20211827 Ver 1_Public Notice Comments_20211221 (6)

30688 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0092;
FF09E21000 FXES11110900000 212]
RIN 1018-BC28
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Neuse River
Waterdog, Endangered Species Status
for Carolina Madtom, and Designations
of Critical Habitat
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), list two
North Carolina species, the Carolina
madtom (Noturus furiosus) as
endangered, and the Neuse River
waterdog (Necturus lewisi) as
threatened, under the Endangered
Species Act of 1973 (Act), as amended.
We also issue a rule under section 4(d)
of the Act for the Neuse River waterdog,
to provide for the conservation of this
species. In addition, we designate
critical habitat for both species under
the Act. For the Carolina madtom,
approximately 257 river miles (mi) (414
river kilometers (km)) fall within 7 units
of critical habitat in Durham,
Edgecombe, Franklin, Granville,
Halifax, Johnston, Jones, Nash, Orange,
Vance, Warren, and Wilson Counties,
North Carolina. For the Neuse River
waterdog, approximately 779 river mi
(1,254 river km) fall within 18 units of
critical habitat in Craven, Durham,
Edgecombe, Franklin, Granville, Greene,
Halifax, Johnston, Jones, Lenoir, Nash,
Orange, Person, Pitt, Wake, Warren,
Wayne, and Wilson Counties, North
Carolina. This rule extends the Act's
protections to these species and their
designated critical habitats.
DATES: This rule is effective July 9,
2021.
ADDRESSES: This final rule is available
on the internet at http://
www.regulations.gov. Comments and
materials we received, as well as some
supporting documentation we used in
preparing this rule, are available for
public inspection at http://
www.regulations.gov. All of the
comments, materials, and
documentation that we considered in
this rulemaking are available at http://
www.regulations.gov at Docket No.
FWS—R4—ES-2018-0092.
For the critical habitat designation,
the coordinates or plot points or both
from which the maps are generated are
included in the administrative record
and are available at http://
www.regulations.gov at Docket No.
FWS—R4—ES-2018-0092, and at the
Raleigh Ecological Services Field Office
(https://www.fws.gov/raleigh; street
address provided above). Any
additional tools or supporting
information that we developed for this
critical habitat designation will also be
available at the Fish and Wildlife
Service website and Field Office
identified above, and may also be
included in the preamble and at http://
www.,regulations.gov.
FOR FURTHER INFORMATION CONTACT: Pete
Benjamin, Field Supervisor, U.S. Fish
and Wildlife Service, Raleigh Ecological
Services Field Office, 551F Pylon Drive,
Raleigh, NC 27606; telephone 919-816-
6408. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, if we determine that a species
is an endangered or threatened species
throughout all or a significant portion of
its range, we are required to promptly
publish a proposal in the Federal
Register and make a determination on
our proposal within one year. To the
maximum extent prudent and
determinable, we must designate critical
habitat for any species that we
determine to be an endangered or
threatened species under the Act.
Whenever any species is listed as a
threatened species, the Secretary shall
issue such regulations as he or she
deems necessary and advisable to
provide for the conservation of such
species. In addition, the Secretary may
by regulation prohibit with respect to
any threatened species any act
prohibited under section 9(a)(1) of the
Act for endangered species. Listing a
species as an endangered or threatened
species and designation of critical
habitat can only be completed by
issuing a rule.
What this document does. This final
rule: (1) Lists the Carolina madtom as
endangered, (2) designates critical
habitat for the Carolina madtom, (3) lists
the Neuse River waterdog as threatened,
(4) issues a rule under section 4(d) of
the Act for the Neuse River waterdog,
and (5) designates critical habitat for the
Neuse River waterdog.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that habitat
degradation (Factor A), resulting from
the cumulative impacts of land use
change and associated watershed -level
effects on water quality, water quantity,
habitat connectivity, and instream
habitat suitability, poses the largest risk
to the future viability of both species.
This stressor is primarily related to
habitat changes: The buildup of fine
sediments, the loss of flowing water,
instream habitat fragmentation, and
impairment of water quality, and it is
exacerbated by the effects of climate
change (Factor E). The Carolina madtom
is also impacted by predation from
flathead catfish (Factor Q. 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.

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

30690 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 (Parvaspma
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, naive
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,

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

30692 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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

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

30694 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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
011ivier 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

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

30696 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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.

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

30698 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 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 MANAGE-
MENT UNIT (MU) NAMING FOR
CAROLINA MADTOM
Population/management unit
Tar:
Upper Tar.
Middle Tar.
Lower Tar.
Fishing Creek Subbasin.
Sandy -Swift.
Neuse:
Upper Neuse.
Middle Neuse.
Lower Neuse.
Little River.
Contentnea Creek.
TABLE 1—POPULATION AND MANAGE-
MENT UNIT (MU) NAMING FOR
CAROLINA MADTOM—Continued
Population/management unit
Trent:
Trent.
We estimated that the Carolina
madtom currently has low adaptive
potential due to limited representation
in two river basins and two
physiographic regions. The species
retains 33 percent of its known river
basin variability, considering greatly
reduced variability observed in the
Neuse River population. In addition,
compared to historical occupancy, the
species currently retains very limited
physiographic variability in the Coastal
Plain (14 percent) and moderate
variability in the Piedmont (56 ppercent).
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

30700 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 MANAGE-
MENT 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 011ivier 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

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 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
"reducting] the availability of food and
cover, and hindering] 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

30702 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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
clarkh) 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 Nifio or La Nifia) 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

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

30704 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 Q. 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

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

30706 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 Diversityv. 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,

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

30708 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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.govlg,rants.
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

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

30710 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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

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

30712 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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,

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 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
Life stage
Resources and/or circumstances needed for individuals to
complete each life stage
Resource
function
(BFSD *)
Information source
Egg/Embryo—May—July ............
• Clear, flowing water.................................................................
B
—Burr et al. 1989, p. 75.
• Sexually mature males and females.
• Appropriate spawning temperatures.
• Nest sites (rocks, bottles, shells, cobble).
• Adequate flow for oxygenation.
Hatchling—late summer ............
• Clear, flowing water................................................................
B, S
—Burr et al. 1989, p. 78.
• Cohesive schooling behavior to avoid predation
Juveniles-2-3 years; >2.5
• Clear, flowing water.................................................................
F, S
—Burr et al. 1989, p. 78.
inches long.
• Adequate food availability (midges, caddisflies, mayflies,
etc.)
• Cover (shells, bottles, cans, tires, woody debris, etc.).
Adults-3+ years—>4 inches
• Clear, flowing water 1 to 3 feet deep ......................................
F, S, D
—Burr et al. 1989, p. 63
long.
• Appropriate substrate (leaf litter, sand, gravel, cobble)
—Midway et al. 2010, p. 326.
• Adequate food availability (midges, caddisflies, mayflies,
etc.).
• Cover (shells, bottles, cans, tires, woody debris, etc.).
*B = breeding; F = feeding; S = sheltering; D = dispersal.
We have determined that the
following physical or biological features
are essential to the conservation of
Carolina madtom:
(1) Suitable substrates and connected
instream habitats, characterized by
geomorphically stable stream channels
and banks (i.e., channels that maintain
lateral dimensions, longitudinal
profiles, and sinuosity patterns over
time without an aggrading or degrading
bed elevation) with habitats that support
a diversity of freshwater native fish
(such as stable riffle -run -pool habitats
that provide flow refuges consisting of
silt -free gravel, small cobble, coarse
sand, and leaf litter substrates) as well
as abundant cover used for nesting.
(2) Adequate flows, or a hydrologic
flow regime (which includes the
severity, frequency, duration, and
seasonality of discharge over time),
necessary to maintain instream habitats
where the species is found and to

30714 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
maintain connectivity of streams with
the floodplain, allowing the exchange of
nutrients and sediment for maintenance
of the fish's habitat, food availability,
and ample oxygenated flow for
spawning and nesting habitat.
(3) Water quality (including, but not
limited to, conductivity, hardness,
turbidity, temperature, pH, ammonia,
heavy metals, and chemical
constituents) necessary to sustain
natural physiological processes for
normal behavior, growth, and viability
of all life stages.
(4) Aquatic macroinvertebrate prey
items, which are typically dominated by
larval midges, mayflies, caddisflies,
dragonflies, and beetle larvae.
We derive the specific physical or
biological features essential to the
conservation of Neuse River waterdog
from studies of this species' habitat,
ecology, and life history as described
above. The primary habitat elements
that influence resiliency of both species
include water quality, water quantity,
substrate, and habitat connectivity.
Additional information can be found in
the SSA report (Service 2021b) available
on http://www.regulations.gov under
Docket No. FWS-R4-ES-2018-0092.
The Neuse River waterdog's individual
needs are summarized below in Table 4.
TABLE 4—LIFE HISTORY AND RESOURCE NEEDS OF THE NEUSE RIVER WATERDOG
Life stage
Resources and/or circumstances needed for individuals to
complete each life stage
Resource
function
(BFSD ")
Information source
Egg/Embryo—May-June ...........
• Clean, flowing water with moderate current (-10-50 cm/sec)
B
—Pudney et al. 1985, p. 54.
• Sexually mature males and females (--6 years old)
—Cooper and Ashton 1985, p.
• Appropriate spawning temperatures (8-22 °C)
5.
• Nest sites (large flat rocks with gravel bottoms)
—Braswell and Ashton 1985,
• Adequate flow for oxygenation (7-9 ppm DO)
p. 21.
—Ashton 1985, p. 95.
Hatchling—late summer ............
• Clean, non -turbid, flowing water (-10-50 cm/sec) .................
B, S
—Cooper and Ashton 1985, p.
• Adequate food availability
5.
Post-hatchling Larvae-1-2
• Clean, flowing water (-10-50 cm/sec)....................................
F, S
—Ashton 1985, p. 95.
inches long.
• Adequate food availability (opportunistic feeding; primarily in-
vertebrates)
Juveniles —Up to 5.5-6.5 years;
• Clean, flowing water (--10-50 cm/sec)....................................
F, S
—Ashton 1985, p. 95.
2-4 inches long.
• Adequate food availability (primarily invertebrates)
—Braswell 2005, p. 867.
• Cover (large rocks/boulders, outcrops, burrows) for retreat
areas
Adults-6-30+ years-5-9
• Clean, flowing water deeper than 100 cm with flows 10-50
F, S, D
—Braswell and Ashton 1985,
inches long.
cm/sec.
pp. 13, 22, 28.
• Streams >15m wide
—Ashton 1985, p. 95.
• High dissolved oxygen (7-9 ppm)
—Braswell 2005, p. 868.
• Appropriate substrate (hard clay bottom with leaf litter, grav-
el, cobble)
• Little to no siltation
• Adequate food availability (aquatic and terrestrial inverte-
brates)
• 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 awning 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

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

30716 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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
Occupied at Length of unit
Critical habitat unit 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 Subbasin (Eno River) ......
No ..................
Easements; State; Private ..................................
20 (32)
Unit 5. NR2—Little
River ........................................................
Yes .................
Private; Easements ............................................
28 (45)
Unit 6. NR3—Contentnea
Creek ...........................................
Yes .................
Private.................................................................
15 (24)

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30717
TABLE 5—CRITICAL HABITAT UNITS FOR THE CAROLINA MADTOM—Continued
Occupied at
Length of unit
Critical habitat unit
the time of
Riparian ownership
in river miles
listing
(kilometers)
Unit7. TR1—Trent River .......................................................
No ..................
Private.................................................................
15 (24)
257 (414)
Total................................................................................
........................
.............................................................................
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

30718 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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]
Critical habitat unit
Riparian ownership
River miles
(Kilometers)
Previous unit
numbering
Unit 1. TAR1-Upper Tar River .............................................
Private; Easements ............................................
12.3 (19.8)
Unit 1: TAR1.
Unit 2. TAR2-Upper Fishing Creek .....................................
Private; Easements ............................................
10.5 (17)
Unit 2: TAR2.
Unit3. 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: TAR31b.
Unit 6. TAR4c-Middle Tar River Subbasin ..........................
Private; Easements; State ..................................
111 (179)
Unit 5: TAR3c.
Unit 7. TAR4d-Lower Tar River Subbasin ...........................
Private; Easements; State ..................................
59.9 (96.3)
Unit 6: TAR3d.
Unit 8. NR1-Eno River.........................................................
Private; Easements; State ..................................
43.9 (70.6)
Unit 7: NR1.
Unit 9. NR2-Flat River.........................................................
Private; Easements ............................................
15.2 (24.5)
Unit 8: NR2.
Unit 10. NR3-Middle Creek .................................................
Private; Easements; Local ..................................
30.8 (49.6)
Unit 9: NR3.
Unit 11. NR4-Swift Creek ....................................................
Private.................................................................
24 (38.6)
Unit 10: NR4.
Unit 12. NR5a-Little River ....................................................
Private; Easements ............................................
90.8 (146.1)
Unit 11: NR5a.
Unit 13. NR5b-Mill Creek .....................................................
Private; Easements ............................................
20.8 (33.5)
Unit 12: NR5b.
Unit 14. NR5c-Middle Neuse River .....................................
Private; State; Easements ..................................
43.2 (69.5)
Unit 13: NR5c.
Unit 15. NR6-Contentnea Creek/Lower Neuse River
Private; Easements ............................................
114.8 (184.8)
Unit 14: NR6.
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.
779 (1,254)
Total................................................................................
.............................................................................
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

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

30720 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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: NR4Ewift 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

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

30722 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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

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

30724 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
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 CIS 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

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

30726 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
action agencies are directly subject to
the specific regulatory requirement
(avoiding destruction and adverse
modification) imposed by critical
habitat designation. Consequently, it is
our position that only Federal action
agencies will be directly regulated by
this designation. There is no
requirement under the RFA to evaluate
the potential impacts to entities not
directly regulated. Moreover, Federal
agencies are not small entities.
Therefore, because no small entities will
be directly regulated by this rulemaking,
the Service certifies that this critical
habitat designation will not have a
significant economic impact on a
substantial number of small entities and
a regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use —
Executive Order13211
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
se .), 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 Order12630
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

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30727
governments, or for anyone else. As a
result, the rule does not have substantial
direct effects either on the State, or on
the relationship between the national
government and the State, or on the
distribution of powers and
responsibilities among the various
levels of government. The designation
may have some benefit to these
governments because the areas that
contain the features essential to the
conservation of the species are more
clearly defined, and the physical or
biological features of the habitat
necessary to the conservation of the
species are specifically identified. This
information does not alter where and
what federally sponsored activities may
occur. However, it may assist these local
governments in long-range planning
(because these local governments no
longer have to wait for case -by -case
section 7 consultations to occur).
Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) will be required.
While non -Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
Civil Justice Reform —Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
system and that it meets the
requirements of sections 3(a) and 3(b)(2)
of the Order. We are designating critical
habitat in accordance with the
provisions of the Act. To assist the
public in understanding the habitat
needs of the species, this rule identifies
the elements of physical or biological
features essential to the conservation of
the species. The designated areas of
critical habitat are presented on maps,
and the rule provides several options for
the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain
information collection requirements,
and a submission to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) is not required.
We may not conduct or sponsor and you
are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act in connection with listing
species and designating critical habitat
under the Act. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
position was upheld by the U.S. Court
of Appeals for the Ninth Circuit
(Douglas Countyv. 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.govand upon
request from the Raleigh Ecological
Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are
the staff members of the U.S. Fish and
Wildlife Service's Species Assessment
Team and the Raleigh Ecological
Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
■ 1. The authority citation for part 17
continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-
1544; and 4201-4245, unless otherwise
noted.
■ 2. Amend § 17.11(h), the List of
Endangered and Threatened Wildlife,
by:
■ a. Adding an entry for "Waterdog,
Neuse River" in alphabetical order
under AMPHIBIANS; and
■ b. Adding an entry for "Madtom,
Carolina" in alphabetical order under
FISHES.
The additions read as set forth below.
§ 17.11 Endangered and threatened
wildlife.
(h) * * *
Common name Scientific name Where listed Status Listing citations and applicable rules
Amphibians

30728 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
Common name Scientific name Where listed Status Listing citations and applicable rules
Waterdog, Neuse River ... Necturus lewisi ............... Wherever found .............. T 86 FR [INSERT Federal Register PAGE WHERE
THE DOCUMENT BEGINS], June 9, 2021; 50
CFR 17.43(f); ad 50 CFR 17.95(d).cH
Fishes
Madtom, Carolina ............ Noturus furiosus ............. Wherever found .............. E 86 FR [INSERT FEDERAL REGISTER PAGE
WHERE THE DOCUMENT BEGINS], June 9,
2021; 50 CFR 17.95(e).cH
■ 3. Amend § 17.43 by adding paragraph
(f) to read as set forth below:
§17.43 Special rules —amphibians.
(f) Neuse River waterdog (Necturus
lewisi).
(1) Prohibitions. The following
prohibitions that apply to endangered
wildlife also apply to the Neuse River
waterdog. Except as provided under
paragraph (f)(2) of this section and
§§ 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the
United States to commit, to attempt to
commit, to solicit another to commit, or
cause to be committed, any of the
following acts in regard to this species:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of commercial activity, as set
forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this species, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2)
through (c)(4) for endangered wildlife.
(iii) Take, as set forth at § 17.31(b).
(iv) Take incidental to an otherwise
lawful activity caused by:
(A) Species restoration efforts by State
wildlife agencies, including collection
of broodstock, tissue collection for
genetic analysis, captive propagation,
and subsequent stocking into currently
occupied and unoccupied areas within
the historical range of the species, and
follow-up monitoring.
(B) Channel restoration projects that
create natural, physically stable,
ecologically functioning streams (or
stream and wetland systems) that are
reconnected with their groundwater
aquifers. These projects can be
accomplished using a variety of
methods, but the desired outcome is a
natural channel with low shear stress
(force of water moving against the
channel); bank heights that enable
reconnection to the floodplain; a
reconnection of surface and
groundwater systems, resulting in
perennial flows in the channel; riffles
and pools composed of existing soil,
rock, and wood instead of large
imported materials; low compaction of
soils within adjacent riparian areas; and
inclusion of riparian wetlands. 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;
(h) 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.

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30729
(8) Maintain shade over the waterway
similar to that observed prior to the
forestry -related activity.
(9) Prohibit discharge of any solid
waste, petroleum, pesticide, fertilizer, or
other chemical into the waterway.
(v) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife.
■ 4. Amend § 17.95 by:
■ a. Adding to paragraph (d) an entry for
"Neuse River Waterdog (Necturus
lewisi)" following the entry for "Black
Warrior Waterdog (Necturus
alabamensis)"; and
■ b. Adding to paragraph (e) an entry for
"Carolina Madtom (Noturus furiosus)"
following the entry for "Conasauga
Logperch (Percina jenkinsi)".
The additions read as follows.
§17.95 Critical habitat —fish and wildlife.
(d) Amphibians.
NEUSE RIVER WATERDOG (Necturus
lewisi)
(1) Critical habitat units are depicted
for Craven, Durham, Edgecombe,
Franklin, Granville, Greene, Halifax,
Johnston, Jones, Lenoir, Nash, Orange,
Person, Pitt, Wake, Warren, Wayne, and
Wilson Counties, North Carolina, on the
maps in this entry.
(2) Within these areas, the physical or
biological features essential to the
conservation of Neuse River waterdog
consist of the following components:
(i) Suitable substrates and connected
instream habitats, characterized by
geomorphically stable stream channels
and banks (i.e., channels that maintain
lateral dimensions, longitudinal
profiles, and sinuosity patterns over
time without an aggrading or degrading
bed elevation) with habitats that support
a diversity of native aquatic fauna (such
as stable riffle -run -pool habitats that
provide flow refuges consisting of 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, 2 02 1.
(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/ml d/
lnethyd.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:

30730 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
Index• of e for mm+
Virginia
Noi th Carolina Unit 2 Unit 3
Unit 9 Unit 1 }
v...
I
Unit a
Unit 11 Unit 15
Nw'
7-%* '% Unit 16
Units'' 12- 14 ..
R,z '
Unit 17
Unit 18�
z
0 20 40. SQMiles.
*"*d Critical Habitat
b
D 30 60 120 Kilometers -- j State Boundaries
County Boundaries
(6) Unit 1: TAR1—Upper Tar River, Upper Tar River from approximately includes stream habitat up to bankfull
Granville County, North Carolina. SR1004 (Old NC 75) downstream to height.
(i) This unit consists of 12.3 river SR1622 (Cannady's Mill Road). Unit 1 (ii) Map of Unit 1 follows:
miles (19.8 river kilometers) of the

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30731
Vance County, NC
Granville: County,: NC
Fkankhn. County, NC
0 1.75
I I
3.5
I
7 Miles
i I
11 Kilometers
0 2.75
5,5
MajorRivers
140*.* Critical Habitat
County Boundaries
N
City Boundaries
(7) Unit 2: TAR2—Upper Fishing (i) This unit consists of 10.5 miles (17 to NC58. Unit 2 includes stream habitat
Creek, Warren County, North Carolina. kilometers) of Upper Fishing Creek from up to bankfull height.
SR1118 (No Bottom Drive) downstream (ii) Map of Unit 2 follows:

30732 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
Map of Unit 2: TAR2 - Upper Fishing Creek Critical Habitat Unit for Neuse River Waterdog
tAbnen County
County, NC.'•.`...
Franklin County, NC
0 2 4 8 Miles
I t t I I
12 Kilometers
Major Rivers
Critical Habitat
County Boundaries
City Boundaries
(8) Unit 3: TAR3—Bens Creek, Warren approximately one mile upstream and Road). Unit 3 includes stream habitat up
County, North Carolina. ending approximately one mile to bankfull height.
(i) This unit consists of 2 miles (3.2 downstream of SR1509 (Odell -Littleton (ii) Map of Unit 3 follows:
km) of Bens Creek beginning

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30733
Map of Unit I TAR3 - Ben's Creek Critical Habitat Unit for Neuse River Waterdog
(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)
2 Miles
r•�_.� NHQHydrology
3. Kilometers 'r� Critbcal Habitat �\
County. Boundaries.
City. Boundaries
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
NC
(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:

30734 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
Map of Units 4 - 7: TAR4 - Middle/Lower Tar River Subbasins Critical Habitat Units for
NeUse River • • •
Vance County,NG-,
�Vvirren. County, NC
Halifax Gounty NC x
TAR4a
TAR4b-
Franklin County. NC'•,
NashCounty,-NC-•
T4k4C Ease
Wakeunty, NC "
i ry
- s'WIa4n GouC', -
Johnston County. NC
Greene County, NC
Wayne. County, NC
71
BertreCounty, NC
c
_...
am be Couniy,NC .. Martin Courity, NC'
TAR4d
..:.' .-.Beaufort County, NC
Pitt County, NC' .
0 S 10 20 Mlles
t I Critical Habitat
Major Rivers
0 ii} 20 40 Kiiameters County Boundaries
City Boundaries
(10) Unit 8: NR1—Eno River, Durham (i) This unit consists of 43.9 miles portion of Falls Lake. Unit 8 includes
and Orange Counties, North Carolina. (70.6 kilometers) of the Eno River from stream habitat up to bankfull height.
NC86 downstream to the inundated (ii) Map of Unit 8 follows:
0 S 10 20 Mlles
t I Critical Habitat
Major Rivers
0 ii} 20 40 Kiiameters County Boundaries
City Boundaries
(10) Unit 8: NR1—Eno River, Durham (i) This unit consists of 43.9 miles portion of Falls Lake. Unit 8 includes
and Orange Counties, North Carolina. (70.6 kilometers) of the Eno River from stream habitat up to bankfull height.
NC86 downstream to the inundated (ii) Map of Unit 8 follows:

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30735
i .1111 •.. _s •
0 3 B 12 Miles
#"`%wo Critical Habitat
0 4.25 8:5 17 Kilometers County Boundaries
City Boundaries
(11) Unit 9: NR2—Flat River, Durham SR1739 (Harris Mill Road) downstream Unit 9 includes stream habitat up to
and Person Counties, North Carolina. to the inundated portion of Falls Lake. bankfull height.
(i) This unit consists of 15.2 miles (ii) Map of Unit 9 follows:
(24.5 kilometers) of the Flat River from

30736 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
0 3.5 3 6.Miles
tl Critical Habitat -
Major Rivers
0 2.25 4.5 A Kilometers County Boundaries
City Boundaries
(12) Unit 10: NR3—Middle Creek, (i) This unit consists of 30.8 miles 10 includes stream habitat up to
Johnston and Wake Counties, North (49.6 km) of Middle Creek from bankfull height.
Carolina. Southeast Regional Park downstream to (ii) Map of Unit 10 follows:
the confluence with Swift Creek. Unit

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30737
..Subbasin Critical Habitat Unit for
Harnett C—ty NC ,
2
Nash County, NC
Win- C-Ni 'NC
Johnston CountyAC
l'
0 4 8 18 Mites
Critical Habitat. - . _....—..
Major Rivers
0 5 10 20 Kilometers .� County Boundaries
City Boundaries
(13) Unit 11: NR4—Swift Creek, (i) This unit consists of 24 miles (38.6 Neuse River. Unit 11 includes stream
Johnston County, North Carolina. kilometers) of Swift Creek from NC42 habitat up to bankfull height.
downstream to the confluence with the (ii) Map of Unit 11 follows:

30738 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
0 Z 4 a Miles
# Critical Habitat --
Major Rivers
0 2.75 5.5 11 Kilometers County Boundaries
City Boundaries
(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:

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30739
Map of Units 12 - 14: NRS - Middle Neuse River Subbasins Critical Habitat Units for
Neuse River i • i
0 5 1
0 20.MilesI Critical Habitat
I Major {livers
Seymour iotinsonAFB
0 10 20 40 Kilometers
County Boundaries
City Boundaries
(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:

30740 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
. of ententnea Creek/Lower Neuse River Subbasin
Critical Habitat Unit for •s
0 5 10 20 Miles
Critical Habitat r-- —
Major Rivers
0 S 10 26 Kilometers County Boundaries
City Boundaries
(16) Unit 16: NR7—Swift Creek (Lower from SR1931 (Beaver Camp Rd) Rd). Unit 16 includes stream habitat up
Neuse), Craven County, North Carolina. downstream to SR1440 (Streets Ferry to bankfull height.
(i) This unit consists of 10.3 miles (ii) Map of Unit 16 follows:
(16.5 rier kilometers) of Swift Creek

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30741
0 2 4 8 Miles
I I Critical Habitat
Major Rivers
0 2.75 5.5 11 Kilometers County Boundaries
City Boundaries
(17) Unit 17: TR1—Trent River, Jones confluence with the Trent River, and Corps Cherry Point property. Unit 17
County, North Carolina. Trent River from the confluence with includes stream habitat up to bankfull
(i) This unit consists of 32.5 miles Poplar Branch downstream to SR1121 height.
(52.4 kilometers) of Beaver Creek from (Oak Grove Rd) crossing at the Marine (ii) Map of Unit 17 follows:
SR1316 (McDaniel Fork Rd) to the

30742 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
Lenoir Court;, NC-
Duplin County, NC Onslow County.. NC.
0 4
0 5 10
• ofUnit i,:w
iiiiiiif I I if f.•ir 1111 #
Graven County, NC..
6 16.Miles 00"414.0 Critical Habitat
Major Rivers
20 Kilometersy MGASGP Oak Grove C?LF
County Boundaries
s City Boundaries
Graven County, NC
(18) Unit 18: TR2—Tuckahoe Swamp, County, North Carolina. Unit 18 begins River. Unit 18 includes stream habitat
Jones County, North Carolina. upstream of SR1142 (Weyerhaeuser up to bankfull height.
(i) This unit consists of 2 miles (3.2 Road) to the confluence with the Trent (ii) Map of Unit 18 follows:
km) of Tuckahoe Swamp in Jones

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30743
Lenoir County, NC.
1. 2 4 Miles _.
�d► Critical Habi'a'
MajorRivers
1.75. 3S 7 Kilorneters County Boundaries
City Boundaries
(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, 2 02 1.
(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/ml d/
lnethyd.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:

30744 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
D 20 40
I
0 30 60
(6) Unit 1: TAR1—Upper Tar River,
Franklin, Granville, and Vance
Counties, North Carolina.
ao Miles w
�J 4**%.I Critical Habitat
j State Boundaries.
120 Kilometers: County Boundaries
(i) This unit consists of 26 river miles Creek. Unit 1 includes stream habitat up
(42 river kilometers) of the Upper Tar to bankfull height.
River from the confluence with Sand (ii) Map of Unit 1 follows:
Creek to the confluence with Sycamore

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30745
w of s a for sMadto
Warron County, NC
's Heneerslon, NG
w' _....
Vance County. NC. c}
p�lr
e
Granville County. NC
r
Franklin County: NC
Lo�uisb-g, NC
stn C eel' 4
je
j! '
Wake County, NC
IfOX
/Wgh,N _ ..
D 2.5 5 70 Miles `,...
i 1 i I .. Major RIVeiS
r\�r Critical Habitat _
6 3.5 7 1
A KiEameters. county Boundaries y/ city Boundaries ,•'ti,
(7) Unit 2: TAR2—Sandy/Swift Creek, (i) This unit consists of 66 river miles River. Unit 2 includes stream habitat up
Edgecombe, Franklin, Halifax, Nash, (106 river kilometers) of Sandy and to bankfull height.
Vance, and Warren Counties, North Swift Creeks, located downstream from (ii) Map of Unit 2 follows:
Carolina. NC561 to the confluence with the Tar

30746 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
• . . . . . . .
Waeren. County; NO A
Shocco CM k Halifax County, NO
f ieW NC
Franklin County. NO `..
e S er Cresk
r �
ON/
Nash County, NC Sikkt"IE owmbe Coup NO
g
y � .
� a
i�'
Foisnat Swamp _ l" % '-
... . Wilson Cl NO
4.25 $.5 17 Miles
Major Rivers
Critical Habitat
10 20:Kilometers County Boundaries
City Boundaries
(8) Unit 3: TAR3—Fishing Creek (i) This unit consists of 86 river miles Medoc Mountain Road (SR1002) to the
Subbasin, Edgecombe, Franklin, Halifax, (138 river kilometers) of Fishing Creek confluence with Fishing Creek. Unit 3
Nash, and Warren Counties, North from the confluence with Hogpen includes stream habitat up to bankfull
Carolina. Branch to the confluence with the Tar height.
River, and Little Fishing Creek from (ii) Map of Unit 3 follows:

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30747
Map of Unit 3 - Fishing Creek Subbasin Critical Habitat Unit for Carolina Madtorn
.' Mtrran County; NC
Sho ..C"nek Halifax County, NC
a+xd ^�fyS�. EnNetd NC
Y ... fi'shrnB Creek
Franklin County NC
... 'so$e f Suit Cre Nr -.
es
/r
N; ..
Nssh,Counry NC
EdgesombaGauni?', NC .....
Rook
y
Sa�anyC�fr IV `,x
Ta 4 rn ritC .
_ C �fYb,-f�r�Iver'
y
zl
•' a TarOaia; NC
Wlson-County, NC'.
d $.25 8.5 17 Miles{. _...
i Major Rivers ` -
ft Critical Habitat
0 5 10 20 Kilometers County Boundaries
City Boundaries 1\1',
5
(9) Unit 4: NR1—Upper Neuse River (i) This unit consists of 20 river miles confluence with Cabin Creek near Falls
Subbasin (Eno River), Durham and (32 river kilometers) of the Upper Neuse Lake impoundment. Unit 4 includes
Orange Counties, North Carolina. River extending from Eno River State stream habitat up to bankfull height.
Park downstream of NC70 to the (ii) Map of Unit 4 follows:

30748 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
a L 225 9:5 s Miles
Major Rivers —
A► Critical Habitat
0 1.25 5.5 13 Kilometers. ,� _., City Boundaries. '. �.•..
County Boundaries
(10) Unit 5: NR2—Little River, Lower Little River from NC42 to the includes stream habitat up to bankfull
Johnston County, North Carolina. Johnston/Wayne County line. Unit 5 height.
(i) This unit consists of 28 river miles (ii) Map of Unit 5 follows:
(45 river kilometers) of the Upper and

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30749
I 'Aireher Lodge—Chodon,. P7C
Wi4son County, NC
SkxekCreek
r�x
JoC>nston.County, No
j rrJ
y - /
y7� ". dog"
r'/�1
un
i Sm#thfield, NC
Wayne County, NC.
,ram
� Gaids6oko,NC
f
0 221 a.s s Miles
Major Rivers `
Critical Habitat _.
e
6 3.25 6.5 13Ilornetwe City Boundaries ?
... County Boundaries 'l 'If
(11) Unit 6: NR3—Contentnea Creek, (i) This unit consists of 15 river miles Wiggins Mill Reservoir. Unit 6 includes
Wilson County, North Carolina. (24 river kilometers) of Contentnea stream habitat up to bankfull height.
Creek from Buckhorn Reservoir to (ii) Map of Unit 6 follows:

30750 Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
�l//i
iotsrmt Swamp , . -._ Rocky �i4unC' NC'
.. ........... Sar River _.__. ,...
Nash County, NC
e "Ie
Lixits�tneaCrs
Art
.tan County, NG..;.'...:
0 2.25 45 9 Miles
0 3.25 8.5 13 Kilometers
Major Rivers
40**4 Critical Habitat
County Boundaries
City Boundaries
(12) Unit 7: TR1—Trent River, Jones (i) This unit consists of 15 river miles Creek and Beaver Creek. Unit 7 includes
County, North Carolina. (24 river kilometers) of the Trent River stream habitat up to bankfull height.
between the confluence with Cypress (ii) Map of Unit 7 follows:

Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations 30751
..f Unit 7 - Trent River Critical Habitat Unit for.Madtorn
Craven County, NC
the Spa �
_- Lenoir. County, NC
m
Jones County, NC +�..
7ackan+� cn,&
0 1.75 3.5 7 Miles
I � ! � t -'.,._.� Major Rivers-
�""� Critical Habitat
0 2.75 5.5 11. Kilometers ..._.
County Boundaries
City BoundariesF,
i
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