[Federal Register Volume 86, Number 109 (Wednesday, June 9, 2021)]
[Rules and Regulations]
[Pages 30688-30751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11600]



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Vol. 86

Wednesday,

No. 109

June 9, 2021

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

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

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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.

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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.

[[Page 30689]]

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

Previous Federal Actions

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

Supporting Documents

    Species status assessment (SSA) teams prepared SSA reports for the 
Carolina madtom and Neuse River waterdog. The SSA teams were composed 
of Service biologists, in consultation with other species experts. The 
SSA reports each represent a compilation of the best scientific and 
commercial data available concerning the status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the species. The SSA reports and 
other materials relating to this rule can be found on the Service's 
Southeast Region website at 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

[[Page 30690]]

and were incorporated into the SSA reports as appropriate.

Carolina Madtom

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

Neuse River Waterdog

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

State Agency Comments

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

Carolina Madtom

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

[[Page 30691]]

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

Neuse River Waterdog

    (9) Comment: The NCWRC provided a thorough review of the SSA report 
and included many comments updating data and interpretations. The 
partner review indicated concern about how current occupancy was 
summarized (i.e., that the species currently occupies 73 percent of its 
historical range), indicating that the recent survey efforts suggest a 
50 percent decline in occupied sites from the surveys done in the early 
1980s.
    Our Response: Data revisions and interpretations were incorporated 
into the revised SSA report. We note that current occupancy versus the 
occupancy of historical range at the species level is summarized by 
watershed (or hydrologic unit) occupancy within MUs rather than by 
individual site occupancy. This difference likely accounts for the 
apparent discrepancy noted by the commenter. The SSA report includes 
details about changes at the site level, as well as the overall 
watershed, to provide as complete a picture as possible of changes from 
historical times to the present day (Service 2021b, p. v).
    (10) Comment: The NCWRC provided several new records for Neuse 
River waterdog during the public comment period in 2019, including 
records in Middle Creek (Johnston County), Tuckahoe Swamp (Jones 
County), Tar River (Granville County), and Fishing Creek (Nash County).
    Our Response: We included these new records and updated five 
critical habitat units (Unit 1--Upper Tar River, Unit 4--Fishing Creek 
Subbasin, Unit 6--Middle Tar River Subbasin, Unit 10--Middle Creek, and 
Unit 17--Trent River). We revised Unit 1 to add 3.7 miles (6 km) of the 
Upper Tar River based on a 2018 observation provided by NCWRC of Neuse 
River waterdog. We revised Unit 4 to add 20 miles (32.3 km) of Fishing 
Creek based on a 2019 observation provided by NCWRC of Neuse River 
waterdog. We revised Unit 6 to add 11 miles (17.8 km) of the upper 
reach of the Tar River based on a 2019 observation by a permitted 
private consultant of Neuse River waterdog. We revised Unit 10 to add 
23.2 miles (37.4 km) of Middle Creek based on two 2018 observations 
provided by NCWRC of Neuse River waterdog. These revisions were part of 
our July 30, 2020, document reopening the May 22, 2019, proposed rule's 
public comment period (85 FR 45839).

Public Comments

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

[[Page 30692]]

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

Neuse River Waterdog

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

[[Page 30693]]

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

[[Page 30694]]

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

[[Page 30695]]

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

[[Page 30696]]

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

[[Page 30697]]

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

I. Final Listing Determinations

Background

Carolina Madtom

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

Neuse River Waterdog

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

Regulatory and Analytical Framework

Regulatory Framework

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

[[Page 30698]]

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

Analytical Framework

    The SSA reports document the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of each species, including an assessment of the potential 
threats to each species. The SSA report does not represent a decision 
by the Service on whether the species should be proposed for listing as 
an endangered or threatened species under the Act. It does, however, 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA reports; the full SSA 
reports can be found at Docket No. FWS-R4-ES-2018-0092 and on 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

[[Page 30699]]

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

Summary of Biological Status and Threats

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

Carolina Madtom

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

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

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

Neuse River Waterdog

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

[[Page 30700]]

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

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

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

Factors Influencing Viability of Neuse River Waterdog and Carolina 
Madtom

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

[[Page 30701]]

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

[[Page 30702]]

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

[[Page 30703]]

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

Future Scenarios

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

[[Page 30704]]

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

Future Conditions of the Carolina Madtom and Neuse River Waterdog

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

Determinations of Carolina Madtom and Neuse River Waterdog Status

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

Carolina Madtom: Status Throughout All of Its Range

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

[[Page 30705]]

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

Carolina Madtom: Status Throughout a Significant Portion of Its Range

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

Carolina Madtom Determination of Status

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

Neuse River Waterdog: Status Throughout All of Its Range

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

[[Page 30706]]

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

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

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

[[Page 30707]]

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

Determination of Neuse River Waterdog Status

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

Available Conservation Measures

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

[[Page 30708]]

businesses, and private landowners. Examples of recovery actions 
include habitat restoration (e.g., restoration of native vegetation), 
research, captive propagation and reintroduction, and outreach and 
education. The recovery of many listed species cannot be accomplished 
solely on Federal lands because their range may occur primarily or 
solely on non-Federal lands. To achieve recovery of these species 
requires cooperative conservation efforts on private, State, and Tribal 
lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of North 
Carolina will be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the Carolina madtom 
and Neuse River waterdog. Information on our grant programs that are 
available to aid species recovery can be found at: 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 
landscape-altering activities on Federal lands administered by the 
Service, U.S. Forest Service, and National Park Service; issuance of 
section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the 
U.S. Army Corps of Engineers; and construction and maintenance of roads 
or highways by the Federal Highway Administration.

Carolina Madtom

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

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

Neuse River Waterdog

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

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

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as he or she 
deems necessary and advisable to provide for the conservation of 
species listed as threatened. The U.S. Supreme Court has noted that 
statutory language like ``necessary and advisable'' demonstrates a 
large degree of deference to the agency

[[Page 30709]]

(see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting the prohibitions under section 
9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him with regard to the permitted activities for those species. He 
may, for example, permit taking, but not importation of such species, 
or he may choose to forbid both taking and importation but allow the 
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st 
Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
rule that is designed to address the Neuse River waterdog's specific 
threats and conservation needs. Although the statute does not require 
the Service to make a ``necessary and advisable'' finding with respect 
to the adoption of specific prohibitions under section 9, we find that 
this rule as a whole satisfies the requirement in section 4(d) of the 
Act to issue regulations deemed necessary and advisable to provide for 
the conservation of the Neuse River waterdog. As discussed above under 
Summary of Biological Status and Threats, we have concluded that the 
Neuse River waterdog is likely to become in danger of extinction within 
the foreseeable future primarily due to habitat degradation from 
stressors influencing water quality, water quantity, instream habitat, 
and habitat connectivity. The provisions of this 4(d) rule will promote 
conservation of the Neuse River waterdog by encouraging management of 
the landscape in ways that meet both land management considerations and 
the conservation needs of the Neuse River waterdog. The provisions of 
this rule are one of many tools that the Service will use to promote 
the conservation of the Neuse River waterdog.

Provisions of the 4(d) Rule

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

[[Page 30710]]

to avoid any take implications. Further, those forest landowners who 
are third-party-certified to a credible forest management standard are 
providing audited certainty that BMP implementation is taking place 
across the landscape.
    To address any uncertainty regarding which silvicultural and forest 
management BMPs will satisfy this exception for incidental take 
resulting from silvicultural practices and forest management 
activities, our regulations specify the conditions that must be met. We 
revised our section 4(d) language to clarify that the BMPs must result 
in protection of the habitat features that provide for the breeding, 
feeding, sheltering, and dispersal needs of the Neuse River waterdog, 
which will provide for the conservation of the species. In waterbodies 
that support listed aquatic species, a wider SMZ is more effective at 
reducing sedimentation, maintaining lower water temperatures through 
shading, and introducing food (such as leaves and insects) into the 
food chain (VADF 2011, p. 37). Ninety percent of the food in forested 
streams comes from bordering vegetation (NCWRC 2002, p. 6; USFWS 2006, 
p. 6; Stewart et al. 2000, p. 210; USFWS 2020ab, p. 10). Neuse River 
waterdogs require cool, well-oxygenated water, and a clean stream 
bottom (USFWS 2020ab, p. 10). A lack of these features limits the 
number of waterdogs a stream can support. Aquatic habitat and suitable 
water temperature can be maintained even during logging operations when 
streamside vegetation is left intact (VADF 2011, p. 37). The exception 
for incidental take associated with these activities seeks to ensure 
these characteristics are maintained for the conservation of the Neuse 
River waterdog.
    Under this final 4(d) rule, all prohibitions and provisions of 
section 9(a)(1) of the Act apply to the Neuse River waterdog, except 
that incidental take resulting from the following actions will not be 
prohibited:
    (1) Species restoration efforts by State wildlife agencies, 
including collection of broodstock, tissue collection for genetic 
analysis, captive propagation, and subsequent stocking into currently 
occupied and unoccupied areas within the historical range of the 
species, and follow-up monitoring.
    (2) Channel restoration projects that create natural, physically 
stable, ecologically functioning streams (or stream and wetland 
systems) that are reconnected with their groundwater aquifers. These 
projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; a reconnection of surface and 
groundwater systems, resulting in perennial flows in the channel; 
riffles and pools composed of existing soil, rock, and wood instead of 
large imported materials; low compaction of soils within adjacent 
riparian areas; and inclusion of riparian wetlands. Second- to third-
order, headwater streams reconstructed in this way offer suitable 
habitats for the Neuse River waterdog and contain stable channel 
features, such as pools, glides, runs, and riffles, which could be used 
by the species for spawning, rearing, growth, feeding, migration, and 
other normal behaviors. Prior to restoration action, surveys to 
determine presence of Neuse River waterdog must be performed, and if 
located, waterdogs must be relocated prior to project implementation.
    (3) Bank stabilization projects that use bioengineering methods to 
replace pre-existing, bare, eroding stream banks with vegetated, stable 
stream banks, thereby reducing bank erosion and instream sedimentation 
and improving habitat conditions for the species. Following these 
bioengineering methods, stream banks may be stabilized using native 
species live stakes (live, vegetative cuttings inserted or tamped into 
the ground in a manner that allows the stake to take root and grow), 
native species live fascines (live branch cuttings, usually willows, 
bound together into long, cigar shaped bundles), or native species 
brush layering (cuttings or branches of easily rooted tree species 
layered between successive lifts of soil fill). Native species 
vegetation includes woody and herbaceous species appropriate for the 
region and habitat conditions. These methods will not include the sole 
use of quarried rock (rip-rap) or the use of rock baskets or gabion 
structures.
    (4) Forestry-related activities, including silvicultural practices, 
forest management activities, and fire control tactics, that implement 
State-approved BMPs. In order for this exception to apply to forestry-
related activities, these BMPs must achieve all of the following:
    (a) Establish a streamside management zone alongside the margins of 
each waterway.
    (b) Restrain visible sedimentation caused by the forestry-related 
activity from entering the waterway.
    (c) Maintain native groundcover within the streamside management 
zone of the waterway, and promptly re-establish native groundcover if 
disturbed.
    (d) Limit installation of vehicle or equipment crossings of the 
waterway to only where necessary for the forestry-related activity. 
Such crossings must:
    (i) Have erosion and sedimentation control measures installed to 
divert surface runoff away and restrain visible sediment from entering 
the waterway;
    (ii) Allow for movement of aquatic organisms within the waterway; 
and
    (iii) Have native groundcover applied and maintained through 
completion of the forestry-related activity.
    (e) Prohibit the use of tracked or wheeled vehicles for 
reforestation site preparation within the streamside management zone of 
the waterway.
    (f) Prohibit locating log decks, skid trails, new roads, and 
portable mill sites in the streamside management zone of the waterway.
    (g) Prohibit obstruction and impediment of the flow of water within 
the waterway, caused by direct deposition of debris or soil by the 
forestry-related activity.
    (h) Maintain shade over the waterway similar to that observed prior 
to the forestry-related activity.
    (i) Prohibit discharge of any solid waste, petroleum, pesticide, 
fertilizer, or other chemical into the waterway.
    We reiterate that these actions and activities may have some 
minimal level of take of the Neuse River waterdog, but are unlikely to 
negatively impact the species' conservation and recovery efforts. To 
the contrary, we expect they would have a net beneficial effect on the 
species. Across the species' range, instream habitats have been 
degraded physically by sedimentation and by direct channel disturbance. 
The activities in the 4(d) rule will correct some of these problems, 
creating more favorable habitat conditions for the species.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.32. With regard to threatened wildlife, a permit may be issued 
for the following purposes: For scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. There are 
also certain statutory exemptions from the prohibitions, which are 
found in sections 9 and 10 of the Act.
    The Service recognizes the special and unique relationship with our 
State

[[Page 30711]]

natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, candidate, and at-risk species of wildlife and plants. 
State agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve the Neuse River 
waterdog that may result in otherwise prohibited take without 
additional authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of the 
Neuse River waterdog. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between Federal agencies and the Service.

III. Critical Habitat

Background

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

[[Page 30712]]

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

Prudency Determination

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

Critical Habitat Determinability

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

Physical or Biological Features Essential to the Conservation of the 
Species

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

[[Page 30713]]

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

Summary of Essential Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    The features may also be combinations of habitat characteristics 
and may encompass the relationship between characteristics or the 
necessary amount of a characteristic needed to support the life history 
of the species. In considering whether features are essential to the 
conservation of the species, the Service may consider an appropriate 
quality, quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species.
    We derive the specific physical or biological features essential to 
the conservation of Carolina madtom from studies of this species' 
habitat, ecology, and life history as described above. The primary 
habitat elements that influence resiliency of both species include 
water quality, water quantity, substrate, and habitat connectivity. 
Additional information can be found in the SSA report (Service 2021a) 
available on 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
----------------------------------------------------------------------------------------------------------------
                                            Resources and/or
                                        circumstances needed for      Resource function
             Life stage               individuals to complete each        (BFSD *)          Information source
                                               life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-July................  <bullet> Clear, flowing       B                     --Burr et al. 1989, p.
                                       water.                                              75.
                                      <bullet> Sexually mature
                                       males and females..
                                      <bullet> Appropriate
                                       spawning temperatures.
                                      <bullet> Nest sites (rocks,
                                       bottles, shells, cobble).
                                      <bullet> Adequate flow for
                                       oxygenation.
Hatchling--late summer..............  <bullet> Clear, flowing       B, S                  --Burr et al. 1989, p.
                                       water.                                              78.
                                      <bullet> Cohesive schooling
                                       behavior to avoid predation.
Juveniles--2-3 years; >2.5 inches     <bullet> Clear, flowing       F, S                  --Burr et al. 1989, p.
 long.                                 water.                                              78.
                                      <bullet> Adequate food
                                       availability (midges,
                                       caddisflies, mayflies,
                                       etc.).
                                      <bullet> Cover (shells,
                                       bottles, cans, tires, woody
                                       debris, etc.).
Adults--3+ years-->4 inches long....  <bullet> Clear, flowing       F, S, D               --Burr et al. 1989, p.
                                       water 1 to 3 feet deep.                             63
                                      <bullet> Appropriate                                --Midway et al. 2010,
                                       substrate (leaf litter,                             p. 326.
                                       sand, gravel, cobble).
                                      <bullet> Adequate food
                                       availability (midges,
                                       caddisflies, mayflies,
                                       etc.).
                                      <bullet> Cover (shells,
                                       bottles, cans, tires, woody
                                       debris, etc.).
----------------------------------------------------------------------------------------------------------------
* B = breeding; F = feeding; S = sheltering; D = dispersal.

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

[[Page 30714]]

maintain connectivity of streams with the floodplain, allowing the 
exchange of nutrients and sediment for maintenance of the fish's 
habitat, food availability, and ample oxygenated flow for spawning and 
nesting habitat.
    (3) Water quality (including, but not limited to, conductivity, 
hardness, turbidity, temperature, pH, ammonia, heavy metals, and 
chemical constituents) necessary to sustain natural physiological 
processes for normal behavior, growth, and viability of all life 
stages.
    (4) Aquatic macroinvertebrate prey items, which are typically 
dominated by larval midges, mayflies, caddisflies, dragonflies, and 
beetle larvae.
    We derive the specific physical or biological features essential to 
the conservation of Neuse River waterdog from studies of this species' 
habitat, ecology, and life history as described above. The primary 
habitat elements that influence resiliency of both species include 
water quality, water quantity, substrate, and habitat connectivity. 
Additional information can be found in the SSA report (Service 2021b) 
available on 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
----------------------------------------------------------------------------------------------------------------
                                            Resources and/or
                                        circumstances needed for      Resource function
             Life stage               individuals to complete each        (BFSD *)          Information source
                                               life stage
----------------------------------------------------------------------------------------------------------------
Egg/Embryo--May-June................  <bullet> Clean, flowing       B                     --Pudney et al. 1985,
                                       water with moderate current                         p. 54.
                                       (~10-50 cm/sec).                                   --Cooper and Ashton
                                      <bullet> Sexually mature                             1985, p. 5.
                                       males and females (~6 years                        --Braswell and Ashton
                                       old).                                               1985, p. 21.
                                      <bullet> Appropriate                                --Ashton 1985, p. 95.
                                       spawning temperatures (8-22
                                       [deg]C).
                                      <bullet> Nest sites (large
                                       flat rocks with gravel
                                       bottoms).
                                      <bullet> Adequate flow for
                                       oxygenation (7-9 ppm DO).
Hatchling--late summer..............  <bullet> Clean, non-turbid,   B, S                  --Cooper and Ashton
                                       flowing water (~10-50 cm/                           1985, p. 5.
                                       sec).
                                      <bullet> Adequate food
                                       availability.
Post-hatchling Larvae--1-2 inches     <bullet> Clean, flowing       F, S                  --Ashton 1985, p. 95.
 long.                                 water (~10-50 cm/sec).
                                      <bullet> Adequate food
                                       availability (opportunistic
                                       feeding; primarily
                                       invertebrates).
Juveniles--Up to 5.5-6.5 years; 2-4   <bullet> Clean, flowing       F, S                  --Ashton 1985, p. 95.
 inches long.                          water (~10-50 cm/sec).                             --Braswell 2005, p.
                                      <bullet> Adequate food                               867.
                                       availability (primarily
                                       invertebrates).
                                      <bullet> Cover (large rocks/
                                       boulders, outcrops,
                                       burrows) for retreat areas.
Adults--6-30+ years--5-9 inches long  <bullet> Clean, flowing       F, S, D               --Braswell and Ashton
                                       water deeper than 100 cm                            1985, pp. 13, 22, 28.
                                       with flows 10-50 cm/sec.                           --Ashton 1985, p. 95.
                                      <bullet> Streams >15m wide..                        --Braswell 2005, p.
                                      <bullet> High dissolved                              868.
                                       oxygen (7-9 ppm).
                                      <bullet> Appropriate
                                       substrate (hard clay bottom
                                       with leaf litter, gravel,
                                       cobble).
                                      <bullet> Little to no
                                       siltation.
                                      <bullet> Adequate food
                                       availability (aquatic and
                                       terrestrial invertebrates).
                                      <bullet> Cover (large rocks/
                                       boulders, outcrops,
                                       burrows) for retreat areas.
----------------------------------------------------------------------------------------------------------------
* 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 silt-free 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

[[Page 30715]]

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

[[Page 30716]]

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
----------------------------------------------------------------------------------------------------------------
                                                                                                  Length of unit
        Critical habitat unit            Occupied at the time of         Riparian ownership       in river miles
                                                 listing                                           (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         No.........................  Easements; State; Private...         20 (32)
 Subbasin (Eno River).
Unit 5. NR2--Little River............  Yes........................  Private; Easements..........         28 (45)
Unit 6. NR3--Contentnea Creek........  Yes........................  Private.....................         15 (24)

[[Page 30717]]

 
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 
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 
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

[[Page 30718]]

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 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.

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]
----------------------------------------------------------------------------------------------------------------
                                                                      River miles
         Critical habitat unit               Riparian ownership      (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          Private; Easements; State       111 (179)  Unit 5: TAR3c.
 Subbasin.
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     Private; Easements.......   114.8 (184.8)  Unit 14: NR6.
 Neuse River Subbasin.
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

[[Page 30719]]

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

[[Page 30720]]

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 
point-source 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 
point-source 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

[[Page 30721]]

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 benthic-macroinvertebrate 
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

[[Page 30722]]

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 (non-
point 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

[[Page 30723]]

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 time-consuming 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, Service-approved 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;

[[Page 30724]]

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 high-probability 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 at-risk 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

[[Page 30725]]

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 non-
permitted conservation agreements and partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at the existence of tribal conservation plans and 
partnerships, and consider the government-to-government relationship of 
the United States with Tribal entities. We also consider any social 
impacts that might occur because of the designation.
    In preparing this final rule, we 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

[[Page 30726]]

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 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. 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

[[Page 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

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h), the List of Endangered and Threatened 
Wildlife, by:
0
a. Adding an entry for ``Waterdog, Neuse River'' in alphabetical order 
under AMPHIBIANS; and
0
b. Adding an entry for ``Madtom, Carolina'' in alphabetical order under 
FISHES.
    The additions read as set forth below.


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                   Amphibians
----------------------------------------------------------------------------------------------------------------
 

[[Page 30728]]

 
                                                  * * * * * * *
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\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.43 by adding paragraph (f) to read as set forth 
below:


Sec.  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 Sec. Sec.  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 Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  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. Second- to third-
order, headwater streams reconstructed in this way offer suitable 
habitats for the Neuse River waterdog and contain stable channel 
features, such as pools, glides, runs, and riffles, which could be used 
by the species for spawning, rearing, growth, feeding, migration, and 
other normal behaviors. Prior to restoration action, surveys to 
determine presence of Neuse River waterdog must be performed, and if 
located, waterdogs must be relocated prior to project implementation.
    (C) Bank stabilization projects that use bioengineering methods to 
replace pre-existing, bare, eroding stream banks with vegetated, stable 
stream banks, thereby reducing bank erosion and instream sedimentation 
and improving habitat conditions for the species. Following these 
bioengineering methods, stream banks may be stabilized using native 
species live stakes (live, vegetative cuttings inserted or tamped into 
the ground in a manner that allows the stake to take root and grow), 
native species live fascines (live branch cuttings, usually willows, 
bound together into long, cigar shaped bundles), or native species 
brush layering (cuttings or branches of easily rooted tree species 
layered between successive lifts of soil fill). Native 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 forestry-related 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 re-establish native groundcover if 
disturbed.
    (4) Limit installation of vehicle or equipment crossings of the 
waterway to only where necessary for the forestry-related activity. 
Such crossings must:
    (i) Have erosion and sedimentation control measures installed to 
divert surface runoff away and restrain visible sediment from entering 
the waterway;
    (ii) Allow for movement of aquatic organisms within the waterway; 
and
    (iii) Have native groundcover applied and maintained through 
completion of the forestry-related activity.
    (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.

[[Page 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 Sec.  17.21(d)(2) for endangered wildlife.

0
4. Amend Sec.  17.95 by:
0
a. Adding to paragraph (d) an entry for ``Neuse River Waterdog 
(Necturus lewisi)'' following the entry for ``Black Warrior Waterdog 
(Necturus alabamensis)''; and
0
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.


Sec.  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 silt-free 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:

[[Page 30730]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.000

    (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:

[[Page 30731]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.001

    (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:

[[Page 30732]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.002

    (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:

[[Page 30733]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.003

    (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:

[[Page 30734]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.004

    (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:

[[Page 30735]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.005

    (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:

[[Page 30736]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.006

    (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:

[[Page 30737]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.007

    (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:

[[Page 30738]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.008

    (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:

[[Page 30739]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.009

    (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:

[[Page 30740]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.010

    (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:

[[Page 30741]]

[GRAPHIC] [TIFF OMITTED] TR09JN21.011

    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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* * * * *

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