 

scores, low pH, and low dissolved 

oxygen. There are 32 non-major and no 

major NPDES discharges in this unit. 

Special management considerations in 

this unit include retrofitting stormwater 

systems, eliminating direct stormwater 

discharges, increasing and protecting 

existing open space, and maintaining 

connected riparian corridors. 

Unit 13: NR5b—Mill Creek 

Unit 13 is a 20.8-mi (33.5-km) 

segment of Mill Creek from upstream of 

US701 downstream to the confluence 

with the Neuse River located in 

Johnston and Wayne Counties. The 

riparian land adjacent to this unit is 

predominantly privately owned (95 

percent) with some conservation parcels 

(5 percent). This unit contains all of the 

physical or biological features essential 

for the conservation of the species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the creek and serve as indicators 

of other forms of pollution such as 

bacteria and toxins, reducing water 

quality for the species. Special 

management focused on use of 

agricultural and forestry BMPs, 

implementation of highest levels of 

treatment of wastewater practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 14: NR5c—Middle Neuse River 

Unit 14 is a 43.2-mi (69.5-km) 

segment of the Middle Neuse River from 

the confluence with Mill Creek 

downstream to the Wayne/Lenoir 

County line, located in Wayne County. 

The riparian land adjacent to this unit 

includes privately owned land (92 

percent), conservation parcels (0.95 

percent), State Park land (7 percent), 

and the Seymour Johnson Air Force 

Base (0.05 percent). The 2 miles of river 

segment located on the land owned by 

the Air Force Base is exempt from 

critical habitat under section 4(a)(3) of 

the Act (see Exemptions, below). This 

unit contains all of the physical or 

biological features essential for the 

conservation of the species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Large quantities of nutrients (especially 

nitrogen) contributed by fertilizers and 

animal waste washed from lawns, urban 

developed areas, farm fields, and animal 

operations are impacting aquatic 

ecosystems in this unit. More than 300 

permitted point-source sites discharge 

wastewater into streams and rivers in 

the basin. Development is also 

impacting areas along the Middle Neuse 

River. Special management focused on 

use of agricultural and forestry BMPs, 

implementation of highest levels of 

treatment of wastewater practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Unit 15: NR6—Contentnea Creek/Lower 

Neuse River Subbasin 

Unit 15 is an approximately 114.8-mi 

(184.8-km) reach, including Contentnea 

Creek from NC581 downstream to its 

confluence with the Neuse River, 

Nahunta Swamp from the Wayne/ 

Greene County line to the confluence 

with Contentnea Creek, and the Neuse 

River from the confluence with 

Contentnea Creek to the confluence 

with Pinetree Creek, located in Greene, 

Wilson, Wayne, Lenoir, Pitt, and Craven 

Counties. The riparian land adjacent to 

this unit is nearly all privately owned 

land (99 percent), with <1 percent 

conservation parcels. This unit contains 

all of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required within 

this unit to address a variety of threats. 

Two stream reaches totaling 

approximately 21 miles are impaired in 

Contentnea Creek, with 55 impaired 

stream miles in the entire unit. The 

designation of impairment is based 

primarily on low benthicmacroinvertebrate assessment scores, 

low pH, and low dissolved oxygen. 

There are 9 major and 195 non-major 

NPDES discharges in this unit. Special 

management considerations in this unit 

include retrofitting stormwater systems, 

eliminating direct stormwater 

discharges, increasing and protecting 

existing open space, and maintaining 

connected riparian corridors. 

Unit 16: NR7—Swift Creek (Lower 

Neuse) 

Unit 16 is a 10.3-mi (16.5-km) reach 

of Swift Creek from SR1931 (Beaver 

Camp Rd) downstream to SR1440 

(Streets Ferry Rd) located in Craven 

County. The riparian land adjacent to 

this unit is nearly all privately owned 

(99 percent) with some conservation 

parcels (1 percent). This unit contains 

all of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the creek and serve as indicators 

of other forms of pollution such as 

bacteria and toxins, reducing water 

quality for the species. Special 

management focused on use of 

agricultural and forestry BMPs, 

implementation of highest levels of 

treatment of wastewater practicable, 

maintenance of forested buffers, and 

connection of protected riparian 

corridors will benefit habitat for the 

species in this unit. 

Trent Population 

Unit 17: TR1—Trent River 

Revised Unit 17 consists of 32.5 miles 

(52.4 km) of Beaver Creek from SR1316 

(McDaniel Fork Rd) to the confluence 

with the Trent River, and Trent River 

from the confluence with Poplar Branch 

downstream to the SR1121 (Oak Grove 

Rd) crossing at the Marine Corps Cherry 

Point property, in Jones County. This 

unit was decreased to not include land 

owned by the Marine Corps at its Air 

Station (MCAS) Cherry Point Oak Grove 

Outlying Landing Field. The base’s 

integrated natural resources 

management plan (INRMP) includes 

implementing ecosystem management 

practices that support the conservation 

and management of at-risk herpetofauna 

species, including Neuse River 

waterdog, known to occur at MCAS 

Cherry Point (Tetra Tech 2012, p. C–10). 

The riparian land adjacent to this unit 

is privately owned. This unit contains 

all of the physical or biological features 

essential for the conservation of the 

species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the river and serve as indicators of 

other forms of pollution such as bacteria 

and toxins, reducing water quality for 

the species. Special management 

focused on use of agricultural and 

forestry BMPs, implementation of 

highest levels of treatment of 

wastewater practicable, maintenance of 

forested buffers, and connection of 

protected riparian corridors will benefit 

habitat for the species in this unit. 

Unit 18: TR2—Tuckahoe Swamp 

Unit 18 consists of 2 miles (3.2 km) 

of Tuckahoe Swamp in Jones County, 

North Carolina. The designated area 


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begins upstream of SR1142 

(Weyerhaeuser Road) to the confluence 

with the Trent River. The riparian areas 

on either side of the river are privately 

owned. This unit contains all of the 

physical or biological features essential 

for the conservation of the species. 

Special management considerations 

or protection may be required to address 

excess sediment and pollutants that 

enter the river and serve as indicators of 

other forms of pollution such as bacteria 

and toxins, reducing water quality for 

the species. Special management 

focused on use of agricultural and 

forestry BMPs, implementation of 

highest levels of treatment of 

wastewater practicable, maintenance of 

forested buffers, and connection of 

protected riparian corridors will benefit 

habitat for the species in this unit. 

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. 

We published a final rule revising the 

definition of destruction or adverse 

modification on August 27, 2019 (84 FR 

44976). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species. 

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, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

As a result of section 7 consultation, 

we generally 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 Service 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 set forth 

requirements for Federal agencies to 

reinitiate consultation on previously 

reviewed actions in several instances, 

including 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 as a whole 

for the conservation of the Carolina 

madtom or Neuse River waterdog. 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 

violate section 7(a)(2) of the Act by 

destroying or adversely modifying such 

habitat, or that may be affected by such 

designation. 

Activities that the Service may, 

during a consultation under section 

7(a)(2) of the Act, find are likely to 

destroy or adversely modify critical 

habitat include, but are not limited to: 

(1) Actions that would alter the 

minimum flow or the existing flow 

regime. Such activities could include, 

but are not limited to, impoundment, 

channelization, water diversion, water 

withdrawal, and hydropower 

generation. These activities could 

eliminate or reduce the habitat 

necessary for the growth and 

reproduction of the Carolina madtom 

and Neuse River waterdog by decreasing 

or altering flows to levels that would 

adversely affect the species’ abilities to 

complete their life cycles. 

(2) Actions that would significantly 

alter water chemistry or temperature. 

Such activities could include, but are 

not limited to, release of chemicals 

(including pharmaceuticals, metals, and 

salts), biological pollutants, or heated 

effluents into the surface water or 

connected groundwater at a point 

source or by dispersed release (nonpoint source). These activities could 

alter water conditions to levels that are 

beyond the tolerances of Carolina 

madtoms and Neuse River waterdogs 

and result in direct or cumulative 

adverse effects to these individuals and 

their life cycles. 

(3) Actions that would significantly 

increase sediment deposition within the 

stream channel. Such activities could 


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include, but are not limited to, excessive 

sedimentation from livestock grazing, 

road construction, channel alteration, 

incompatible forestry activities, 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 Carolina madtom 

and Neuse River waterdog by increasing 

the sediment deposition to levels that 

would adversely affect the species’ 

abilities to complete their life cycles. 

(4) Actions that would significantly 

increase the filamentous algal 

community within the stream channel. 

Such activities could include, but are 

not limited to, release of nutrients into 

the surface water or connected 

groundwater at a point source or by 

dispersed release (non-point source). 

These activities can result in excessive 

filamentous algae filling streams and 

reducing habitat for the Carolina 

madtom and Neuse River waterdog, 

degrading water quality during algal 

decay, and decreasing oxygen levels at 

night from algal respiration to levels 

below the tolerances of the fish or 

amphibian. 

(5) 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 Carolina madtom and 

Neuse River waterdog and/or their 

habitats. These actions can also lead to 

increased sedimentation and 

degradation in water quality to levels 

that are beyond the tolerances of the 

Carolina madtom or Neuse River 

waterdog. 

(6) Actions that result in the 

introduction, spread, or augmentation of 

nonnative aquatic species in occupied 

stream segments, or in stream segments 

that are hydrologically connected to 

occupied stream segments, even if those 

segments are occasionally intermittent, 

or introduction of other species that 

compete with or prey on the Carolina 

madtom or Neuse River waterdog. 

Possible actions could include, but are 

not limited to, stocking of nonnative 

fishes or other related actions. These 

activities can introduce parasites or 

disease to fish and amphibians; result in 

direct predation; or affect the growth, 

reproduction, and survival of madtoms 

and waterdogs. 

Finally, we note that for any of the six 

categories of actions outlined above, we 

and the relevant Federal agency may 

find that the agency’s anticipated 

actions affecting critical habitat may be 

appropriate to consider 

programmatically in section 7 

consultation. Programmatic 

consultations can be an efficient method 

for streamlining the consultation 

process, addressing an agency’s 

multiple similar, frequently occurring, 

or routine actions expected to be 

implemented in a given geographic area. 

Programmatic section 7 consultation can 

also be conducted for an agency’s 

proposed program, plan, policy, or 

regulation that provides a framework for 

future proposed actions. We are 

committed to responding to any 

agency’s request for a programmatic 

consultation, when appropriate and 

subject to the approval of the Service 

Director, as a means to streamline the 

regulatory process and avoid timeconsuming and inefficient multiple 

individual consultations. 

Exemptions 

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

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

(1) An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

(2) A statement of goals and priorities; 

(3) A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

(4) A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, 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 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. 

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. We analyzed INRMPs 

developed by military installations 

located within the ranges of the critical 

habitat designations for the Carolina 

madtom and Neuse River waterdog to 

determine if they meet the criteria for 

exemption from critical habitat under 

section 4(a)(3) of the Act. The following 

areas are Department of Defense (DoD) 

lands with completed, Service-approved 

INRMPs within the critical habitat 

designation for the Neuse River 

waterdog. 

Approved INRMPs 

We identified two areas within the 

critical habitat designation that consists 

of DoD lands with a completed, Serviceapproved INRMP. They are the Seymour 

Johnson Air Force Base (SJAFB), which 

is located on 3,220 acres in Goldsboro, 

North Carolina, and the Marine Corps 

Air Station Cherry Point Oak Grove 

Outlying Landing Field (MCAS Cherry 

Point OLF), which is located near 

Pollocksville, in Jones County, North 

Carolina. 

SJAFB is federally owned land that is 

managed by the Air Force and is subject 

to all Federal laws and regulations. The 

SJAFB INRMP was updated in 

September 2020, covers fiscal years 

2021–2026, and serves as the principal 

management plan governing all natural 

resource activities on the installation. 

Among the goals and objectives listed in 

the INRMP is prohibiting the 

introduction of exotic species, the 

preparation of a fish and wildlife 

management plan, the enforcement of 

game laws, the conservation of wildlife 

and migratory waterfowl, licenses and 

permits, regulating the use of chemical 

toxicants for controlling nuisance 

species, the protection of endangered 

and threatened species, and allowing 

public access to military property. 

Management actions that benefit the 

Neuse River waterdog include: Analyze 

the adequacy of existing stormwater 

facilities and BMPs; collect effluent data 

from each drainage basin within the 

context of an ecosystem goal for surface 

and ground water discharges from 

SJAFB to make it easier to evaluate the 

scientific, ecological, and economic 

value of current and proposed BMPs; 


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collect seasonal and annual data 

concerning stormwater runoff and 

nonpoint source pollution to evaluate 

the contribution and water quality of 

stormwater runoff from SJAFB to the 

surrounding watersheds; address 

watershed protection and enhancement 

of water quality, and regulate the 

amounts of water used in future 

landscaping and grounds maintenance 

activities, including the use of 

herbicides, pesticides, and fertilizers; 

and apply appropriate stormwater 

management practices. 

Two miles (3.2 km) of Unit 14 

(NR5c—Middle Neuse River) for the 

Neuse River waterdog are located within 

the area covered by this INRMP. Based 

on the above considerations, and in 

accordance with section 4(a)(3)(B)(i) of 

the Act, we have determined that the 

identified streams are subject to the 

SJAFB INRMP and that conservation 

efforts identified in the INRMP will 

provide a benefit to the Neuse River 

waterdog. Therefore, streams within this 

installation are exempt from critical 

habitat designation under section 4(a)(3) 

of the Act. We are not including 

approximately 2 river mi (3.2 km) of 

habitat in the Neuse River waterdog’s 

critical habitat designation because of 

this exemption. 

For the MCAS Cherry Point OLF, Unit 

17 (Trent River) was decreased to 

exempt land owned by the Marine 

Corps. The base’s INRMP includes a 

program for at-risk herpetofauna 

including establishment of a monitoring 

program, conducting surveys in highprobability habitat for new occurrences, 

collection of GIS location data, and 

implementation of ecosystem 

management practices that support the 

conservation and management of at-risk 

herpetofauna species, including the 

Neuse River waterdog, known to occur 

at MCAS Cherry Point (Tetra Tech 2012, 

p. C–10). Additional protection for atrisk herpetofauna known to occur at 

MCAS Cherry Point would be provided 

through NEPA-initiated individual 

project review and agency consultation, 

as necessary (Tetra Tech 2012, p. C–10). 

Based on these considerations, and in 

accordance with section 4(a)(3)(B)(i) of 

the Act, we have determined that 1.1 

miles (2 km) of the Trent River is subject 

to the MCAS Cherry Point OLF INRMP 

and that conservation efforts identified 

in the INRMP will provide a benefit to 

the Neuse River waterdog. Therefore, 

streams within this installation are 

exempt from critical habitat designation 

under section 4(a)(3) of the Act. We are 

not including 1.1 miles (2 km) of stream 

habitat in the Neuse River waterdog’s 

critical habitat designation because of 

this exemption. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

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 or she determines 

that the benefits of such exclusion 

outweigh the benefits of specifying such 

area as part of the critical habitat, unless 

he or 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 the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

We describe below the process that 

we undertook for taking into 

consideration each category of impacts 

and our analyses of the relevant 

impacts. In this final rule, we have not 

considered any areas for exclusion from 

critical habitat. 

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. To consider economic impacts 

of a designation, we prepared an 

incremental effects memorandum (IEM) 

and screening analysis which, together 

with our narrative and interpretation of 

effects, constitute our final economic 

analysis (FEA) of the critical habitat 

designation and related factors (IEc 

2018, entire). The analysis, dated 

September 14, 2018, was made available 

for public review from May 22, 2019, 

through July 22, 2019 (84 FR 23644). 

The DEA addressed probable economic 

impacts of critical habitat designation 

for the Carolina madtom and Neuse 

River waterdog. 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 

Carolina madtom and Neuse River 

waterdog is summarized below. 

The critical habitat designation for the 

Neuse River waterdog totals 

approximately 779 river miles (1,254 

river km), all of which are currently 

occupied by the species. In these areas, 

any actions that may affect the species 

or its habitat would likely also affect 

critical habitat, and it is unlikely that 

any additional conservation efforts 

would be required to address the 

adverse modification standard over and 

above those recommended as necessary 

to avoid jeopardizing the continued 

existence of the species. Therefore, the 

only additional costs that are expected 

in all of the critical habitat designation 

are administrative costs, due to the fact 

that this additional analysis will require 

time and resources by both the Federal 

action agency and the Service. 

The critical habitat designation for the 

Carolina madtom totals approximately 

257 river miles (414 river km), most of 

which is currently occupied by the 

species, but with two unoccupied units. 

In the occupied areas, any actions that 

may affect the species or its habitat 

would likely also affect critical habitat, 

and it is unlikely that any additional 

conservation efforts would be required 

to address the adverse modification 

standard over and above those 

recommended as necessary to avoid 

jeopardizing the continued existence of 

the species. Therefore, the only 

additional costs that are expected in the 

occupied critical habitat designation are 

administrative costs, due to the fact that 

this additional analysis will require 

time and resources by both the Federal 

action agency and the Service. Two of 

the Carolina madtom critical habitat 

units (Unit 4: NR1 and Unit 7: TR1) are 

unoccupied. One of these units (NR1) 

overlaps entirely with river miles 

designated as critical habitat for the 

Neuse River waterdog. The second 

unoccupied unit (TR1) overlaps 

partially with Neuse River waterdog 

critical habitat, but includes 

approximately 7 river miles that do not 

overlap (representing approximately 3 

percent of the Carolina madtom’s 

designated critical habitat). However, 

these river miles are located in a remote 

area where future section 7 

consultations are not anticipated. 

Our analysis shows that these costs 

would not reach the threshold of 

‘‘significant’’ under E.O. 12866 (IEc 

2018, entire). For the critical habitat 

designations for both species, we 

anticipate a maximum of 115 section 7 

consultations annually at a total 

incremental cost of approximately 

$270,000 per year. 

Exclusions Based on Economic Impacts 

As discussed above, the Service 

considered the economic impacts of the 

critical habitat designation, and the 


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Secretary is not exercising her 

discretion to exclude any areas from this 

designation of critical habitat for the 

Carolina madtom or Neuse River 

waterdog based on economic impacts. A 

copy of the IEM and screening analysis 

with supporting documents may be 

obtained by contacting the Raleigh 

Ecological Services Field Office (see 

ADDRESSES) or by downloading from the 

internet at http://www.regulations.gov. 

Exclusions Based on Impacts on 

National Security and Homeland 

Security 

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

Exemptions, above) 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, or 

another Federal agency has requested 

exclusion based on an assertion of 

national-security or homeland-security 

concerns. We have determined that, 

other than the land exempted under 

section 4(a)(3)(B)(i) of the Act based 

upon the existence of an approved 

INRMP (see Exemptions, above), the 

lands within the designation of critical 

habitat for Carolina madtom or Neuse 

River waterdog are not owned or 

managed by the DoD or Department of 

Homeland Security, and, therefore, we 

anticipate no impact on national 

security. Consequently, the Secretary is 

not exercising her discretion to exclude 

any areas from the final designation 

based on impacts on national security. 

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 habitat conservation 

plans (HCPs), safe harbor agreements, or 

candidate conservation agreements with 

assurances, or whether there are nonpermitted 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 

determined that there are currently no 

permitted conservation plans or other 

non-permitted conservation agreements 

or partnerships for the Carolina madtom 

or Neuse River waterdog, and the final 

critical habitat designations do not 

include any Tribal lands or trust 

resources. We anticipate no impact on 

Tribal lands, partnerships, or permitted 

or non-permitted plans or agreements 

from this critical habitat designation. 

Accordingly, the Secretary is not 

exercising her discretion to exclude any 

areas from the 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 (OMB) will 

review all significant rules. OIRA has 

determined that this rule is not 

significant. 

Executive Order (E.O.) 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 

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 

whether 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. 

Under the RFA, as amended, and as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate only the potential 

incremental impacts of rulemaking on 

those entities directly regulated by the 

rulemaking itself; in other words, the 

RFA does not require agencies 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 


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30726 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

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 will 

be directly regulated by this rulemaking, 

the Service certifies that this 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 E.O. 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 is relevant to this analysis. 

Thus, based on information in the 

economic analysis, energy-related 

impacts associated with Carolina 

madtom or Neuse River 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 does 

not apply, nor does 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 most of the 

lands adjacent to the streams being 

designated as critical habitat are owned 

by private landowners. These entities do 

not fit the definition of ‘‘small 

governmental jurisdiction.’’ The 148 

miles (238 km) for the Neuse River 

waterdog and 91 miles (146 km) for the 

Carolina madtom of riparian habitat 

owned by Federal, State, or local 

governments that we are designating as 

critical habitat in this rule are either 

lands managed for conservation or lands 

already developed. Consequently, we do 

not believe that the critical habitat 

designation will significantly or 

uniquely affect small government 

entities. 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 

designating critical habitat for the 

Carolina madtom and Neuse River 

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 concludes that the 

designations of critical habitat for 

Carolina madtom and Neuse River 

waterdog do 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 rule does not have 

significant Federalism effects. A 

federalism summary impact statement is 

not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of the critical 

habitat designation with, the 

appropriate State resource agencies. We 

did not receive comments from the 

States. 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 


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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30727 

governments, or for anyone else. As a 

result, the rule does not have substantial 

direct effects either on the State, or on 

the relationship between the national 

government and the State, 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 or 

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) will 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 

requirements of 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, this rule identifies 

the elements of physical or biological 

features essential to the conservation of 

the species. 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 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are 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 listing 

species and 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 have identified no Tribal interests 

that will be affected by this rule. 

References Cited 

A complete list of references cited in 

this rule is available on the internet at 

http://www.regulations.gov and upon 

request from the Raleigh Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this rule are 

the staff members of the U.S. Fish and 

Wildlife Service’s Species Assessment 

Team and the Raleigh 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: 

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

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.11(h), the List of 

Endangered and Threatened Wildlife, 

by: 

■ a. Adding an entry for ‘‘Waterdog, 

Neuse River’’ in alphabetical order 

under AMPHIBIANS; and 

■ b. Adding an entry for ‘‘Madtom, 

Carolina’’ in alphabetical order under 

FISHES. 

The additions read as set forth below. 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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

*******

Amphibians 


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30728 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

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

*******

Waterdog, Neuse River ... Necturus lewisi ............... Wherever found .............. T 86 FR [INSERT Federal Register PAGE WHERE 

THE DOCUMENT BEGINS], June 9, 2021; 50 

CFR 17.43(f); 4d 50 CFR 17.95(d).CH

Fishes 

*******

Madtom, Carolina ............ Noturus furiosus ............. Wherever found .............. E 86 FR [INSERT FEDERAL REGISTER PAGE 

WHERE THE DOCUMENT BEGINS], June 9, 

2021; 50 CFR 17.95(e).CH

* * * * * * * 

■ 3. Amend § 17.43 by adding paragraph 

(f) to read as set forth below: 

§ 17.43 Special rules—amphibians. 

* * * * * 

(f) Neuse River waterdog (Necturus 

lewisi). 

(1) Prohibitions. The following 

prohibitions that apply to endangered 

wildlife also apply to the Neuse River 

waterdog. Except as provided under 

paragraph (f)(2) of this section and 

§§ 17.4 and 17.5, it is unlawful for any 

person subject to the jurisdiction of the 

United States to commit, to attempt to 

commit, to solicit another to commit, or 

cause to be committed, any of the 

following acts in regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(2) Exceptions from prohibitions. In 

regard to this species, you may: 

(i) Conduct activities as authorized by 

a permit under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (c)(4) for endangered wildlife. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Take incidental to an otherwise 

lawful activity caused by: 

(A) Species restoration efforts by State 

wildlife agencies, including collection 

of broodstock, tissue collection for 

genetic analysis, captive propagation, 

and subsequent stocking into currently 

occupied and unoccupied areas within 

the historical range of the species, and 

follow-up monitoring. 

(B) Channel restoration projects that 

create natural, physically stable, 

ecologically functioning streams (or 

stream and wetland systems) that are 

reconnected with their groundwater 

aquifers. These projects can be 

accomplished using a variety of 

methods, but the desired outcome is a 

natural channel with low shear stress 

(force of water moving against the 

channel); bank heights that enable 

reconnection to the floodplain; a 

reconnection of surface and 

groundwater systems, resulting in 

perennial flows in the channel; riffles 

and pools composed of existing soil, 

rock, and wood instead of large 

imported materials; low compaction of 

soils within adjacent riparian areas; and 

inclusion of riparian wetlands. Secondto third-order, headwater streams 

reconstructed in this way offer suitable 

habitats for the Neuse River waterdog 

and contain stable channel features, 

such as pools, glides, runs, and riffles, 

which could be used by the species for 

spawning, rearing, growth, feeding, 

migration, and other normal behaviors. 

Prior to restoration action, surveys to 

determine presence of Neuse River 

waterdog must be performed, and if 

located, waterdogs must be relocated 

prior to project implementation. 

(C) Bank stabilization projects that use 

bioengineering methods to replace preexisting, bare, eroding stream banks 

with vegetated, stable stream banks, 

thereby reducing bank erosion and 

instream sedimentation and improving 

habitat conditions for the species. 

Following these bioengineering 

methods, stream banks may be 

stabilized using native species live 

stakes (live, vegetative cuttings inserted 

or tamped into the ground in a manner 

that allows the stake to take root and 

grow), native species live fascines (live 

branch cuttings, usually willows, bound 

together into long, cigar shaped 

bundles), or native species brush 

layering (cuttings or branches of easily 

rooted tree species layered between 

successive lifts of soil fill). Native 

species vegetation includes woody and 

herbaceous species appropriate for the 

region and habitat conditions. These 

methods will not include the sole use of 

quarried rock (rip-rap) or the use of rock 

baskets or gabion structures. 

(D) Forestry-related activities, 

including silvicultural practices, forest 

management work, and fire control 

tactics, that implement State-approved 

best management practices. In order for 

this exception to apply to forestryrelated activities, these best 

management practices must achieve all 

of the following: 

(1) Establish a streamside 

management zone alongside the margins 

of each waterway. 

(2) Restrain visible sedimentation 

caused by the forestry-related activity 

from entering the waterway. 

(3) Maintain native groundcover 

within the streamside management zone 

of the waterway, and promptly reestablish native groundcover if 

disturbed. 

(4) Limit installation of vehicle or 

equipment crossings of the waterway to 

only where necessary for the forestryrelated activity. Such crossings must: 

(i) Have erosion and sedimentation 

control measures installed to divert 

surface runoff away and restrain visible 

sediment from entering the waterway; 

(ii) Allow for movement of aquatic 

organisms within the waterway; and 

(iii) Have native groundcover applied 

and maintained through completion of 

the forestry-related activity. 

(5) Prohibit the use of tracked or 

wheeled vehicles for reforestation site 

preparation within the streamside 

management zone of the waterway. 

(6) Prohibit locating log decks, skid 

trails, new roads, and portable mill sites 

in the streamside management zone of 

the waterway. 

(7) Prohibit obstruction and 

impediment of the flow of water within 

the waterway, caused by direct 

deposition of debris or soil by the 

forestry-related activity. 


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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30729 

(8) Maintain shade over the waterway 

similar to that observed prior to the 

forestry-related activity. 

(9) Prohibit discharge of any solid 

waste, petroleum, pesticide, fertilizer, or 

other chemical into the waterway. 

(v) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 17.21(d)(2) for endangered 

wildlife. 

■ 4. Amend § 17.95 by: 

■ a. Adding to paragraph (d) an entry for 

‘‘Neuse River Waterdog (Necturus 

lewisi)’’ following the entry for ‘‘Black 

Warrior Waterdog (Necturus 

alabamensis)’’; and 

■ b. Adding to paragraph (e) an entry for 

‘‘Carolina Madtom (Noturus furiosus)’’ 

following the entry for ‘‘Conasauga 

Logperch (Percina jenkinsi)’’. 

The additions read as follows. 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(d) Amphibians. 

* * * * * 

NEUSE RIVER WATERDOG (Necturus 

lewisi) 

(1) Critical habitat units are depicted 

for Craven, Durham, Edgecombe, 

Franklin, Granville, Greene, Halifax, 

Johnston, Jones, Lenoir, Nash, Orange, 

Person, Pitt, Wake, Warren, Wayne, and 

Wilson Counties, North Carolina, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of Neuse River waterdog 

consist of the following components: 

(i) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (i.e., channels that maintain 

lateral dimensions, longitudinal 

profiles, and sinuosity patterns over 

time without an aggrading or degrading 

bed elevation) with habitats that support 

a diversity of native aquatic fauna (such 

as stable riffle-run-pool habitats that 

provide flow refuges consisting of siltfree gravel, small cobble, coarse sand, 

and leaf litter substrates) as well as 

abundant cover and burrows used for 

nesting. 

(ii) Adequate flows, or a hydrologic 

flow regime (which includes the 

severity, frequency, duration, and 

seasonality of discharge over time), 

necessary to maintain instream habitats 

where the species is found and to 

maintain connectivity of streams with 

the floodplain, allowing the exchange of 

nutrients and sediment for maintenance 

of the waterdog’s habitat, food 

availability, and ample oxygenated flow 

for spawning and nesting habitat. 

(iii) Water quality (including, but not 

limited to, conductivity, hardness, 

turbidity, temperature, pH, ammonia, 

heavy metals, and chemical 

constituents) necessary to sustain 

natural physiological processes for 

normal behavior, growth, and viability 

of all life stages. 

(iv) Invertebrate and fish prey items, 

which are typically hellgrammites, 

crayfish, mayflies, earthworms, snails, 

beetles, centipedes, slugs, and small 

fish. 

(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 July 9, 2021. 

(4) Critical habitat map units. Data 

layers defining map units were created 

by overlaying Natural Heritage Element 

Occurrence data and U.S. Geological 

Survey (USGS) hydrologic data for 

stream reaches. The hydrologic data 

used in the critical habitat maps were 

extracted from the USGS 1:1M scale 

nationwide hydrologic layer (https://

nationalmap.gov/small_scale/mld/ 

1nethyd.html) with a projection of 

EPSG:4269–NAD83 Geographic. The 

North Carolina Natural Heritage 

program’s species presence data were 

used to select specific stream segments 

for inclusion in the critical habitat layer. 

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 

http://www.regulations.gov under 

Docket No. FWS–R4–ES–2018–0092 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. 

(5) Note: Index map follows: 


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30730 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(6) Unit 1: TAR1–Upper Tar River, 

Granville County, North Carolina. 

(i) This unit consists of 12.3 river 

miles (19.8 river kilometers) of the 

Upper Tar River from approximately 

SR1004 (Old NC 75) downstream to 

SR1622 (Cannady’s Mill Road). Unit 1 

includes stream habitat up to bankfull 

height. 

(ii) Map of Unit 1 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.000</GPH>

Index Map of Critical Habitat Units for Neuse River Waterdog 

--14 

.. /Unit 

,,---.___---I 

0 20 40 80 Miles 

~ Critical Habitat 

0 30 60 120 Kilometers [----! State Boundaries 

County Boundaries 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30731 

(7) Unit 2: TAR2–Upper Fishing 

Creek, Warren County, North Carolina. 

(i) This unit consists of 10.5 miles (17 

kilometers) of Upper Fishing Creek from 

SR1118 (No Bottom Drive) downstream 

to NC58. Unit 2 includes stream habitat 

up to bankfull height. 

(ii) Map of Unit 2 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.001</GPH>

Map of Unit 1: TAR1 - Upper Tar River Critical Habitat Unit for Neuse River Waterdog 

Granville County, NC 

0 1.75 3.5 

0 2.75 5.5 

7 Miles 

11 Kilometers 

----. ___ , MajorRivers 

~ Critical Habitat 

County Boundaries 

~ City Boundaries 

,, ,, 

/ -:•"~} 

\lance County, NC r~ -~.~ .. ,·'"'t.,J •, 

,, 

( 

'·~·~~ ,-' 

·--~-

//rankDn County, NC 
30732 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(8) Unit 3: TAR3–Bens Creek, Warren 

County, North Carolina. 

(i) This unit consists of 2 miles (3.2 

km) of Bens Creek beginning 

approximately one mile upstream and 

ending approximately one mile 

downstream of SR1509 (Odell-Littleton 

Road). Unit 3 includes stream habitat up 

to bankfull height. 

(ii) Map of Unit 3 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.002</GPH>

Map of Unit 2: TAR2 - Upper Fishing Creek Critical Habitat Unit for Neuse River Waterdog 

\ 

'· 

\ 'M!rren County, NC 

' .. , ... 

\ .... ,'_ 

'\ 

-~ ... ~r\ 

, ... f ',.. ·········\ ........................ /··· . '·t .•. ···· 

I-- --- Franklin ~unly, NC 

0 2 4 

D 3 B 

B Milas 

12 Kilometers 

···-.. __ . Major Rivers 

""""Critical Habitat 

County Boundaries 

~ City Boundaries 

\ 

·~~~ .... ".s_~~---

Halifax County:NC 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30733 

(9) Unit 4: TAR4a–Fishing Creek 

Subbasin, Edgecombe, Halifax, Nash, 

and Warren Counties, North Carolina; 

Unit 5: TAR4b–Sandy/Swift Creek, 

Edgecombe, Franklin, Nash, and Warren 

Counties, North Carolina; Unit 6: 

TAR4c–Middle Tar River Subbasin, 

Edgecombe, Franklin, and Nash 

Counties, North Carolina; and Unit 7: 

TAR4d–Lower Tar River Subbasin, 

Edgecombe and Pitt Counties, North 

Carolina. 

(i) Units 4, 5, 6, and 7 include stream 

habitat up to bankfull height. 

(ii) Unit 4 consists of 82.8 miles 

(133.3 km) of lower Little Fishing Creek 

approximately 1.6 miles (2.6 km) 

upstream of SR1214 (Silvertown Rd) 

downstream to the confluence with 

Fishing Creek, and including the 

mainstem of Fishing Creek from the 

Warren/Halifax County line to the 

confluence with the Tar River in 

Edgecombe County. 

(iii) Unit 5 consists of 72.5 miles 

(116.8 kilometers) of Sandy Creek 

downstream of SR 1451 (Leonard Road) 

to the confluence with the Tar River, 

including Red Bud Creek downstream of 

the Franklin/Nash county line to the 

confluence with Swift Creek. 

(iv) Unit 6 consists of 111 miles (179 

kilometers) of the Middle Tar River from 

upstream of Highway 401 downstream 

to the confluence with Fishing Creek, 

including Stony Creek below SR1300 

(Boddies’ Millpond Rd), downstream to 

the confluence with the Tar River. 

(v) Unit 7 consists of 59.9 miles (96.3 

kilometers) in the Lower Tar River 

Subbasin from the confluence with 

Fishing Creek downstream to the 

confluence with Barber Creek near 

SR1533 (Port Terminal Road). This unit 

includes portions of Town Creek below 

NC111 to the confluence with the Tar 

River, Otter Creek below SR1251 to the 

confluence with the Tar River, and 

Tyson Creek below SR1258 to the 

confluence with the Tar River. 

(vi) Map of Units 4, 5, 6, and 7 

follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.003</GPH>

0 

0 

Map of Unit 3: TAR3 - Ben's Creek Critical Habitat Unit for Neuse River Waterdog 

/ 

J 

I , 

0.5 

0.75 

2 Miles 

1.5 3 Kilometers """-'Critical 

,-,,.__, NHDHydrology 

Habitat 

~ 'fD ~ 

County Boundaries 

~ City Boundaries 
30734 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(10) Unit 8: NR1–Eno River, Durham 

and Orange Counties, North Carolina. 

(i) This unit consists of 43.9 miles 

(70.6 kilometers) of the Eno River from 

NC86 downstream to the inundated 

portion of Falls Lake. Unit 8 includes 

stream habitat up to bankfull height. 

(ii) Map of Unit 8 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.004</GPH>

Map of Units 4 - 7= TAR4 - Middle/Lower Tar River Subbasins Critical Habitat Units for 

Neuse RiverWaterdog '•. 

~nee Cdunty/~~ ' \ 

' 

',, 

\_·~ .. 

~-,__ .. \":..., ' i 

F unti,Nc·· 

~ -..... •;,, I -...... , __ 

', . ~--~-... ,_ 

,. 

\ 

/ ,: 

. '·-) 

·--; 

ston Couii~, NC 

'•,, '·<'.'.::-..,:.\ 

0 5 10 

0 10 20 

20 MIies 

40 Kilometers 

"" Critical Habitat 

•"•,, __ • Major Rivers 

~ City Boundaries 

Bertiio County, NC 

"'~\~ 

Marlin C;;.;rify: NC'· 

~;' 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30735 

(11) Unit 9: NR2–Flat River, Durham 

and Person Counties, North Carolina. 

(i) This unit consists of 15.2 miles 

(24.5 kilometers) of the Flat River from 

SR1739 (Harris Mill Road) downstream 

to the inundated portion of Falls Lake. 

Unit 9 includes stream habitat up to 

bankfull height. 

(ii) Map of Unit 9 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.005</GPH>

0 3 

0 4.25 

Map of Unit 8: NR1 - Eno River Subbasin Critical Habitat Unit for 

Neuse River Waterdog 

C&swell County, NC 

6 

8.5 f7 Kilometers 

Person Counly; NC 

"""Critical Habitat 

County Boundaries 

~ City Boundaries 
30736 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(12) Unit 10: NR3–Middle Creek, 

Johnston and Wake Counties, North 

Carolina. 

(i) This unit consists of 30.8 miles 

(49.6 km) of Middle Creek from 

Southeast Regional Park downstream to 

the confluence with Swift Creek. Unit 

10 includes stream habitat up to 

bankfull height. 

(ii) Map of Unit 10 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.006</GPH>

0 1.5 

0 2.25 

Map of Unit 9: NR2 - Flat River Subbasin Critical Habitat Unit for 

Neuse River Waterdog 

3 

4.5 

'\, 

/,,-~, 

"-'>n county, ;j) 

~:·--------------! 

', 

6Miles 

""Critical Habitat 

,.~ .. , __ . Major Rivers 

9 Kilometers County Boundaries 

~ City Boundaries 

Granvlll}:nty, NC 

/ 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30737 

(13) Unit 11: NR4–Swift Creek, 

Johnston County, North Carolina. 

(i) This unit consists of 24 miles (38.6 

kilometers) of Swift Creek from NC42 

downstream to the confluence with the 

Neuse River. Unit 11 includes stream 

habitat up to bankfull height. 

(ii) Map of Unit 11 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.007</GPH>

0 

0 

Map of Unit 10: NR3 - Middle Creek Subbasin Critical Habitat Unit for 

Neuse River Waterdog 

·, 

\ 

W.yne eo/,,,y, NC 

4 8 16 Miles 

5 10 20 Kilometers 

"'Cri1ica1Habitat 

, .... , •. , MajorRillers 

~ a ~ Counly Boundaries ~ ~ City Boundaries 
30738 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(14) Unit 12: NR5a–Little River, 

Franklin, Johnston, Wake, and Wayne 

Counties, North Carolina; Unit 13: 

NR5b–Mill Creek, Johnston and Wayne 

Counties, North Carolina; and Unit 14: 

NR5c–Middle Neuse River, Wayne 

County, North Carolina. 

(i) Units 12, 13, and 14 include stream 

habitat up to bankfull height. 

(ii) Unit 12 consists of 90.8 miles 

(146.1 kilometers) of the Little River 

from near NC96 in Wake County 

downstream to the confluence with the 

Neuse River, including Buffalo Creek 

from NC39 to the confluence with the 

Little River. 

(iii) Unit 13 consists of 20.8 miles 

(33.5 kilometers) of Mill Creek from 

upstream of US701 downstream to the 

confluence with the Neuse River. 

(iv) Unit 14 consists of 43.2 miles 

(69.5 kilometers) of the Middle Neuse 

River from the confluence with Mill 

Creek downstream to the Wayne/Lenoir 

County line. 

(v) Map of Units 12, 13, and 14 

follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.008</GPH>

Hamett 

0 

0 

Map of Unit 11: NR4 - Swift Creek Sub basin Critical Habitat Unit for 

Neuse River Waterdog 

,NC 

2 4 6Miles 

""Critical Habitat 

,··-. ___ , Major Rivers 

2.75 5.5 11 Kilometllrs 

~ City Boundaries 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30739 

(15) Unit 15: NR6–Contentnea Creek/ 

Lower Neuse River Subbasin, Craven, 

Greene, Lenoir, Pitt, Wayne, and Wilson 

Counties, North Carolina. 

(i) This unit consists of 114.8 miles 

(184.8 kilometers) of Contentnea Creek 

from NC581 downstream to its 

confluence with the Neuse River, 

Nahunta Swamp from the Wayne/ 

Greene County line to the confluence 

with Contentnea Creek, and the Neuse 

River from the confluence with 

Contentnea Creek to the confluence 

with Pinetree Creek. Unit 15 includes 

stream habitat up to bankfull height. 

(ii) Map of Unit 15 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.009</GPH>

Map of Units 12 -14: NR5 - Middle Neuse River Subbasins Critical Habitat Units for 

Neuse River Waterdog 

0 5 10 

0 10 20 

20 Miles 

40 Kilometers 

"r.;count NC 

""Critical Habitat 

···--. __ • Major Rivers 

- Seymour Johnson AFB 

County Boundaries 

~ City Boundaries 
30740 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(16) Unit 16: NR7–Swift Creek (Lower 

Neuse), Craven County, North Carolina. 

(i) This unit consists of 10.3 miles 

(16.5 rier kilometers) of Swift Creek 

from SR1931 (Beaver Camp Rd) 

downstream to SR1440 (Streets Ferry 

Rd). Unit 16 includes stream habitat up 

to bankfull height. 

(ii) Map of Unit 16 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.010</GPH>

0 

I 

0 

Map of Unit 15: NR6 - Contentnea Creek/Lower Neuse River Subbasin 

Critical Habitat Unit for Neuse River Waterdog 

·NC 

5 10 20Miles 

I I I I 

5 10 20 Kilometers 

"""Critical Habitat 

•• ·• •• __ , Major Rivers 

County Boundaries 

~ City Boundaries 

--") 

.. 

,, ••. .,- Martin County, NC 

-: __ ~,_, Beaufort County: Ng 

·•, ·, '-~, •~v •--

Beaufort County, NC ,. r 

"--... (r--' •,. ····1 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30741 

(17) Unit 17: TR1–Trent River, Jones 

County, North Carolina. 

(i) This unit consists of 32.5 miles 

(52.4 kilometers) of Beaver Creek from 

SR1316 (McDaniel Fork Rd) to the 

confluence with the Trent River, and 

Trent River from the confluence with 

Poplar Branch downstream to SR1121 

(Oak Grove Rd) crossing at the Marine 

Corps Cherry Point property. Unit 17 

includes stream habitat up to bankfull 

height. 

(ii) Map of Unit 17 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.011</GPH>

0 2 4 

0 2.75 5.5 

Map of Unit 16: NR7-Swift.Creek (Lower Neuse) 

Critical Habitat Unit for Neuse River Waterdog 

/ 

~ County, NC 

'. 

8Miles 

11 Kilometers 

""'Critical Habitat 

••·• •. __ , Major Rivers 

County Boundaries 

~ City Boundaries 

Beaufort County, NC 
30742 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(18) Unit 18: TR2–Tuckahoe Swamp, 

Jones County, North Carolina. 

(i) This unit consists of 2 miles (3.2 

km) of Tuckahoe Swamp in Jones 

County, North Carolina. Unit 18 begins 

upstream of SR1142 (Weyerhaeuser 

Road) to the confluence with the Trent 

River. Unit 18 includes stream habitat 

up to bankfull height. 

(ii) Map of Unit 18 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.012</GPH>

,-

Map of Unit 17: TR1 - Trent River Subbasin 

Critical Habitat Unit for Neuse River Waterdog 

}' 

~-·" 

Dupli~ County: NC Onslow County, NC 

, ... ____ .,~ 

0 4 8 

0 5 10 

16 Miles 

20 Kilometers 

"'-' Critical Habitat 

,--,,, __ , Major Rivers 

- MCASCP Oak Grove OLF 

County Boundaries 

~ City Boundaries 

,-~✓ 

~~;;..--

..,•~-",.. 

Craven County, NC 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30743 

(e) Fishes. 

* * * * * 

Carolina Madtom (Noturus Furiosus) 

(1) Critical habitat units are depicted 

for Durham, Edgecombe, Franklin, 

Granville, Halifax, Johnston, Jones, 

Nash, Orange, Vance, Warren, and 

Wilson Counties, North Carolina, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of the Carolina madtom 

consist of the following components: 

(i) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (i.e., channels that maintain 

lateral dimensions, longitudinal 

profiles, and sinuosity patterns over 

time without an aggrading or degrading 

bed elevation) with habitats that support 

a diversity of freshwater native fish 

(such as stable riffle-run-pool habitats 

that provide flow refuges consisting of 

silt-free gravel, small cobble, coarse 

sand, and leaf litter substrates) as well 

as abundant cover used for nesting. 

(ii) Adequate flows, or a hydrologic 

flow regime (which includes the 

severity, frequency, duration, and 

seasonality of discharge over time), 

necessary to maintain instream habitats 

where the species is found and to 

maintain connectivity of streams with 

the floodplain, allowing the exchange of 

nutrients and sediment for maintenance 

of the fish’s habitat, food availability, 

and ample oxygenated flow for 

spawning and nesting habitat. 

(iii) Water quality (including, but not 

limited to, conductivity, hardness, 

turbidity, temperature, pH, ammonia, 

heavy metals, and chemical 

constituents) necessary to sustain 

natural physiological processes for 

normal behavior, growth, and viability 

of all life stages. 

(iv) Aquatic macroinvertebrate prey 

items, which are typically dominated by 

larval midges, mayflies, caddisflies, 

dragonflies, and beetle larvae. 

(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 July 9, 2021. 

(4) Critical habitat map units. Data 

layers defining map units were created 

by overlaying Natural Heritage Element 

Occurrence data and U.S. Geological 

Survey (USGS) hydrologic data for 

stream reaches. The hydrologic data 

used in the critical habitat maps were 

extracted from the USGS 1:1M scale 

nationwide hydrologic layer (https://

nationalmap.gov/small_scale/mld/ 

1nethyd.html) with a projection of 

EPSG:4269–NAD83 Geographic. The 

North Carolina Natural Heritage 

program’s species presence data were 

used to select specific stream segments 

for inclusion in the critical habitat layer. 

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 

http://www.regulations.gov under 

Docket No. FWS–R4–ES–2018–0092 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. 

(5) Note: Index map follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.013</GPH>

0 2 

0 1.75 3,5 

Map of Unit 18: TR2-Tuckahoe Swamp 

Critical Habitat Unit for Neuse RiverWaterdog 

,/---~-,." 

,., 

4 Miles 

7 Kilometers 

""-'CrillcalHabilat ~ Q ···•,, __ . Major Rivers • 

County Boundaries 

~ City Boundaries 
30744 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(6) Unit 1: TAR1–Upper Tar River, 

Franklin, Granville, and Vance 

Counties, North Carolina. 

(i) This unit consists of 26 river miles 

(42 river kilometers) of the Upper Tar 

River from the confluence with Sand 

Creek to the confluence with Sycamore 

Creek. Unit 1 includes stream habitat up 

to bankfull height. 

(ii) Map of Unit 1 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.014</GPH>

Index Map of Critical Habitat Units for Carolina Madtom 

No,-th Carolinla 

I 

/ 

/ 

,,_,'"'1: ... ~. ~ -"'-->~•r z 

20 

30 

40 

60 

80 Miles 

120 KHometers 

~ Critical Habitat 

State Boundaries 

I County Boundaries 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30745 

(7) Unit 2: TAR2–Sandy/Swift Creek, 

Edgecombe, Franklin, Halifax, Nash, 

Vance, and Warren Counties, North 

Carolina. 

(i) This unit consists of 66 river miles 

(106 river kilometers) of Sandy and 

Swift Creeks, located downstream from 

NC561 to the confluence with the Tar 

River. Unit 2 includes stream habitat up 

to bankfull height. 

(ii) Map of Unit 2 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.015</GPH>

Map of Unit 1 - Upper Tar River Critical Habitat Unit for Carolina Madtom 

GranviHe County, NC 

/ :' 

_I / 

2.5 5 

3.5 7 

10Miles 

14 Kilometers 

Hande~n. NC 

Franklih County, NC 

--·-., __ , MajorRiveJS 

""-" Critical Habitat 

i County Boundaries 

~ City Boundaries 
30746 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(8) Unit 3: TAR3–Fishing Creek 

Subbasin, Edgecombe, Franklin, Halifax, 

Nash, and Warren Counties, North 

Carolina. 

(i) This unit consists of 86 river miles 

(138 river kilometers) of Fishing Creek 

from the confluence with Hogpen 

Branch to the confluence with the Tar 

River, and Little Fishing Creek from 

Medoc Mountain Road (SR1002) to the 

confluence with Fishing Creek. Unit 3 

includes stream habitat up to bankfull 

height. 

(ii) Map of Unit 3 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.016</GPH>

Map of Unit 2 - Sandy/Swift Creek Critical Habitat Unit for Carolina Madtom 

W:unm County, NC 

,, 

Franl<Nn County, NC 

./ 

Toisnot Swamp -·~ -,---. 

4.25 8.5 

5 10 

17 Miles 

20 Kilometers 

Hafifax County, NC 

·· · ··, ... Major Rivers 

""""'Critical Habitat 

l County Boundaries 

~ City Boundaries 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30747 

(9) Unit 4: NR1–Upper Neuse River 

Subbasin (Eno River), Durham and 

Orange Counties, North Carolina. 

(i) This unit consists of 20 river miles 

(32 river kilometers) of the Upper Neuse 

River extending from Eno River State 

Park downstream of NC70 to the 

confluence with Cabin Creek near Falls 

Lake impoundment. Unit 4 includes 

stream habitat up to bankfull height. 

(ii) Map of Unit 4 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.017</GPH>

Map of Unit 3 - Fishing Creek Subbasin Critical Habitat Unit for Carolina Madtom 

·----L_ • .---

~\ / 'Warren County, NC 

\\ 

'· "'L.,,.,..,._r-'.,_.,.._~-, -.... _ 

0 4.25 8.5 17 Miles 

0 10 20 Kilometers 

'•; 

\,. 

"\---~"'I, 

'-

_, \ 

,.--.~-:·. 

-- -., Edgecombe County, NC 

~:/~\_,- _.:,_,._ {,---~ ,r-·~\ .. -~- 'r: 

--,,,.,r~~ 

.--• .• __ , Major Rivers 

~ Critical Habitat 

County Boundaries 

~ City Boundaries 

'·-

'11U';0~_';;;!(··· ·.)_ 

lZz,,;"rl>oro,NC !.ef'.ii/> 

Tarboro:NC 

)~ 
30748 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(10) Unit 5: NR2–Little River, 

Johnston County, North Carolina. 

(i) This unit consists of 28 river miles 

(45 river kilometers) of the Upper and 

Lower Little River from NC42 to the 

Johnston/Wayne County line. Unit 5 

includes stream habitat up to bankfull 

height. 

(ii) Map of Unit 5 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.018</GPH>

0 3.25 

Map of Unit 4 - Upper Neuse River Subbasin {Eno River) 

Critical Habitat Unitfor Caronna Mac:ttom 

6.5 13 KifometlliS 

I\.--. 

I -----. 

-.. ______ '.J ,/"•----x~-~~----------.,_,-.. --, 

_,-,. ___ . Major Rive;s 

~ Critical Habitat 

~ City Boundaries 

Ccunty Boundaries 

-, 

·--~--~ ~~,,_.; 

r 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30749 

(11) Unit 6: NR3–Contentnea Creek, 

Wilson County, North Carolina. 

(i) This unit consists of 15 river miles 

(24 river kilometers) of Contentnea 

Creek from Buckhorn Reservoir to 

Wiggins Mill Reservoir. Unit 6 includes 

stream habitat up to bankfull height. 

(ii) Map of Unit 6 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.019</GPH>

0 

0 

Map of Unit 5 - Little River Critical Habitat Unit for Carolina Madtom 

2.25 4.5 

3.25 6.5 

9 Miles 

13 Kilometers 

.. Major Rivers 

"""'Critical Habit.at 

~ Ci!y Boundaries 

C Coun!y Boundaries 

WIison County, NC 

B/t,ckCfoek 

_,-- -
30750 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 

(12) Unit 7: TR1–Trent River, Jones 

County, North Carolina. 

(i) This unit consists of 15 river miles 

(24 river kilometers) of the Trent River 

between the confluence with Cypress 

Creek and Beaver Creek. Unit 7 includes 

stream habitat up to bankfull height. 

(ii) Map of Unit 7 follows: 


lotter on DSK11XQN23PROD with RULES2ER09JN21.020</GPH>

Map of Unit 6 - Contentnea Creek Critical Habitat Unit for Carolina Madtom 

'•\',J>.. 

ti\~(/ / '\~1r-

--~"--\~0,e., 

l '"---\ 

\ \ 

Johnston County, NC\ 

\ 

\ 

\ 

0 2.25 4,5 

0 3.25 6.5 

Nash County, NC 

9 Miles 

13Kilomelef5 

•"• •• ___ Major Rivers 

""""Critk:al Habitat 

County Boundaries 

~ City Boundaries 
Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30751 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2021–11600 Filed 6–8–21; 8:45 am] 

BILLING CODE 4333–15–P 


lotter on DSK11XQN23PROD with RULES2ER09JN21.021</GPH>

0 

0 

Map of Unit 7 - Trent River Critical Habitat Unit for Carolina Madtom 

1.75 3.5 

2.75 5.5 

Jones County. NC 

7 Miles 

11 Kilometers 

·"•,. __ . MajorRivers 

"""Critical Habitat 

County Boundaries 

~ City Boundaries 

Craven County, NC