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

Public Notice in this proceeding are 29. For further information The coordinates or plot points or both hereby incorporated by reference. concerning the MF–II Challenge Process from which the maps are generated are Comment Public Notice, contact included in the administrative record 6. Steps Taken To Minimize the Jonathan McCormack, Auctions and for the critical habitat designation and Significant Economic Impact on Small Spectrum Access Division, Wireless are available at http:// Entities, and Significant Alternatives Telecommunications Bureau, at (202) www.regulations.gov at Docket No. Considered 418–0660. FWS–R4–ES–2016–0031, and at the 25. The RFA requires an agency to Federal Communications Commission. Alabama Ecological Services Field describe any significant alternatives that Office (https://www.fws.gov/alabama) William W. Huber, it has considered in reaching its (see FOR FURTHER INFORMATION CONTACT). proposed approach, which may include Associate Chief, Auctions and Spectrum Any additional tools or supporting the following four alternatives (among Access Division, WTB. information that we developed for this others): (1) The establishment of [FR Doc. 2017–28421 Filed 1–2–18; 8:45 am] final rule will also be available at the differing compliance or reporting BILLING CODE 6712–01–P U.S. Fish and Wildlife Service website requirements or timetables that take into and Field Office set out above, and may account the resources available to small also be included in the preamble and at entities; (2) the clarification, DEPARTMENT OF THE INTERIOR http://www.regulations.gov. consolidation, or simplification of FOR FURTHER INFORMATION CONTACT: compliance or reporting requirements Fish and Wildlife Service William Pearson, Field Supervisor, U.S. under the rule for small entities; (3) the Fish and Wildlife Service (see use of performance, rather than design, 50 CFR Part 17 ADDRESSES above). Persons who use a standards; and (4) and exemption from telecommunications device for the deaf coverage of the rule, or any part thereof, [Docket Nos. FWS–R4–ES–2016–0029 and FWS–R4–ES–2016–0031; 4500030113] (TDD) may call the Federal Relay for small entities. Service at 800–877–8339. 26. The analysis of the Commission’s RIN 1018–BA78; RIN 1018–BA79 SUPPLEMENTARY INFORMATION: efforts to minimize the possible This document consists of: (1) A final significant economic impact on small Endangered and Threatened Wildlife rule to list the Black Warrior waterdog entities as described in the previous and Plants; Endangered Species as endangered and (2) a final critical MF–II Order FRFAs are hereby Status for Black Warrior Waterdog and habitat designation for the Black incorporated by reference. As discussed Designation of Critical Habitat Warrior waterdog. above, the requirements and procedures AGENCY: Fish and Wildlife Service, established in the MF–II Challenge Executive Summary Interior. Process Handset Public Notice are Why we need to publish a rule. Under intended to provide small entities with ACTION: Final rule. the Endangered Species Act, a species sufficient flexibility to choose a device SUMMARY: We, the U.S. Fish and may warrant protection through listing that fits their needs and budgets thereby Wildlife Service (Service), determine if it is endangered or threatened minimizing significant economic impact endangered species status under the throughout all or a significant portion of on small entities. Endangered Species Act of 1973 (Act), its range. Listing a species as an 7. Report to Congress as amended for the Black Warrior endangered or threatened species can waterdog (Necturus alabamensis) and only be completed by issuing a rule. 27. The Commission will send a copy designate critical habitat. The effect of What this rule does. This rule will of the MF–II Challenge Process Handset this regulation will be to add this finalize the listing of the Black Warrior Public Notice, including this SFRFA, in species to the List of Endangered and waterdog (Necturus alabamensis) as an a report to Congress pursuant to the Threatened Wildlife and designate endangered species and will finalize Congressional Review Act. In addition, critical habit for this species. In total, designation of critical habitat for the the Commission will send a copy of the approximately 673 kilometers (420 species under the Act. We are MF–II Challenge Process Handset Public miles) of streams and rivers in Blount, designating critical habitat for the Notice, including this SFRFA, to the Etowah, Jefferson, Lawrence, Marshall, species in four units, on public and Chief Counsel for Advocacy of the SBA. Tuscaloosa, Walker, and Winston private property totaling 673 kilometers A copy of the MF–II Challenge Process Counties, Alabama, fall within the (420 miles) of streams and rivers in Handset Public Notice, and SFRFA (or boundaries of the critical habitat Blount, Etowah, Jefferson, Lawrence, summaries thereof) will also be designation. Marshall, Tuscaloosa, Walker, and published in the Federal Register. Winston Counties, Alabama. This rule DATES: This rule is effective February 2, adds the Black Warrior waterdog to the IV. Contact Information 2018. List of Endangered and Threatened 28. For information on the one-time ADDRESSES: This final rule is available Wildlife in title 50 of the Code of 4G LTE coverage data collection, see 4G on the internet at http:// Federal Regulations at 50 CFR 17.11(h) LTE Collection Instructions Public www.regulations.gov and http:// and adds critical habitat for this species Notice, or consult the Commission’s www.fws.gov/daphne/. Comments, to 50 CFR 17.95(d). MF–II 4G LTE Data Collection web page materials, and documentation that we The basis for our action. Under the at www.fcc.gov/MF2-LTE-Collection. considered in this rulemaking will be Act, we may determine that a species is Please note that responses to the MF–II available by appointment, during endangered or threatened based on any 4G LTE data collection are due by normal business hours, at: U.S. Fish and of the following five factors: (A) The January 4, 2018. Parties with questions Wildlife Service, Alabama Ecological present or threatened destruction, about the collection should email Services Field Office, 1208 Main Street, modification, or curtailment of its [email protected] or contact Ken Lynch at Daphne, AL 36526; by telephone 251– habitat or range; (B) overutilization for (202) 418–7356 or Ben Freeman at (202) 441–5184; or by facsimile 251–441– commercial, recreational, scientific, or 418–0628. 6222. educational purposes; (C) disease or

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 258 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

predation; (D) the inadequacy of parties submit written comments on the addition of Turkey Creek (Jefferson existing regulatory mechanisms; or (E) proposals by December 5, 2016. We also County) to the critical habitat other natural or manmade factors contacted appropriate Federal and State designation. One peer reviewer affecting its continued existence. We agencies, scientific experts and recommended ‘‘other headwater have determined that the Black Warrior organizations, and other interested streams, as not to overlook streams waterdog is endangered by habitat loss parties and invited them to comment on potentially important to the recovery.’’ and water quality degradation resulting the proposal. Newspaper notices All three peer reviewers noted that these from point source and non-point source inviting general public comment were other areas have suitable habitat and pollution, urbanization, legacy effects of published in the following: AL.com; The potentially support (or may in the future past forestry and other land use Blount Countian; The Cullman Times; support) the species and would be practices, surface coal mining, Daily Mountain Eagle; Decatur Daily; crucial to the recovery of the Black sedimentation, and impoundments. Moulton Advertiser; Northwest Warrior waterdog. Under the Act, if we determine that Alabamian; and The Times Record. We Our Response: The streams any species is a threatened or did not receive any requests for a public mentioned by the commenters are endangered species we must, to the hearing. encompassed within the species’ maximum extent prudent and historical range, the upper Black determinable, designate critical habitat. Peer Reviewer Comments Warrior Basin. However, the Black Section 4(b)(2) of the Act states that the In accordance with our peer review Warrior waterdog has never been Secretary shall designate and make policy published in the Federal Register documented in these headwater streams revisions to critical habitat on the basis on July 1, 1994 (59 FR 34270), and our this far up in the basin, although some of the best available scientific data after August 22, 2016, memorandum lower segments of these streams may taking into consideration the economic updating and clarifying the role of peer contain suitable habitat. Since they do impact, national security impact, and review of listing actions under the Act, not provide connectivity between any other relevant impact of specifying we solicited expert opinions from five occupied sites for genetic exchange, and any particular area as critical habitat. knowledgeable individuals with therefore it is unknown if a population The Secretary may exclude an area from scientific expertise that included of the species could be successfully critical habitat if he determines that the familiarity with the species and the reestablished in an area that never had benefits of such exclusion outweigh the geographic region in which the species waterdogs, we determined that these benefits of specifying such area as part occurs, the species’ habitat and sites were not essential to the of the critical habitat, unless he biological needs, and conservation conservation of the species (see determines, based on the best scientific biology principles. We received response to comment 11 below). data available, that the failure to responses from four of the peer (3) Comment: One Federal agency and designate such area as critical habitat reviewers. some public commenters expressed will result in the extinction of the We reviewed all comments received concern about the use of eDNA. The species. from the peer reviewers for substantive concern relates to the potential for Economic analysis. We prepared an issues and new information regarding ‘‘false positives’’ and potential economic analysis of the impacts of critical habitat for the Black Warrior limitations of the use of eDNA as a designating critical habitat. We waterdog. The peer reviewers generally surrogate for species occurrence, as well published an announcement and concurred with our methods and as whether the use of eDNA warrants solicited public comments on the draft conclusions and provided additional consideration as the best science to economic analysis (81 FR 69475, information, clarifications, and support both listing and designating October 6, 2016). The analysis found no suggestions to improve the final listing critical habitat. significant economic impact of the and critical habitat rule. Peer reviewer Our Response: Positive eDNA designation of critical habitat. comments are summarized below and detections indicate that the DNA of the Peer review and public comment. We incorporated into the final rule as target species was present in the water sought comments from independent appropriate. sample (at the collection location), but specialists to ensure that our (1) Comment: Two reviewers stated it does not definitively reveal whether designation is based on scientifically that one of the proposed units, Lye the species is still present. Studies on sound data, assumptions, and analyses. Branch (Tuscaloosa County), should be decay rate of eDNA indicate that it We invited these peer reviewers to removed from the critical habitat remains detectable for 2–3 weeks comment on our listing proposal. We designation since the specimens following release (Dejan et al. 2011), also considered all comments and collected there were not Black Warrior and, in using this guideline, we assume information received from the public waterdog (Necturus alabamensis) but that the organismal source (Black during the comment period. another species of Necturus, the Gulf Warrior waterdog) was present in the Coast waterdog (N. beyeri). stream within the prior 2–3-week time Previous Federal Action Our Response: Based on the window. Information that eDNA cannot Please refer to the proposed listing information provided, we have removed provide is abundance of target species, rule (81 FR 69500) and the proposed the Lye Branch unit from the whether the eDNA was derived from a designation of critical habitat (81 FR designation in our critical habitat final living or dead individual(s), or if the 69475) for the Black Warrior waterdog, rule. See Summary of Changes from the population is viable. both published October 6, 2016, for a Proposed Rule, below, for more We recognize that detection of eDNA detailed description of previous Federal information. does not confirm species’ current actions concerning this species. (2) Comment: Several peer reviewers presence with absolute certainty, recommended that additional units be because the target species may have Summary of Comments and included in the critical habitat died or moved from the sampled area. Recommendations designation. Three peer reviewers Additionally, a false positive, assuming In the proposed listing and critical recommended adding Clear Creek presence of the targeted live organism at habitat rules published on October 6, (Winston County), and two of those peer a site when it is absent, can occur if the 2016, we requested that all interested reviewers also recommended the eDNA was transported to the site via a

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 259

flood, or transferred between drainages that overlaps portions of the Black Our Response: We acknowledge the by human collectors. However, because Warrior waterdog’s critical habitat, and improvements and progress that many eDNA persists for only a few weeks, the the entire range of the threatened agencies and organizations have made frequency of such false positives is flattened musk turtle (Sternotherus over the years in relation to land use likely low. A false positive could also depressus) overlaps with the range of and certified BMPs, including a 98 occur if the eDNA in a sample was from the Black Warrior waterdog. Therefore, percent compliance rate in Alabama. We a closely related species and that eDNA any activities with a Federal nexus will made changes to the listing and critical was not distinguishable from Black be subject to section 7 consultation habitat designation to reflect these Warrior waterdog eDNA. However, requirements regardless of the Black recent improvements in certified BMPs researchers have identified and applied Warrior waterdog critical habitat and forest management. We note that a eDNA markers unique to the Black designation. majority of the adverse effects of forestry Warrior waterdog that are distinct from Based on the historical consultation on waterdog habitat (e.g., sedimentation, markers in other Necturus species (e.g., rate for species that co-occur or share streambank and channel modification) de Souza et al. p. 5 and S2), thus habitat with the waterdog, the economic appear to be the legacy of activities avoiding species misidentification. analysis estimates that fewer than 2 conducted prior to the existence of the Since the Black Warrior waterdog is formal consultations, 23 informal Act and various other laws designed to difficult to capture, sampling for eDNA consultations, and 206 technical protect water quality and aquatic in the historical range of the species is assistance efforts are likely to occur in habitats. an appropriate tool, bolstering a given year. confidence in assessing whether (5) Comment: A Federal agency noted Public Comments occupancy is likely. We used eDNA to that some of its operations likely co- (7) Comment: A commenter suggested narrow our focus on sites where occur with proposed occupied and that there is not sufficient information additional sampling was more likely to unoccupied critical habitat for the Black on the Black Warrior waterdog’s biology capture live waterdogs, but we are not Warrior waterdog, at stream crossings and ecological relationships upon designating any streams as critical used to access existing transmission line which to make a listing determination. habitat, nor are we determining listing rights-of-way (ROWs) for maintenance Our Response: We are required to status, solely based on eDNA. That said, purposes and construction of new make our listing determination based on based on the comment, we have added transmission line ROWs. The Federal the best scientific and commercial data more discussion about eDNA to the final agency recommended that the Service available at the time of our rulemaking. rule. specify suitable best management We found that the Black Warrior (4) Comment: A Federal agency was practices (BMPs) at stream crossings to waterdog warrants listing as an concerned that our economic analysis minimize or prevent impacts to Black endangered species under the Act, may have been an underestimation of Warrior waterdog, so that actions at based on the severity and immediacy of the costs associated with consultations stream crossings either will not affect or threats currently impacting the species. under the Act, as well as of the number are not likely to adversely affect this The overall range has been significantly of additional consultations as a result of species. reduced, and the remaining habitat and the listing and critical habitat Our Response: For stream crossing populations face threats from a variety designation for the Black Warrior access for ROW and new transmission of factors such as water quality waterdog. line construction, the Service will degradation and small populations that Our Response: The economic analysis provide BMPs during informal or formal are isolated from each other by estimates that the incremental costs of consultation. The additional unsuitable habitat created mainly by critical habitat for the Black Warrior administrative costs of such ROW impoundments and pollution (Factors A waterdog will be limited to projects with a Federal nexus are and E) acting in combination to reduce administrative costs of consultation. described above. the overall viability of the species. The This is due to the fact that all projects In accordance with policy, as risk of extinction is high because the with a Federal nexus would already be published in the Federal Register on number of populations has decreased, subject to section 7 requirements July 1, 1994 (59 FR 34272), we added and the remaining populations are regardless of whether critical habitat is ‘‘transmission line ROW maintenance’’ small, isolated, and have limited designated due to the presence of the to the actions unlikely to result in a potential for recolonization (Factor E). waterdog or other listed species with violation of section 9 of the Act if (8) Comment: One commenter similar conservation needs. In addition, carried out in accordance with existing requested that the Black Warrior possible project modifications stemming regulations (see Available Conservation waterdog be listed as threatened instead from section 7 consultation are unlikely Measures). These actions are now stated of endangered, due to lack of to be affected by the critical habitat in the rule as ‘‘Normal agricultural information on the species’ biology and designation because (a) the species is so practices, silvicultural practices, and needs. closely associated with its aquatic transmission line ROW maintenance, Our Response: We considered the best habitat that there is unlikely to be a including herbicide and pesticide use, scientific and commercial data available difference between measures needed to which are carried out in accordance regarding the Black Warrior waterdog to avoid jeopardizing the species in areas with any existing regulations, permits, evaluate its status under the Act and of occupied habitat and (b) in and label requirements, and best found that the species meets the unoccupied areas, other listed aquatic management practices.’’ definition of endangered due to the species are impacted by similar factors species’ contracted range, loss of habitat as the waterdog. Specifically, there are State Comments due to water quality degradation 26 listed species that occur within the (6) Comment: A State agency and (sedimentation, toxins, and nutrients), Black Warrior River Basin, including 14 some private organizations provided fragmentation of the populations caused aquatic species and 2 plant species that information on forestry compliance by impoundments, rangewide (not may be found within the critical habitat rates for BMPs and stream management localized) threats, and ongoing threats for the Black Warrior waterdog. Eight of zones (SMZs) and the positive impact that are presently acting on the species. these listed species have critical habitat on water quality. A threatened species status is not

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 260 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

appropriate for this species due to a extirpated from Mulberry Fork, likely population of the species could reduction of suitable habitat available because Mulberry Fork has incurred potentially be reestablished in the area. for the species and the severity of the more habitat degradation in comparison We received public comments stressors that are imminent and to Locust Fork, where the waterdog indicating the Service inappropriately occurring rangewide, and are expected remains extant. In short, Locust Fork evaluated these units for inclusion in to continue into the future, such that the meets the definition of critical habitat critical habitat and did not explain why species is in immediate danger of under the Act for occupied habitat. these units were essential for the extinction. Additionally, only two of the Mulberry Fork, however, does not meet conservation of the Black Warrior waterdog locations support strong the definition under the Act for waterdog. In response to these numbers of animals to the point they unoccupied habitat as it is not essential comments, we reevaluated the Lake can be collected on a routine basis. At for conservation of the species and Tuscaloosa, Lost Creek, and Mulberry the remaining sites surveyed since 1990, therefore, is not included as critical Fork units, considering the four criteria only one or two waterdogs have been habitat in the final rule (see our listed above and the conservation captured, which speaks to the current response to comment 11 below). strategy for the Black Warrior waterdog, poor status of the species. We would not expect direct effects to and determined that our conclusion in (9) Comment: One commenter the species from navigation the proposed rule, that the three suggested the relevance of the flattened maintenance activities because areas unoccupied units are essential for the musk turtle as a surrogate species was with suitable physical and biological conservation of the Black Warrior not adequately explained. features in lower Locust Fork are close waterdog, was in error. Our Response: We used the flattened to the stream margins, away from the Within the Lake Tuscaloosa unit, even musk turtle as a surrogate species navigation channel. Navigation though both of these sections are because the Black Warrior waterdog and maintenance activities are unlikely to be considered to be in the historical range flattened musk turtle occupy the same affected by the critical habitat of the species, both are isolated from range and habitat, and similar factors designation any more than they would each other and other populations of Black Warrior waterdog by two large influence the habitat and conservation be by the listing of the species because of each species. However, we did not impoundments (Lake Tuscaloosa and (a) the species is so closely associated rely solely on the flattened musk turtle Holt Lake), and we had failed to with its aquatic habitat there is unlikely to discern the habitat needs of the Black consider this in the proposed rule. Upon to be a difference between measures Warrior waterdog. We also relied on further review, based on these needed to avoid jeopardizing the species information about the Neuse River impoundments, we now conclude in areas of occupied habitat and (b) in waterdog (Necturus lewisi), a closely habitat connectivity, one of the four unoccupied areas, other listed aquatic related species in the same genus, criteria we considered in determining species are impacted by similar factors because of its similar biology and life whether unoccupied areas are essential as the waterdog. Therefore, any history, as well as recently published for the conservation of the species, is activities with a Federal nexus will be Black Warrior waterdog research. not met for the Lake Tuscaloosa unit. (10) Comment: One commenter noted subject to section 7 consultation This lack of habitat connectivity with that the lower 22.5 miles of Locust Fork requirements and, if necessary, section occupied sites in turn affects the unit’s and 44.5 miles of Mulberry Fork, both 10 permitting requirements to inform satisfaction of another criterion, the of which were proposed for designation the consultation, regardless of the Black importance of the stream to the overall as critical habitat, are navigable and Warrior waterdog critical habitat status of the species and its contribution used for barge traffic. The commenter designation. to future recovery. Although this unit requested that we consider whether (11) Comment: Several private still contains suitable habitat in the those lower reaches exhibit the features organizations commented that our upper reaches and may play a role in of critical habitat for the Black Warrior proposal to designate unoccupied areas the recovery of the species, we find that waterdog. The commenter also as critical habitat had not been properly because it does not provide habitat requested that we identify measures to supported or explained in the proposed connectivity between occupied sites to allow navigation maintenance activities rule. allow for genetic exchange it is not ‘‘without unreasonable burdens of cost Our Response: In order to designate essential for the conservation of the or time’’ if Section 7 consultation or unoccupied areas, we are required by species. Section 10 permitting is required. section 3(5)(A) of the Act to determine Regarding the Lost Creek unoccupied Our Response: The Locust Fork that such areas are essential for the unit, in a site assessment completed in critical habitat unit (Unit 2) is occupied conservation of the species. We March 2000, habitat in Lost Creek was by the Black Warrior waterdog and determine from the record whether any determined to be poor to unsuitable contains the following physical or unoccupied areas are necessary to water quality for the Black Warrior biological features: Abundant rock support the species’ recovery. The waterdog (Bailey 2000, pp. 7–8). This crevices and rock slabs, leaf litter, and proposed rule outlined criteria for reduces the likelihood that a population instream flow with moderate velocity designation of critical habitat, which of waterdogs could be established in and continuous daily discharge that included a consideration of unoccupied this unit. More importantly, like the allows for a longitudinal connectivity areas that relied on the following Lake Tuscaloosa unit, upon reevaluation regime consisting of both surface runoff criteria: (1) The importance of the we have determined that this unit is and ground water sources, exclusive of stream to the overall status of the isolated from other occupied areas by an flushing flows caused by stormwater species and the contribution to the impoundment (Lake Tuscaloosa) and runoff, that are essential to the future recovery of the Black Warrior therefore lacks the connectivity to conservation of the Black Warrior waterdog; (2) whether the area could be occupied stream reaches, which in the waterdog. We have removed the restored to contain the necessary habitat proposed rule was one of the criteria for Mulberry Fork unit (Unit 6 in the to support the Black Warrior waterdog; determining that the area was essential proposed rule), including its lower 44.5 (3) whether the site provides for the conservation of the species. miles from the final critical habitat rule. connectivity between occupied sites for Similarly, the importance of the stream The Black Warrior waterdog has been genetic exchange; and (4) whether a to the overall status of the species and

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 261

the contribution to the future recovery this final critical habitat designation. Populations and Distribution are also reduced due to this lack of Although we no longer regard the Historically, the waterdog was known habitat connectivity with occupied sites. unoccupied units (Lake Tuscaloosa, from 11 sites, 2 of which have been lost While this unit still contains somewhat Lost Creek, or Mulberry Fork) as due to impoundments. Since 1990 suitable habitat in the upper reaches essential for the conservation of the (current), the waterdog has been and may play a role in the recovery of species, we recognize that these areas reported from 13 sites. These sites are in the species, we find that, because it does may offer suitable habitat through Blount (Blackburn Fork of the Little not provide habitat connectivity restoration for the Black Warrior Warrior River), Marshall (Slab Creek, between occupied sites to allow for waterdog and may be useful for ex situ tributary to Locust Fork), Tuscaloosa genetic exchange, it is not essential for (offsite) conservation measures at a (Yellow Creek, North River, Carroll the conservation of the species. future time. Creek, Mulberry Fork), Walker (Lost Regarding the Mulberry Fork unit, as Creek, Little Blackwater Creek), and with the other two units we have, upon Summary of Changes From the Winston (Sipsey Fork, Blackwater reevaluation, determined that Proposed Rule Creek, Browns Creek, Brushy Creek, impounded areas at the confluence of We made the following significant Capsey Creek) Counties, Alabama. Each occupied tributary streams prohibit changes to the rule based on peer review natural recolonization of this unit. The and public comments: We have of the 13 sites verified as a Black lower reach of Mulberry Fork is removed four units from the final Warrior waterdog locality represents an impounded by Bankhead Lake as far critical habitat designation—the Lye individual population. Information concerning the current upstream as the mouth of Blackwater Branch, Lake Tuscaloosa, Lost Creek, status of Black Warrior waterdog Creek (Bailey 2000, p. 9). In a site and Mulberry Fork units. populations is limited. Only the Sipsey assessment completed in March 2000, Based on further analysis after taking Fork and Brushy Creek populations, in habitat was described as a sluggish, into consideration information provided muddy, and impounded area at the during the comment period, it was Bankhead National Forest (BNF), appear confluence with Sipsey Fork (Bailey determined that the Lye Branch stream to be maintaining numbers sufficient 2000, p. 10). While this unit does segment (16 kilometers (10 miles)) (set enough to be captured regularly. At connect to the occupied Blackwater forth in the proposed rule as Unit 1) was other sites surveyed since 1990, only Creek unit, the large expanse of not historically occupied by the Black one or two waterdogs have been impounded water provides a barrier to Warrior waterdog but by another species captured. In Sipsey Fork, 52 waterdogs the Black Warrior waterdogs expanding of waterdog. Based on this information, were captured over a 3-year period, from the occupied unit into Mulberry we determined that the unit is outside representing 173,160 trap hours, a rate Fork. Therefore, since the Mulberry the known historical range of the Black of 1 waterdog per 3,330 trap hours Fork unit is isolated from other Warrior waterdog. (Durflinger-Moreno et al. 2006, pp. 70– occupied areas by impounded areas of As described in our response to 71). A high proportion of sexually unsuitable habitat, it does not meet the Comment 11, we have also removed the mature individuals were captured connectivity criteria we considered in Lake Tuscaloosa unit, approximately during this period, suggesting that determining whether unoccupied areas 108 rkm (67 rmi) of stream and river recruitment and survival rates of the are essential for the conservation of the habitat (set forth in the proposed rule as young age classes may be low in Sipsey species. The importance of the stream to Unit 2), the Lost Creek unit, Fork (Durflinger-Moreno et al. 2006, p. the overall status of the species and the approximately 93 rkm (58 rmi) of stream 79). More recently, in surveys from 2012 contribution to the future recovery are and river habitat (set forth in the to 2016 (Godwin 2016, entire), seven also reduced due to this lack of habitat proposed rule as Unit 4), and the waterdogs were captured in Sipsey Fork connectivity with occupied sites. While Mulberry Fork unit, approximately 183 (408 trap-nights; catch per unit effort this unit still contains somewhat rkm (114 rmi) of stream habitat (set forth (CPUE) = 0.017 waterdogs per trap- suitable habitat in the upper reaches in the proposed rule as Unit 6) from the night) and four were captured in Brushy and may play a role in the recovery of final critical habitat designation because Creek (140 trap-nights; CPUE = 0.029). the species, we find that it does not after further analysis we determined The density of Black Warrior waterdogs provide habitat connectivity between that those unoccupied areas were not in Sipsey Fork and Brushy Creek in occupied sites to allow for genetic essential for the conservation of the BNF, relative to the lower densities exchange and is not essential for the species and therefore did not fall within detected at other sites in the species’ conservation of the species. the definition of ‘‘critical habitat.’’ range, indicates the importance of this Although the proposed units Lake federally owned land for the species’ Summary of Biological Status Tuscaloosa, Lost Creek, and Mulberry recovery and long-term survival. Fork may have some degree of suitable The Black Warrior waterdog is a large, Because Black Warrior waterdogs are habitat in the upper reaches and may be aquatic, nocturnal salamander that extremely difficult to detect in surveys, able to support the reintroduction of permanently retains a larval form and little is known regarding the species’ Black Warrior waterdogs, in the external gills throughout its life (Conant demography. However, we may infer proposed rule we incorrectly and Collins 1998, pp. 419–420). Found some of the characteristics of a healthy determined that these areas were only in streams within the Black population based on capture data from essential for the conservation of the Warrior River Basin (Basin) in Alabama, the most the robust extant population species, as noted in the public the waterdog inhabits streams above the (Durflinger-Moreno 2006, entire) in the comments. However, we correctly Fall Line, which is the contact zone Sipsey Fork drainage. We would expect identified these units as providing between the Coastal Plain and the a healthy population at a minimum to habitat for reintroduction and future adjacent Piedmont physiographic have an adult sex ratio close to 1:1. recovery activities. province. Due to their highly permeable Additionally, a stable population would Therefore, we have determined that skin (Duellman and Trueb 1986, p. 197) be expected to have larval, juvenile, and these four units are not essential for and external gills, Black Warrior adult age classes present annually, as a Black Warrior waterdog conservation waterdogs are very sensitive to declines measure of stable recruitment and and have not included these units in in water quality. reproduction rates. Species’ abundance

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 262 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

data are lacking, but in 1938, during water body.’’ Positive eDNA detections Necturus waterdogs are somewhat spring and fall, 135 specimens were indicate that the DNA of the targeted limited. As closely related species in the collected at a single site in Mulberry species was present in a water sample same genus, there are general Fork (Bart et al. 1997, p. 193). In at the collection location but do not characteristics that all Necturus species comparison, 52 waterdogs were definitively tell us that the species is share, such as retention of the larval captured in Sipsey Fork over three years still present. Studies on decay rate of state (e.g., gills) as adults. As an of sampling, in 1994, 1995 and 1997. eDNA indicate it remains 2 to 3 weeks example, although geographically Thus, based on these historic and following release (Dejean et al. 2011), separated (allopatric), the Black Warrior current data, and given the Sipsey Fork and, in using this guideline, we assume waterdog and the Neuse River waterdog population is likely depressed relative that the organismal source (Black both utilize high-gradient streams that to historic populations, a recovered or Warrior waterdog) was present in the are above the Fall Line and contain hard conserved species could be estimated to stream within the prior 2- to 3-week substrate, leafpacks, and have aggregations of at least 100 time window. Information that eDNA macroinvertebrates. Because the two individuals per year, represented by all cannot provide is the abundance of the species likely evolved in similar age classes, and at multiple sites within target species, whether the eDNA was habitats, an influential factor in each currently occupied sub-basin in derived from living or dead individuals, determining life-history traits, we used the Black Warrior river. or if the population is viable. the Neuse River waterdog as a surrogate The captures of four waterdogs in To prevent incorrectly identifying to decipher some of the biological and Brushy Creek confirmed the accuracy of presence of Black Warrior waterdog ecological attributes that have not yet eDNA (environmental DNA, described based on eDNA when a similar species been determined for the Black Warrior below) previously detected in Brushy was present, de Souza et al. (2016 p. 5 waterdog. When such data were lacking Creek water samples (de Souza et al. and S2) included DNA from similar for the Neuse River waterdog and Black 2016, p. 8). In 2013 and 2014, eDNA Necturus species in analyses of the Warrior waterdog, we relied on data samples indicated Black Warrior eDNA samples from the Black Warrior from other Necturus species. waterdogs may still present in Rush drainage. Part of the eDNA analyses Creek (Brushy Creek tributary) and included a primer search (primers are Summary of Factors Affecting the Locust Fork, and newly found in Gurley used to amplify DNA samples) that Species Creek (Locust Fork tributary) and identified the primers that combined The Act directs us to determine Yellow Creek (Big Yellow Creek/Black with Black Warrior waterdog DNA but whether any species is an endangered Warrior River tributary), although no not the DNA of non-target Necturus species or a threatened species because waterdogs were captured at the time species (de Souza et al. 2016, S2). Non- of any one of five factors affecting its (Godwin 2014, pers. comm.). Similarly, target species (those to avoid continued existence. In this section, we in 2016, a Black Warrior waterdog was misidentifying as Black Warrior summarize the factors affecting the captured in Yellow Creek, validating the waterdog) in the analyses were N. Black Warrior waterdog to assess the results of the eDNA survey in that lodingi, an undescribed species in Gulf species’ viability. For additional detail, stream. drainages from Mobile Bay eastward see the proposed listing rule (81 FR Detecting the presence of the Black (Shelton-Nix, p. 200), mudpuppy, dwarf 69500, October 6, 2016). Warrior waterdog is difficult, waterdog, and Gulf Coast waterdog. Factor A. The Present or Threatened presumably because the species Among the non-target species only the Destruction, Modification, or currently occurs only at low densities. Gulf Coast waterdog could potentially Curtailment of Its Habitat or Range The relationship between cumulative co-occur naturally at sites along the Fall number of site visits and the cumulative Line, since its range extends from the Water quality degradation is number of sites containing waterdogs Coastal Plain to the Fall Line, whereas considered the primary reason for the indicated that 200 additional surveys the Black Warrior waterdog range extirpation of the Black Warrior would be needed to discover a single extends from the Piedmont to the Fall waterdog over much of its historical new locality for the species (Guyer Line. It is also possible that mudpuppies range (Bailey 2000, pp. 19–20). Together 1997, p. 4). This relationship is further could co-occur as a result of with large impoundments (discussed supported by the findings of de Souza introductions by human transport from below), it is the predominant threat to (2016, p. 10), which indicated that, at an the Tennessee River drainage, which the continued existence of the species. occupied site, 10 and 32 eDNA replicate lies just north of Black Warrior drainage Changes in water chemistry and flow water samples in the cool season and divide. In summary, given the analytical patterns, resulting in a decrease in water warm season, respectively, would be design applied to the eDNA, it is quality and quantity, have detrimental necessary for 95 percent detection unlikely any samples were from effects on salamander ecology because probability of the waterdog. Necturus species other than Black they can render aquatic habitat Only through the use of eDNA have Warrior waterdog. unsuitable. Substrate modification is we been able to determine that the also a major concern for aquatic waterdog is likely present at some Biology and Habitat salamander species (Geismar 2005, p. 2; historical locations. Researchers use Black Warrior waterdogs are O’Donnell et al. 2006, p. 34). When eDNA as a surveillance tool to monitor associated with stream depths of 1 to 4 interstitial spaces between substrates for the genetic presence of an aquatic meters (m) (3.3 to 13.1 feet (ft)), reduced become compacted or filled with fine species. According to Strickler (2015, sedimentation, and large leaf packs sediment, the amount of available p. 1), ‘‘. . . when an aquatic animal (leaves that fall into streams accumulate foraging habitat and protective cover for can’t be seen or heard, it leaves traces in packs usually behind branches, rocks, salamanders is reduced, resulting in of itself in the water by shedding skin, and other obstructions) supporting population declines. Most streams excreting waste, releasing gametes and mayfly (Ephemeroptera spp.) and surveyed for the Black Warrior waterdog decomposing. Investigators collect a caddisfly (Trichoptera spp.) larvae. showed evidence of water quality water sample to detect the target Except for habitat affinities, life- degradation and were correspondingly species’ DNA and determine whether history data concerning the Black biologically depauperate, lacking the the species has recently been in the Warrior waterdog and other species of full complement of species that would

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 263

be expected under natural, undisturbed related to the amount and type of program in which mills will not accept habitat conditions (Bailey 1992, p. 2; habitat within the entire watershed, as timber from foresters who do not Bailey 1995, p. 11; Durflinger-Moreno opposed to areas immediately adjacent comply with SMZ requirements. et al. 2006, p. 78). to the stream (Willson and Dorcas 2003, Surface Coal Mining pp. 768–770). Discharges Large population centers such as the Surface coal mining represents Contributors to water quality cities of Birmingham, Tuscaloosa, and another threat to the biological integrity degradation in the Black Warrior Basin Jasper contribute substantial runoff to of streams in the Basin and has include point source (end of pipe) the Black Warrior Basin. The watershed undoubtedly affected the distribution of discharges and runoff from urban, occupied by these three cities contains the Black Warrior waterdog (Bailey mining, agricultural and, historically, more industrial and residential land 1995, p. 10). Strip mining for coal forestry land uses (Deutsch et al. 1990, area than other river basins in Alabama. results in hydrologic disturbance (i.e., pp. 1–62; Upper Black Warrior Streams draining these areas have a erosion, sedimentation, decline in Technical Task Force 1991, p. 1; O’Neil history of serious water quality groundwater levels, and general and Sheppard 2001, p. 2). These sources problems, as described above. Entire degradation of water quality) that affects contribute pollution to the Basin via species of fish, mussels, and snails many aquatic organisms (Service 2000, sediments, fertilizers, herbicides, (Mettee et al. 1989, pp. 14–16; Hartfield p. 12). Runoff from coal surface mining pesticides, animal wastes, septic tank 1990, pp. 1–8), and populations of the can generate pollution through and gray water leakage, and oils and flattened musk turtle (Service 1990, p. acidification, increased mineralization, greases. Pollution has a direct effect on 3), have been extirpated from large areas and sediment loading. Impacts are more the survival of Black Warrior waterdogs, of the watershed primarily due to water often associated with past activities and which, due to their highly permeable quality degradation. abandoned mines, since presently skin (Duellman and Trueb 1986, p. 197) operating mines are required to employ and external gills, are very sensitive to Spills environmental safeguards established by declines in water quality. Associated with urbanization is the the Federal Surface Mining Control and development of transportation systems, Reclamation Act of 1977 (30 U.S.C. 1201 Urbanization including roads, rails, airports, locks, et seq.) and the Clean Water Act of 1972 Urbanization is a significant source of and docks. Accidents, crashes, and (33 U.S.C. 1251 et seq.) (Service 2000, water quality degradation that can derailments, resulting in spills, occur p. 12). reduce the survival of aquatic along these transportation corridors. Coal mining in the Basin is currently organisms, including the Black warrior Since 1990, more than 1,200 spills in a threat to the Black Warrior waterdog. waterdog (Bowles et al. 2006, p. 119; the Basin have been reported to the U.S. Abandoned mines that have been Chippindale and Price 2005, pp. 196– Coast Guard National Response Center. inadequately reclaimed will continue to 197). Urban development can stress One of several spills in the Basin took contribute pollutants to streams into the aquatic systems in a variety of ways, place in the Black Warrior River in future. Recently, new coal mines, which including increasing the frequency and 2013. Approximately 164 gallons of have the potential to discharge magnitude of high flows in streams, crude oil were accidently pumped into additional pollutants into the waters in increasing sedimentation, increasing the river. Emergency response teams the range of the Black Warrior waterdog, contamination and toxicity, and cleaned the river, but a sheen of crude have been proposed in Sipsey Fork and changing stream morphology and water oil remained visible (Taylor 2013, Mulberry Fork (Dillard 2011, pers. chemistry (Coles et al. 2012, pp. 1–3, 24, entire). The threat from spills remains comm.; Alabama Surface Mining 38, 50–51). Sources and risks of an acute unchanged. Commission 2012, pp. 1–4). or catastrophic contamination event, such as a leak from an underground Forestry Impoundments storage tank or a hazardous materials Runoff from forestry operations and In addition to water quality spill on a highway, increase as road construction has been a source of degradation, creation of large urbanization increases. pollution in the Basin when certified impoundments has reduced suitable Several researchers have examined BMPs were not followed to protect habitat within the Basin. Two historical the negative impact of urbanization on streamside management zones (Hartfield populations of the Black Warrior stream salamander habitat, finding 1990, pp. 4–6; Service 2000, p. 13). waterdog, Black Warrior River near connections between salamander Forestry activities that were poorly or Tuscaloosa and Mulberry Fork at abundances and levels of development inadequately managed in the past can Cordova, have been lost due to within a watershed. A study on the have long-lasting effects in the high- impoundments. Impoundments behind dusky salamander (Desmognathus gradient, highly erodible soils within Bankhead, Lewis, and Holt dams have fuscus) in Georgia (Orser and Shure the Basin, as seen by the legacy effects flooded thousands of hectares (acres) of 1972, p. 1,150) found a decrease in on Bankhead National Forest (Laschet habitat previously considered suitable stream salamander density with 2014, pers. obs.). However, modern for the Black Warrior waterdog. The increasing urban development. A forestry operations in Alabama have a entire main channel of the Black similar relationship between certified BMP compliance of 98 percent Warrior River, over 272 kilometers (km) populations and urbanization was found and, therefore, mostly are not currently (170 miles (mi)), has been affected by for dusky salamander, two-lined significant contributors to nonpoint impoundments (Hartfield 1990, p. 7), salamander (Eurycea bislineata), source pollution. According to which do not have the shallow, flowing southern two-lined salamander (E. Alabama’s BMPs for forestry, SMZs water associated with the waterdog. As cirrigera), and other species in North should be a width of 35 ft (50 ft for a result, impoundments generally are Carolina (Price et al. 2006, pp. 437–439; sensitive areas) from the stream bank, unsuitable habitat for the species, Price et al. 2012a, p. 198), Maryland, providing a level of protection to although on one occasion two waterdogs and Virginia (Grant et al. 2009, pp. instream habitat. Recently, the forest were found in the upper end of Lewis 1,372–1,375). Abundance of dusky and industry has begun to self-regulate Smith Reservoir (U.S. Forest Service two-lined salamanders was most closely SMZs through a third-party certification record, in Godwin 2016, p. 5) where

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 264 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

Sipsey Fork enters and stream habitat almost certainly an occurrence for Black Black Warrior Basin, is often attributed transitions to lake habitat. The Warrior waterdogs as well. A study of to mining activities (Dodd et al. 1988, abundance of large predatory fish in dwarf waterdog (N. punctatus) feeding pp. 55–61; Mettee et al. 1989, pp. 12– impoundments further renders them behavior in the presence of predators 13; Hartfield 1990, pp. 1–8; Bailey and unsuitable for the Black Warrior indicated movement of the species to Guyer 1998, pp. 77–83; Service 2000, waterdog. leaf pack habitat was driven by food pp. 12–13), even though SMCRA is in Historically, Brushy Creek was a availability rather than predator effect. tributary of Sipsey Fork. Construction of avoidance (Sollenberger 2013, entire). The Alabama Department of Lewis Smith Reservoir separated the Given the very infrequent observations Conservation and Natural Resources flowing connection between Brushy of predation on waterdogs and no (ADCNR) recently added the Black Creek and Sipsey Fork, essentially reports of deleterious effects of Warrior waterdog to its list of non-game splitting the single BNF population in predation on Necturus species, we do State-protected species (ADCNR 2012, two isolated halves. Impoundments not consider predation to be an pp. 1–4). Although this change will have been entrapments for waterdogs, important factor influencing Black make it more difficult to obtain a isolating and inhibiting genetic Warrior waterdog populations. collecting permit for the species, it does exchange between populations in Therefore, the best available data do not not offer any additional protection for tributaries no longer connected by indicate that disease or predation is a habitat loss and degradation. The suitable flowing habitat. threat to the Black Warrior waterdog in ADCNR also recognizes the Black its preferred habitat outside of Summary of Factor A Warrior waterdog as a Priority 2 species impounded areas, which harbor greater of high conservation concern in its State The Black Warrior waterdog has densities of larger fish predators and are Wildlife Action Plan due to its rarity experienced substantial destruction, more open than stream habitats, and restricted distribution (ADCNR modification, and curtailment of its providing less cover for avoiding 2005, p. 298). However, this designation habitat and range. Specific species potential predators such as birds. also does not offer any regulatory stressors include degradation of water protections. quality and habitat from point source Factor D. The Inadequacy of Existing Regulatory Mechanisms Alabama Department of discharges and runoff, urbanization, Environmental Management (ADEM) legacy effects of poor forest Under this factor, we examine has established minimum water-quality management, surface coal mining, whether existing regulatory mechanisms standards for some occupied stream agriculture, and the construction of are inadequate to address the threats to segments within the Black Warrior River dams and their impoundments, together the Black Warrior waterdog discussed drainage under the authority of the affecting hundreds of stream miles in under other factors. Section 4(b)(1)(A) of Clean Water Act of 1972. These the species’ range. The amount of the Act requires the Service to take into standards are believed to be protective habitat already lost amplifies the current account ‘‘those efforts, if any, being of aquatic species. In Locust Fork, and future threat from point and made by any State or foreign nation, or Mulberry Fork, and other tributaries of nonpoint source pollution, accidental any political subdivision of a State or the Black Warrior River occupied by the spills, and violation of permitted foreign nation, to protect such species.’’ Black Warrior waterdog, a combined discharges. Due to a reduction of In relation to Factor D under the Act, we total of 275 km (171 mi) have been suitable habitat available for the species interpret this language to require the identified on the Alabama 303(d) List (a and the severity and magnitude of this Service to consider relevant Federal, list of water bodies failing to meet their stressor, we consider the present or State, and Tribal laws and regulations, designated water-use classifications) as threatened destruction, modification, or and other such mechanisms that may impaired by siltation and nutrients curtailment of habitat and range a threat minimize any of the threats we describe (ADEM 2010, pp. 1–3). The sources of in threat analyses under the other four to the Black Warrior waterdog. While these impairments have been identified factors, or otherwise enhance changes to land management and river as runoff from agricultural fields, conservation of the species. We give operations have reduced impacts to the abandoned surface mines, and strongest weight to statutes and their river system, ongoing activities continue industrial or municipal sites. Multiple implementing regulations and to to affect water quality. stream reaches within the occupied management direction that stems from habitat of the Black Warrior waterdog Factor B. Overutilization for those laws and regulations. An example (Locust Fork, Mulberry Fork, Yellow Commercial, Recreational, Scientific, or would be State governmental actions Creek, and North River) fail to meet Educational Purposes enforced under a State statute or current regulatory standards. Even with Based on best available data, there is constitution, or Federal action under current regulations, surviving waterdog no evidence that overutilization for statute. populations are negatively affected by commercial, recreational, scientific, or The Federal Surface Mining Control discharges, highway construction, educational purposes is a threat to the and Reclamation Act of 1977 (SMCRA), mining (current and unreclaimed sites), Black Warrior waterdog. as amended December 22, 1987, requires all permitted mining operations and other activities with a Federal Factor C. Disease or Predation to minimize disturbances and adverse nexus (see discussion under Factor A, No diseases or incidences of impacts to fish, wildlife, and related above). predation have been reported for the environmental values, as well as Factor E. Other Natural or Manmade Black Warrior waterdog. Also, there is implement enhancement measures Factors Affecting Its Continued no evidence of predation on Necturus where practicable. It further recognizes Existence species by fish in creeks and streams as the importance of land and water reported by Bart and Holzenthal (1985, resources restoration as a high priority Demographic Factors p. 406). Predation of adult mudpuppy in reclamation planning. However, the The remaining Black Warrior (N. maculosus) by fish, crayfish, turtles continued decline of many species, waterdog populations are isolated from and watersnakes has been observed including the flattened musk turtle, each other by unsuitable habitat created rarely (Petranka 1998, p. 429), and is fishes, and a number of mussels in the by impoundments, pollution, and other

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 265

factors as described under the Factor A 2013, pp. 15–16). In the southeastern The Black Warrior waterdog is discussion, above. Waterdog population United States the frequency, duration, currently in danger of extinction densities are low even in the relatively and intensity of droughts are likely to throughout its entire range due to the best localities, and factors related to low increase (Thomas et al. 2009, p. 112). immediacy and severity of threats population compound these threats. Droughts cause decreases in water flow currently impacting the species. The Species that are restricted in range and dissolved oxygen levels and risk of extinction is high because there and population size are more likely to increases in temperature in the river are few (13) extant populations and the suffer loss of genetic diversity due to system. Studies of aquatic salamanders majority of the populations are small genetic drift, potentially increasing their have reported decreased occupancy, and isolated. Several of these susceptibility to inbreeding depression, loss of eggs, decreased egg-laying, and populations are likely below the decreasing their ability to adapt to extirpation from sites during periods of effective size needed to remain viable environmental changes, and reducing drought (Camp et al. 2000, p. 166; Miller without human intervention, owing to the fitness of individuals (Soule 1980, et al. 2007, pp. 82–83; Price et al. 2012b, barriers to natural immigration. pp. 157–158; Hunter 2002, pp. 97–101; pp. 317–319). Therefore, on the basis of the best Allendorf and Luikart 2007, pp. 117– available scientific and commercial 146). These low population densities Determination of Status information, we list the Black Warrior combined with fragmentation of habitat Section 4 of the Act (16 U.S.C. 1533), waterdog as an endangered species. We renders populations extremely and its implementing regulations at 50 find that a threatened species status is vulnerable to inbreeding depression CFR part 424, set forth the procedures not appropriate for this species due to (negative genetic effects of small for determining whether a species is an a reduction of suitable habitat available populations, e.g., Wright et al. 2008, p. endangered species or threatened for the species and the severity of the 833) and may reduce mating to a species and should be included on the stressors that are imminent and frequency insufficient to sustain Federal Lists of Endangered and occurring rangewide, are ongoing, and populations with newly recruited Threatened Wildlife and Plants (i.e., are expected to continue into the future, cohorts. Additionally, low population ‘‘listed’’). Under section 4(a)(1) of the such that the species is in immediate densities reduce species’ resiliency to Act, we may list a species based on (A) danger of extinction. Additionally, only catastrophic events such as floods, The present or threatened destruction, two waterdog populations appear to be droughts, or chemical spills (Black modification, or curtailment of its maintaining numbers sufficiently large Warrior River Watershed Management habitat or range; (B) Overutilization for to be captured regularly. At the Plan n.d., p. 4.4), which may be commercial, recreational, scientific, or remaining sites surveyed since 1990, compounded by the effects of climate educational purposes; (C) Disease or only one or two waterdogs have been change in the future (see discussion predation; (D) The inadequacy of captured, which speaks to the current below). It is likely that some of the existing regulatory mechanisms; or (E) poor status of the species. Because of Black Warrior waterdog populations are Other natural or manmade factors the contracted range and small below the effective population size affecting its continued existence. Listing population size of Black Warrior required to maintain long-term genetic waterdog and because the threats are actions may be warranted based on any and population viability. The long-term occurring rangewide, are ongoing, and of the above threat factors, singly or in viability of a species is based on the are expected to continue into the future, combination. conservation of numerous populations we conclude that the species is in throughout its geographic range (Harris Determination of Status Throughout All immediate danger of extinction. 1984, pp. 93–104), which provides a of the Species’ Range level of redundancy that reduces the Determination of Status in a Significant risk of environmental change to the We have carefully assessed the best Portion of the Range species as a whole (Shaffer and Stein scientific and commercial data available The Act defines an endangered 2000, p. 310). The level of isolation and regarding the past, present, and future species as any species that is ‘‘in danger fragmentation of Black Warrior threats to the Black Warrior waterdog. of extinction throughout all or a waterdog populations makes natural Two populations have been extirpated significant portion of its range’’ and a repopulation following localized due to construction of dams that threatened species as any species ‘‘that extirpations virtually impossible eliminated habitat on the Black Warrior is likely to become endangered within without human intervention. River (Factor A). Current threats to the the foreseeable future throughout all or species include habitat destruction and a significant portion of its range.’’ The Climate Change degradation from point source phrase ‘‘significant portion of its range’’ Climate change has the potential to pollution, runoff, and contaminant is not defined by the Act, and a district increase vulnerability of the Black spills from industry, urbanization, court has held that aspects of the Warrior waterdog to random surface coal mining, agriculture, and Service’s Final Policy on Interpretation catastrophic events. Various emissions legacy effects of past forestry practices of the Phrase ‘‘Significant Portion of Its scenarios suggest that, by the end of the (Factor A). The small size and level of Range’’ in the Endangered Species Act’s 21st century, average global fragmentation of remaining Black Definitions of ‘‘Endangered Species and temperatures are expected to increase Warrior waterdog populations leaves the ‘‘Threatened Species’’ (79 FR 37577 0.3 °C to 4.8 °C (0.5 °F to 8.6 °F), relative species vulnerable to inbreeding (July 1, 2014)) (SPR Policy) were not to the period 1986–2005 (IPCC 2013, p. depression and reduced genetic fitness, valid. Center for Biological Diversity v. 15). By the end of 2100, it is virtually natural stochastic events, including Jewel, No. 14–cv–02506–RM (D. Ariz. certain that there will be more frequent storms and droughts (Factor E). Existing Mar. 29, 2017) (Pygmy-Owl Decision). hot and fewer cold temperature regulatory mechanisms have not led to Although the court’s order in that case extremes over most land areas on daily a reduction or removal of threats has not yet gone into effect, if the court and seasonal timescales, and it is very impacting the Black Warrior waterdog denies the pending motion for likely that heat waves and extreme (Factor D). These ongoing threats to the reconsideration, the SPR Policy would precipitation events will occur with a species are rangewide and expected to become vacated. Therefore, we have higher frequency and intensity (IPCC continue in the future. examined the plain language of the Act

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 266 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

and court decisions addressing the definitions of ‘‘endangered species’’ and requirements for Federal protection, and Service’s application of the SPR phrase ‘‘threatened species.’’ This suggests that prohibitions against certain practices. in various listing decisions, and for Congress intended that an analysis Recognition through listing actions purposes of this rulemaking we are based on consideration of the entire results in public awareness and applying the interpretation set out range should receive primary focus. conservation by Federal, State, Tribal, below for the phrase ‘‘significant Thus, the first step we undertook, and local agencies; private portion of its range’’ and its context in above, in our assessment of the status of organizations; and individuals. The Act determining whether or not a species is the species was to determine its status encourages cooperation with the States an endangered species or a threatened throughout all of its range. Having and other countries and calls for species. Because the interpretation we determined that the species is in danger recovery actions to be carried out for are applying is consistent with the SPR of extinction throughout all of its range, listed species. The protection required Policy, we summarize herein the bases we now examine whether it is necessary by Federal agencies and the prohibitions for our interpretation, and also refer the to determine its status throughout a against certain activities are discussed, public to the SPR Policy itself for a significant portion of its range. in part, below. more-detailed explanation of our We conclude that in this situation we The primary purpose of the Act is the reasons for interpreting the phrase in do not need to conduct an SPR analysis. conservation of endangered and this way. This conclusion is consistent with the threatened species and the ecosystems An important factor that influences Act because the species is currently in upon which they depend. The ultimate the question of whether an SPR analysis danger of extinction throughout all of its goal of such conservation efforts is the is necessary here is what the range due either to high-magnitude recovery of these listed species, so that consequence would be if the Service threats across its range, or to threats that they no longer need the protective were to find that the Black Warrior are so high in particular areas that they measures of the Act. Section 4(f) of the waterdog is in danger of extinction or severely affect the species across its Act calls for the Service to develop and likely to become so throughout a range. Therefore, the species is in implement recovery plans for the significant portion of its range. Two danger of extinction throughout every conservation of endangered and district court decisions have evaluated portion of its range, and an analysis of threatened species. The recovery whether the outcomes of the Service’s whether the species is in danger of planning process involves the SPR determinations were reasonable. As extinction or likely to become so identification of actions that are described in the SPR Policy, both courts throughout any significant portion of its necessary to halt or reverse the species’ found that, once the Service determines range would be redundant and decline by addressing the threats to its that a ‘‘species’’—which can include a unnecessary. In addition, because the survival and recovery. The goal of this species, subspecies, or DPS under ESA phrase ‘‘significant portion of its range’’ process is to restore listed species to a Section 3(16)—meets the definition of (SPR) could provide a second and point where they are secure, self- ‘‘endangered species’’ or ‘‘threatened independent basis for listing the Black sustaining, and functioning components species,’’ the species must be listed in Warrior waterdog in its entirety, an SPR of their ecosystems. its entirety and the Act’s protections analysis could would be either Recovery planning includes the applied consistently to all members of unnecessary or confusing. An SPR development of a recovery outline, that species (subject to modification of analysis could lead to a conclusion that, shortly after a species is listed, and protections through special rules under in addition to being an ‘‘endangered preparation of a draft and final recovery sections 4(d) and 10(j) of the Act). See species’’ because of its status throughout plan. The recovery outline guides the Defenders of Wildlife v. Salazar, 729 F. all of its range, the Black Warrior immediate implementation of urgent Supp. 2d 1207, 1222 (D. Mont. 2010) waterdog is also an ‘‘endangered recovery actions and describes the (delisting of the Northern Rocky species’’ or ‘‘threatened species’’ process to be used to develop a recovery Mountains DPS of gray wolf; appeal because of its status throughout a plan. Revisions of the plan may be done dismissed as moot because of public law significant portion of its range. The to address continuing or new threats to vacating the listing, 2012 U.S. App. former clearly would be an unnecessary the species, as new substantive LEXIS 26769 (9th Cir. Nov. 7, 2012)); finding, because we have already information becomes available. The WildEarth Guardians v. Salazar, No. determined that the species is an recovery plan also identifies recovery 09–00574–PHX–FJM, 2010 U.S. Dist. ‘‘endangered species’’ because of its criteria for review of when a species LEXIS 105253, 15–16 (D. Ariz. Sept. 30, status throughout all of its range. The may be ready for downlisting or 2010) (Gunnison’s prairie dog). The latter would create confusion because it delisting, and methods for monitoring issue has not been addressed by a could lead to a conclusion that the recovery progress. Recovery plans also Federal Court of Appeals. species warrants listing both as an establish a framework for agencies to Consistent with the district court case endangered species (because of its status coordinate their recovery efforts and law, we interpret that the consequence throughout all of its range) and as a provide estimates of the cost of of finding that the Black Warrior threatened species (because of its status implementing recovery tasks. Recovery waterdog is in danger of extinction or in the SPR). We accordingly conclude teams (composed of species experts, likely to become so throughout a that we do not need to conduct further Federal and State agencies, significant portion of its range would be analysis of whether the Black Warrior nongovernmental organizations, and that the entire species would be listed waterdog is in danger of extinction or stakeholders) are often established to as an endangered species or threatened likely to become so in the foreseeable develop recovery plans. When species, respectively, and the Act’s future throughout a significant portion completed, the recovery outline, draft protections would be applied to all of its range. recovery plan, and the final recovery individuals of the species wherever plan will be available on our website found. Thus, the ‘‘throughout all’’ Available Conservation Measures (http://www.fws.gov/endangered), or phrase and the SPR phrase provide two Conservation measures provided to from our Alabama Ecological Services independent bases for listing. We note species listed as endangered or Field Office (see ADDRESSES). that in the Act Congress placed the ‘‘all’’ threatened under the Act include Implementation of recovery actions language before the SPR phrase in the recognition, recovery actions, generally requires the participation of a

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 267

broad range of partners, including other Management; issuance of section 404 information, the following actions are Federal agencies, States, Tribes, Clean Water Act permits by the U.S. unlikely to result in a violation of nongovernmental organizations, Army Corps of Engineers; construction section 9, if these activities are carried businesses, and private landowners. and maintenance of gas pipeline and out in accordance with existing Examples of recovery actions include power line rights-of-way by the Federal regulations and permit requirements; habitat restoration (e.g., restoration of Energy Regulatory Commission; this list is not comprehensive: native vegetation), research, captive construction and maintenance of roads (1) Normal agricultural practices, propagation and reintroduction, and or highways by the Federal Highway silvicultural practices, and transmission outreach and education. The recovery of Administration; land management line ROW maintenance, including many listed species cannot be practices supported by programs herbicide and pesticide use, which are accomplished solely on Federal lands administered by the U.S. Department of carried out in accordance with any because their range may occur primarily Agriculture; Environmental Protection existing regulations, permit, and label or solely on non-Federal lands. To Agency pesticide registration; and requirements, and certified best achieve recovery of these species projects funded through Federal loan management practices; and requires cooperative conservation efforts programs which include, but are not (2) Normal residential development on private, State, and Tribal lands. limited to, roads and bridges, utilities, and landscape activities, which are Following publication of this listing recreation sites, and other forms of carried out in accordance with any rule, funding for recovery actions will development. existing regulations, permit be available from a variety of sources, The Act and its implementing requirements, and best management including Federal budgets, State regulations set forth a series of general practices. programs, and cost share grants for non- prohibitions and exceptions that apply Based on the best available Federal landowners, the academic to endangered wildlife. The prohibitions information, the following activities community, and nongovernmental of section 9(a)(1) of the Act, codified at may potentially result in a violation of organizations. In addition, pursuant to 50 CFR 17.21, make it illegal for any section 9 the Act; this list is not section 6 of the Act, the State of person subject to the jurisdiction of the comprehensive: Alabama would be eligible for Federal United States to take (which includes (1) Unauthorized introduction of funds to implement management harass, harm, pursue, hunt, shoot, nonnative species that compete with or actions that promote the protection or wound, kill, trap, capture, or collect; or prey upon the Black Warrior waterdog; recovery of the Black Warrior waterdog. to attempt any of these) endangered (2) Unauthorized collecting, handling, Information on our grant programs that wildlife within the United States or on possessing, selling, delivering, carrying, are available to aid species recovery can the high seas. In addition, it is unlawful or transporting of the species, including be found at: http://www.fws.gov/grants. to import; export; deliver, receive, carry, import or export across State lines and Please let us know if you are transport, or ship in interstate or foreign international boundaries, except for interested in participating in recovery commerce in the course of commercial properly documented antique efforts for the Black Warrior waterdog. activity; or sell or offer for sale in specimens of this taxa, as defined by Additionally, we invite you to submit interstate or foreign commerce any section 10(h)(1) of the Act; any new information on this species listed species. It is also illegal to (3) Unauthorized destruction or whenever it becomes available and any possess, sell, deliver, carry, transport, or alteration of Black Warrior waterdog information you may have for recovery ship any such wildlife that has been habitat that results in destruction or loss planning purposes (see FOR FURTHER taken illegally. Certain exceptions apply of leaf packs and rocky substrate (rock INFORMATION CONTACT). to employees of the Service, the crevices in the creek or stream); Section 7(a) of the Act requires National Marine Fisheries Service, other (4) Unauthorized discharge of Federal agencies to evaluate their Federal land management agencies, and chemicals or fill material into any actions with respect to any species that State conservation agencies. waters in which the Black Warrior is proposed or listed as an endangered We may issue permits to carry out waterdog is known to occur; and or threatened species and with respect otherwise prohibited activities (5) Actions, intentional or otherwise, to its critical habitat, if any is involving endangered wildlife under that would result in the destruction of designated. Regulations implementing certain circumstances. Regulations eggs or cause mortality or injury to this interagency cooperation provision governing permits are codified at 50 hatchling, juvenile, or adult Black of the Act are codified at 50 CFR part CFR 17.32. With regard to endangered Warrior waterdogs. 402. Section 7(a)(2) of the Act requires wildlife, a permit may be issued for Questions regarding whether specific Federal agencies to ensure that activities scientific purposes, to enhance the activities would constitute a violation of they authorize, fund, or carry out are not propagation or survival of the species, section 9 of the Act should be directed likely to jeopardize the continued and for incidental take in connection to the Alabama Ecological Services existence of any endangered or with otherwise lawful activities. There Field Office (see FOR FURTHER threatened species or destroy or are also certain statutory exemptions INFORMATION CONTACT). adversely modify its critical habitat. If a from the prohibitions, which are found Critical Habitat Federal action may affect a listed in sections 9 and 10 of the Act. species or its critical habitat, the It is our policy, as published in the Background responsible Federal agency must enter Federal Register on July 1, 1994 (59 FR Critical habitat is defined in section 3 into consultation with the Service. 34272), to identify to the maximum of the Act as: Federal agency actions within Black extent practicable at the time a species (1) The specific areas within the Warrior waterdog habitat that may is listed, those activities that would or geographical area occupied by the require consultation as described in the would not constitute a violation of species, at the time it is listed in preceding paragraph include section 9 of the Act. The intent of this accordance with the Act, on which are management and any other landscape- policy is to increase public awareness of found those physical or biological altering activities on Federal lands the effect of a listing on proposed and features administered by the Service, U.S. Forest ongoing activities within the range of (a) Essential to the conservation of the Service, and Bureau of Land species. Based on the best available species, and

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 268 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

(b) Which may require special avoid destruction or adverse available, to use primary and original management considerations or modification of critical habitat. sources of information as the basis for protection; and Under the first prong of the Act’s recommendations to designate critical (2) Specific areas outside the definition of critical habitat, areas habitat. geographical area occupied by the within the geographical area occupied When we are determining which areas species at the time it is listed, upon a by the species at the time it was listed should be designated as critical habitat, determination that such areas are are included in a critical habitat our primary source of information is essential for the conservation of the designation if they contain physical or generally the information developed species. biological features (1) which are during the listing process for the Our regulations at 50 CFR 424.02 essential to the conservation of the species. However, additional define ‘‘geographical area occupied by species and (2) which may require information sources may include the the species’’ as an area that may special management considerations or recovery plan for the species, articles in generally be delineated around species’ protection. For these areas, critical peer-reviewed journals, conservation occurrences, as determined by the habitat designations identify, to the plans developed by States and counties, Secretary (i.e., range). Such areas may extent known using the best scientific scientific status surveys and studies, include those areas used throughout all data available, those physical or biological assessments, other or part of the species’ life cycle, even if biological features that are essential to unpublished materials, or experts’ not used on a regular basis (e.g., the conservation of the species (such as opinions or personal knowledge. migratory corridors, seasonal habitats, space, food, cover, and protected Habitat is dynamic, and species may and habitats used periodically, but not habitat). In identifying those physical move from one area to another over solely by vagrant individuals). and biological features within an area, time. We recognize that critical habitat Conservation, as defined under we focus on the specific features that designated at a particular point in time section 3 of the Act, means to use and support the life-history needs of the may not include all of the habitat areas the use of all methods and procedures species, including, but not limited to, that we may later determine are that are necessary to bring an water characteristics, soil type, necessary for the recovery of the endangered or threatened species to the geological features, prey, vegetation, species. For these reasons, a critical point at which the measures provided symbiotic species, or other features. A habitat designation does not signal that pursuant to the Act are no longer feature may be a single habitat habitat outside the designated area is necessary. Such methods and characteristic, or a more complex unimportant or may not be needed for procedures include, but are not limited combination of habitat characteristics. recovery of the species. Areas that are to, all activities associated with Features may include habitat important to the conservation of the scientific resources management such as characteristics that support ephemeral species, both inside and outside the research, census, law enforcement, or dynamic habitat conditions. Features critical habitat designation, will habitat acquisition and maintenance, may also be expressed in terms relating continue to be subject to: (1) propagation, live trapping, and to principles of conservation biology, Conservation actions implemented transplantation, and, in the such as patch size, distribution under section 7(a)(1) of the Act, (2) extraordinary case where population distances, and connectivity. regulatory protections afforded by the pressures within a given ecosystem Under the second prong of the Act’s requirement in section 7(a)(2) of the Act cannot be otherwise relieved, may definition of critical habitat, we may for Federal agencies to ensure their include regulated taking. designate critical habitat in areas actions are not likely to jeopardize the Critical habitat receives protection outside the geographical area occupied continued existence of any endangered under section 7 of the Act through the by the species at the time it is listed, or threatened species, and (3) section 9 requirement that Federal agencies upon a determination that such areas of the Act’s prohibitions on taking any ensure, in consultation with the Service, are essential for the conservation of the individual of the species, including that any action they authorize, fund, or species. For example, an area currently taking caused by actions that affect carry out is not likely to result in the occupied by the species but that was not habitat. Federally funded or permitted destruction or adverse modification of occupied at the time of listing may be projects affecting listed species outside critical habitat. The designation of essential to the conservation of the their designated critical habitat areas critical habitat does not affect land species and may be included in the may still result in jeopardy findings in ownership or establish a refuge, critical habitat designation some cases. These protections and wilderness, reserve, preserve, or other Section 4 of the Act requires that we conservation tools will continue to conservation area. Such designation designate critical habitat on the basis of contribute to recovery of this species. does not allow the government or public the best scientific data available. Similarly, critical habitat designations to access private lands. Such Further, our Policy on Information made on the basis of the best available designation does not require Standards Under the Act (published in information at the time of designation implementation of restoration, recovery, the Federal Register on July 1, 1994 (59 will not control the direction and or enhancement measures by non- FR 34271)), the Information Quality Act substance of future recovery plans, Federal landowners. Where a landowner (section 515 of the Treasury and General habitat conservation plans (HCPs), or requests Federal agency funding or Government Appropriations Act for other species conservation planning authorization for an action that may Fiscal Year 2001 (Pub. L. 106–554; H.R. efforts if new information available at affect a listed species or critical habitat, 5658)), and our associated Information the time of these planning efforts calls the consultation requirements of section Quality Guidelines, provide criteria, for a different outcome. 7(a)(2) of the Act would apply, but even establish procedures, and provide in the event of a destruction or adverse guidance to ensure that our decisions Physical or Biological Features modification finding, the obligation of are based on the best scientific and In accordance with section 3(5)(A)(i) the Federal action agency and the commercial data available. They require of the Act and regulations at 50 CFR landowner is not to restore or recover our staff, to the extent consistent with 424.12(b), in determining which areas the species, but to implement the Act and with the use of the best within the geographical area occupied reasonable and prudent alternatives to scientific and commercial data by the species at the time of listing to

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 269

designate as critical habitat, we consider characteristics: (1) Drainage area with large bedrock outcrops, large the physical or biological features that between 50 and 500 square miles, (2) boulders with sandy-gravel bottoms, are essential to the conservation of the depth averaging two feet, with vegetated and stream banks with rock species and which may require special shallows alternating with pools at least outcroppings. management considerations or three to four feet deep, (3) pools with The Black Warrior waterdog needs protection. For example, physical detectable current, (4) abundance of geomorphically stable streams with features might include gravel of a submerged rocks with crevices, substrate consisting of clay or bedrock particular size required for spawning, overlapping flat rocks, or accumulations with little sand, and containing alkali soil for seed germination, of boulders, (5) abundant molluscan abundant rock crevices, rock slabs, and protective cover for migration, or fauna, (6) low silt load and minimal silt leaf packs. The connectivity of these susceptibility to flooding or fire that deposits, (7) relatively low nutrient stream habitats is also essential in maintains necessary early-successional content and bacterial count, (8) accommodating growth and other habitat characteristics. Biological moderate temperatures (maximum normal behaviors of the Black Warrior features might include prey species, 85 °F), and (9) minimal pollution by waterdog and in promoting gene flow forage grasses, specific kinds or ages of synthetic chemicals and toxic inorganic within the species. trees for roosting or nesting, symbiotic materials.’’ Since the Black Warrior Food, Water, Air, Light, Minerals, or fungi, or a particular level of nonnative waterdog and the flattened musk turtle Other Nutritional or Physiological species consistent with conservation occupy the same range and similar Requirements needs of the listed species. The features habitats, this description of optimal may also be combinations of habitat habitat is applicable to both species Food—Feeding habits of the Black characteristics and may encompass the with the difference that the Black Warrior waterdog are likely similar to relationship between characteristics or Warrior waterdog finds refuge under the feeding habits of Neuse River the necessary amount of a characteristic boulders or rocks and in crevices, lays waterdog, since both species are found needed to support the life history of the its eggs on the underside of boulders, in similar microhabitats. Both adult and species. In considering whether features and uses deposited leaf packs (Bailey juvenile Neuse River waterdogs appear are essential to the conservation of the and Guyer 2004, pp. 36–37; Durflinger- to be opportunistic feeders. Braswell species, the Service may consider an Moreno et al. 2006, pp. 69, 76, 78) on and Ashton (1985 pp. 22–27) found that appropriate quality, quantity, and the streambed, likely for foraging on larval waterdog diets consist primarily spatial and temporal arrangement of aquatic insect larvae and for sheltering. of a variety of aquatic arthropods (orders habitat characteristics in the context of Necturus species in general have Ostracoda, Copepoda, Isopoda, and the life-history needs, condition, and similar feeding habits, reproductive Amphipoda) with some insect larvae status of the species. These strategies, and physical characteristics. (orders Odonata, Ephemeroptera, characteristics include but are not For example, although geographically Plecoptera, Trichoptera, Diptera, and limited to space for individual and separated (allopatric), the Black Warrior Coleoptera). Black Warrior waterdogs population growth and for normal waterdog and the Neuse River waterdog have been found in close association behavior; food, water, air, light, both utilize high-gradient streams that with mayfly (Ephemeroptera) and minerals, or other nutritional or are above the Fall Line and contain hard caddisfly (Tricoptera) larvae (Durflinger- physiological requirements; cover or substrate, leafpacks, and Moreno et al. 2006). Adult Neuse River shelter; sites for breeding, reproduction, macroinvertebrates. Because the two waterdog diet was more expansive than or rearing (or development) of offspring; species likely evolved in similar the juvenile diet and included aquatic and habitats that are protected from habitats, an influential factor in arthropods, other aquatic and terrestrial disturbance. determining life-history traits, we used invertebrates (earthworms, centipedes, We derive the specific physical or the Neuse River waterdog as a surrogate beetles, grubs), and aquatic and biological features essential for Black to determine some of the biological and terrestrial vertebrates (fish and Warrior waterdog from studies of this ecological attributes that have not yet salamanders) (Braswell and Ashton species’ habitat, ecology, and life history been determined for the Black Warrior 1985, pp. 13, 24–25). as described below. Additional waterdog. When such data were lacking Since aquatic invertebrates are an information can be found in the for the Neuse River waterdog and Black important component of the Black proposed listing (81 FR 69500) and Warrior waterdog, we relied on data Warrior waterdog’s diet, it is essential to critical habitat rule (81 FR 69475), both from other Necturus species. also take into consideration specific published in the Federal Register on Furthermore, as discussed above, habitat requirements of these prey. October 6, 2016. We have determined because the flattened musk turtle has an Merrit and Cummins (1996) described that the following physical or biological identical range to the Black Warrior caddisfly and mayfly habitat as a wide features are essential for Black Warrior waterdog, we relied on the turtle’s variety of standing and flowing water waterdog. known habitat affinities to identify some habitats, with the greatest diversity of the habitat features important to the being found in rocky-bottom streams Space for Individual and Population Black Warrior waterdog. with an abundance of oxygen. As a Growth and for Normal Behavior The tributaries of the Neuse River result, they further identify the food The Black Warrior waterdog is found have gradients similar to the tributaries sources for these aquatic insects as a in the Black Warrior Basin above the of the Black Warrior River Basin. variety of detritus (leaf packs), algae, Fall Line, characterized by rocky habitat According to Ashton (1985, pp. 103– diatoms, and macrophytes. with little sand. According to Mount 104), adult and juvenile Neuse River Water—As little is known about the (1981, p. 23), optimal habitat for the waterdogs use habitats characterized by specific water quality needs of the Black flattened musk turtle, a species listed as moderate stream flow and relatively Warrior waterdog, we evaluated and threatened under the Act (52 FR 22418; high dissolved oxygen concentrations, based the water quality parameters on June 11, 1987) that has the same range which is consistent with other Necturus various factors, specifically Mount’s as the waterdog, consists of a ‘‘segment species found in southern States. (1983) description of optimal habitat, of a free flowing large creek or small Studies of the Neuse River waterdog Neuse River waterdog literature, prey river having the following indicate that adult waterdogs use areas species requirements (insect larvae),

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 270 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

Alabama Department of Environmental the upper Black Warrior River Basin is toxic chemicals present. He also Management (ADEM) water quality essential to the survival of the Black reported that juveniles and adults are standards, and water quality Warrior waterdog. Optimal water impacted by the exposure. Further, requirements for currently listed aquatic quality lacks harmful levels of excessive sedimentation of the crevices species found in the Basin, as follows: pollutants, including inorganic and leaf packs removes foraging, rush darter (Etheostoma phytophilum), contaminants such as copper, arsenic, feeding, breeding, and retreat areas for Alabama moccasinshell (Medionidus mercury, and cadmium; organic the Black Warrior waterdog (Laschet acutissimus), dark pigtoe (Pleurobema contaminants such as human and 2014, pers. obs.). furvum), orangenacre mucket (Lampsilis animal waste products; endocrine- perovalis), ovate clubshell (Pleurobema disrupting chemicals; pesticides; Habitats Protected From Disturbance or perovatum), triangular kidneyshell nitrogen, potassium, and phosphorus Representative of the Historical (Ptychobranchus greenii), upland fertilizers; and petroleum distillates Geographical and Ecological combshell (Epioblasma metastriata), (ADEM 2014, pp. 13–15). A decrease in Distributions of the Species and southern acornshell (Epioblasma water quality and instream flow would Currently, there are no areas that are othcaloogensis). cause a decline in the major food undisturbed or that are representative of Appropriate water quality parameters species for the Black Warrior waterdog. the historical geographical and to support the Black Warrior waterdog’s Natural variations of instream flows ecological distribution of the species primary prey base and other listed maintain the stream bottom substrates, that the Black Warrior waterdog species in the Basin include: providing oxygen and other attributes to typically inhabits. The Bankhead • Water that lacks harmful levels of various invertebrate life stages. National Forest is an area that can reveal pollutants, including inorganic Sedimentation contributes to turbidity a glimpse of representative historical contaminants such as copper, arsenic, of the water and has been shown to geographical and ecological features of mercury, and cadmium; organic reduce photosynthesis in aquatic plants, the species’ habitat and is currently contaminants such as human and suffocate aquatic insects, smother considered the stronghold of the animal waste products; endocrine- aquatic eggs, clog gills, and fill in species. Streams in this area typically disrupting chemicals; pesticides; essential interstitial spaces used by are geomorphically stable with substrate nitrogen, potassium, and phosphorus aquatic organisms for spawning and consisting of clay or bedrock with little fertilizers; and petroleum distillates foraging. Sedimentation has been shown sand, and containing abundant rock (ADEM 2014, pp. 12–15); to wear away and suffocate periphyton • crevices and rock slabs. These streams Water temperature not exceeding (organisms that live attached to objects also contain cool, clean, flowing water 85 °F; underwater) and disrupt aquatic insect • having a dissolved oxygen level of 5.5 Dissolved oxygen 5.5 milligrams communities (Waters 1995, pp. 53–86; mg/L or higher; moderate water per liter (mg/L) or greater; Knight and Welch 2004, pp. 132–135). velocity; aquatic macroinvertabrate prey • Turbidity of an average monthly items; leaf packs; and adequate water reading of 15 nephelometric turbidity Cover or Shelter quality (ADEM 2010, pp. 1–3). units (NTUs; units to measure sediment Suitable substrates for the Black discharge) above background readings; Warrior waterdog are dominated by clay In summary, based on the information • 115 mg/L of total suspended solids or bedrock with little sand, and also described above, we have determined (measured as mg/L of sediment in contain abundant rock crevices and rock that the following physical or biological water) or less; and slabs for retreats (shelter) and areas for features are essential to the conservation • A specific conductance (ability of egg laying. Based on capture data, the of the Black Warrior waterdog. water to conduct an electrical current, Black Warrior waterdog utilizes leaf (1) Geomorphically stable, medium to based on dissolved solids in the water) pack for shelter from predators and as large streams (typically 4 m (13 ft) wide of no greater than 225 microsiemens foraging areas for prey species. or greater) with: (mS) per centimeter at 80 °F (October 10, (a) Substrate consisting of clay or Sites for Breeding, Reproduction, or 2012; 77 FR 61664). bedrock with little sand, and containing Rearing (or Development) of Offspring The Black Warrior waterdog has abundant rock crevices, rock slabs, and similar hydrologic requirements as Little is known about the specific leaf packs; those of the Neuse River waterdog, requirements of Black Warrior (b) Moderate water velocity; and which are usually found in streams waterdog’s reproduction. Based on (c) Prey base of aquatic greater than 15 meters (m) (50 feet (ft)) Neuse River waterdog research, macroinvertebrates. wide and deeper than 100 centimeters breeding sites are large bedrock (2) Water that lacks harmful levels of (cm) (3 ft) and are not found in streams outcrops or large boulders with sand pollutants, including inorganic where water flow ceases under normal and gravel beneath them (Ashton 1985, contaminants such as copper, arsenic, summer dry weather conditions p. 95). Data collected from the mercury, and cadmium; organic (Braswell and Aston 1985, pp. 26–30). Cincinnati Zoo (unpublished) indicate contaminants such as human and However, based on eDNA detections, that the Black Warrior waterdog has animal waste products; endocrine- the Black Warrior waterdog could be similar tendencies of depositing eggs disrupting chemicals; pesticides; using streams as narrow as 4 m (13 ft) under rock slabs or in rock crevices, and nitrogen, potassium, and phosphorus wide (Godwin 2014, pers. comm.). In the female guarding the eggs. Juvenile fertilizers; and petroleum distillates. regard to instream flow, the Black Black Warrior waterdogs are often found Warrior waterdog benefits from in leaf packs in the stream. (3) Appropriate water quality moderate stream velocity and Sedimentation can be destructive to parameters to support Black Warrior continuous daily discharge that allows Black Warrior waterdogs and their waterdog and primary prey base, for longitudinal connectivity (the habitat when it contains toxicants and is including: pathway along the entire length of a excessive. Bailey (2000, p. 2) reported (a) Water temperature not exceeding stream). that Black Warrior waterdogs are 85 °F; The quality of the chemical and virtually in constant contact with the (b) Dissolved oxygen 5.5 mg/L or physical environment of the streams in substrate and; therefore, also with any greater;

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 271

(c) Turbidity of an average monthly features essential for the conservation of and Yellow Creek—meet the criteria for reading of 15 NTUs above background the species by eliminating, or reducing designation as critical habitat. As readings; to negligible levels, the threats affecting discussed below, some of these units (d) 115 mg/L of total suspended solids the physical and biological features of contain all of the identified elements of or less; and each unit. The major threats to the Black physical or biological features and (e) A specific conductance of no Warrior waterdog habitat are support multiple life-history processes. greater than 225 mS per centimeter at sedimentation, water quality Some units contain only some elements 80 °F. degradation (increased nutrients, of the physical or biological features Special Management Considerations or turbidity, and toxins), and necessary to support the Black Warrior Protection fragmentation from impoundments. waterdog’s particular use of that habitat. When designating critical habitat, we Criteria Used To Identify Critical Mapping Black Warrior Waterdog assess whether the specific areas within Habitat Critical Habitat the geographical area occupied by the As required by section 4(b)(2) of the In identifying critical habitat units for species at the time of listing contain Act, we use the best scientific data the Black Warrior waterdog, we features that are essential to the available to designate critical habitat. In proceeded through a multi-step process. conservation of the species and which accordance with the Act and our We obtained and reviewed historical may require special management implementing regulations at 50 CFR records for the Black Warrior waterdog’s considerations or protection. 424.12(b) we review available distribution from Bankhead National The features essential to the information pertaining to the habitat Forest and Alabama Natural Heritage conservation of the Black Warrior requirements of the species and identify Program, as well as both published and waterdog may require special specific areas within the geographical unpublished documentation from our management considerations or area occupied by the species at the time files. Once the historical range was protections to reduce the following of listing and any specific areas outside determined, we looked at whether the threats: (1) Urbanization activities and the geographical area occupied by the physical and biological features were inadequate stormwater management species to be considered for designation present at these historical sites. Then, (such as stream channel modification as critical habitat. We are designating we reviewed surveys conducted over for flood control or gravel extraction) critical habitat in areas within the the last 8 years, including surveys that could cause an increase in bank geographical area occupied by the Black currently being undertaken. We erosion; (2) significant changes in the Warrior waterdog at the time of listing conducted species present-or-absent existing flow regime within the streams in 2017. We are not designating any surveys of known and historical sites due to water diversion or withdrawal; areas outside the geographic area and sampled and observed the habitat. (3) significant alteration of water occupied by the species because we did Since the Black Warrior waterdog is quality; (4) significant alteration in not find any areas that were essential for difficult to detect and capture, we quantity of groundwater, prevention of the conservation of the species (see contracted with Alabama Natural water percolating into the aquifer explanation under response to comment Heritage Program and Auburn recharge zone, and alteration of spring 11, above). University to conduct sampling surveys discharge sites; (5) significant changes For the purpose of designating critical including the use of eDNA. With the in stream bed material composition and habitat for the Black Warrior waterdog, survey results, we confirmed the Black quality due to changes in stream flow we defined the geographical area Warrior waterdog’s distribution in the characteristics, construction projects, currently occupied by the species. We Black Warrior River Basin. We and maintenance activities; (6) off-road used information from surveys and determined occupied areas with data vehicle use; (7) sewer, gas, and water reports prepared by the Alabama collected from surveys conducted over easements; (8) bridge construction; (9) Department of Conservation and Natural the last 8 years to present. We culvert and pipe installation; and (10) Resources, Alabama Geological Survey, considered areas that do not have recent other watershed and floodplain Alabama Natural Heritage Program, capture or sighting data to be disturbances that release sediments or Auburn University, Alabama Power unoccupied by the species. nutrients into the water. Company, U.S. Forest Service, Natural Our approach to delineating critical Management activities that could Resources Conservation Service, and habitat units was applied in the ameliorate these threats include, but are Service to identify the specific locations following manner: not limited to: Use of certified BMPs occupied by the Black Warrior (1) We overlaid Black Warrior designed to reduce sedimentation, waterdog. Currently, occupied habitat waterdog locations into a GIS database. erosion, and bank side destruction; for the species is isolated and limited to This provided us with the ability to select harvest of trees along banks, and four units. Within these four units, the examine slope, elevation, geologic type, leaving 50 percent canopy cover (of species is located within seven hydrologic factors, vegetation deciduous trees) along banks; tributaries in the Black Warrior River community, and topographic features. moderation of surface and ground water Basin. Three of the tributaries are on These data points verified the withdrawals to maintain natural flow Bankhead National Forest (Winston previously recorded elevation ranges for regimes; increased use of stormwater County) and include Sipsey Fork, Black Warrior waterdog. management and reduction of Brushy Creek, and Rush Creek. The (2) In addition to the GIS layers listed stormwater flows into the systems; other four tributaries are Locust Fork; above, we then excluded impoundments preservation of headwater springs and Gurley Creek, which feeds into Locust and dams as barriers for the species, as spring runs; regulation of off-road Fork (Blount and Jefferson Counties); described in Physical or Biological vehicle use; and reduction of other Blackwater/Browns Creek in Winston Features, above. watershed and floodplain disturbances County; and Yellow Creek in Tuscaloosa (3) We then drew critical habitat that release sediments, pollutants, or County (Godwin 2014, entire). We have boundaries that captured the locations nutrients into the water. determined that these four units (which as discussed above. The final critical These management activities could include all seven tributaries)—Sipsey habitat designation was then mapped protect the physical or biological Fork, Locust Fork, Blackwater Creek, using Projected Coordinate System,

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 272 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

NAD 1983 UTM Zone 16N with a We are designating as critical habitat both on which each map is based Projection of Transverse Mercator. streams that we have determined are available to the public on http:// When determining critical habitat occupied at the time of listing and www.regulations.gov at Docket No. boundaries, we made every effort to contain physical or biological features to FWS–R4–ES–2016–0031, on the avoid including developed areas such as support life-history processes essential Service’s website at http://www.fws.gov/ to the conservation of the species. lands covered by buildings, pavement, daphne/, and at the field office Four units were designated based on FOR and other structures because such lands responsible for the designation (see one or more of the elements of physical FURTHER INFORMATION CONTACT, above). lack physical or biological features or biological features being present to necessary for the Black Warrior support the Black Warrior waterdog’s Final Critical Habitat Designation waterdog. The scale of the maps we life processes. Some units contained all prepared under the parameters for We are designating approximately 673 of the identified elements of physical or river kilometers (420 river miles) in five publication within the Code of Federal biological features and supported Regulations may not reflect the units as critical habitat for the Black multiple life processes. Some units Warrior waterdog. The critical habitat exclusion of such developed lands. Any contained only some elements of the such lands inadvertently left inside areas we describe below constitute our physical or biological features necessary current best assessment of areas that critical habitat boundaries shown on the to support the Black Warrior waterdog’s maps of this rule have been excluded by meet the definition of critical habitat for particular use of that habitat. the Black Warrior waterdog. text in the rule and are not designated The critical habitat designation is as critical habitat. Therefore, a Federal defined by the maps, as modified by any All of the areas designated as critical action involving these lands would not accompanying regulatory text, presented habitat for the Black Warrior waterdog trigger section 7 consultation with at the end of this document in the rule include stream and river channels respect to critical habitat and the portion. We include more detailed within the normal high water line. requirement of no adverse modification information on the boundaries of the Table 1 shows the occupancy status of unless the specific action would affect critical habitat designation in the each unit and units that overlap with the physical or biological features in the preamble of this document. We will existing critical habitat units for other adjacent critical habitat. make the coordinates or plot points or federally listed species.

TABLE 1—BLACK WARRIOR WATERDOG CRITICAL HABITAT UNITS AND EXISTING OVERLAPPING CRITICAL HABITAT DESIGNATION FOR FEDERALLY LISTED SPECIES

Existing Private Federal critical Total Unit Location ownership ownership habitat length rkm/rmi rkm/rmi rkm/rmi rkm/rmi

1 ...... Yellow Creek ...... 30/19 ...... 30/19 2 ...... Locust Fork ...... 391/243 ...... * 101/63 391/243 3 ...... Blackwater Creek ...... 128/80 ...... 128/80 4 ...... Sipsey Fork ...... 11/7 113/71 ** 103/64 124/78

Totals ...... 560/349 113/71 204/127 673/420 * Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), ovate clubshell (Pleurobema perovatum), upland combshell (Epioblasma metastriata), triangular kidneyshell (Ptychobranchus greenii). ** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma othcaloogensis), triangular kidneyshell.

We present brief descriptions of all rock slabs, leaf litter, and instream flow result of construction projects and the units, and reasons why they meet with moderate velocity and continuous maintenance activities; off-road vehicle the definition of critical habitat for the daily discharge that allows for a use; sewer, gas, and water easements; Black Warrior waterdog, below. All longitudinal connectivity regime bridge and road construction and units are within private ownership, inclusive of both surface runoff and maintenance; culvert and pipe except Unit 4, which also includes ground water sources and exclusive of installation; and other watershed and Federal ownership. flushing flows caused by stormwater floodplain disturbances that release runoff. sediments or nutrients into the water. Unit 1: Yellow Creek, Tuscaloosa Threats to the physical and biological County, Alabama features in Unit 1 that may require Unit 2: Locust Fork, Blount, Etowah, special management considerations or Jefferson, and Marshall Counties, Unit 1 includes 30 rkm (19 rmi) of protection include: Alabama stream and river habitat. The unit • Agriculture, silviculture, and consists of the headwaters of Yellow urbanization activities that could result Unit 2 includes 391 rkm (243 rmi) of Creek to Holt Lake. This area is within in increased bank erosion; stream and river habitat. The unit the geographical area occupied at the • Significant changes in the existing consists of the headwaters of Locust time of listing (i.e., currently occupied). flow regime due to inadequate Fork to Bankhead Lake, from the Godwin (2016, pers. comm.) reported a stormwater management, water headwaters of Slab Creek to the capture of a Black Warrior waterdog in diversion, or water withdrawal; confluence of Locust Fork, from the this area. This area contains the • Significant alteration of water headwaters of Blackburn Fork to the following physical or biological features quality; and confluence of Locust Fork, and from the that are essential for the Black Warrior • Significant changes in stream bed headwaters of Gurley Creek to the waterdog: Abundant rock crevices and material composition and quality as a confluence of Locust Fork. This area is

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 273

within the geographical area occupied at sources, exclusive of flushing flows • Significant alteration of water the time of listing (i.e., currently caused by stormwater runoff, that are quality; and occupied). Based on a literature review essential for the Black Warrior • Significant changes in stream bed by Bailey (2000, p. 1), Black Warrior waterdog. material composition and quality as a waterdog specimens have been collected Threats to the physical and biological result of construction projects and from the Locust Fork area. Black features in Unit 3 that may require maintenance activities; off-road vehicle Warrior waterdogs were also collected special management considerations or use; sewer, gas, and water easements; in the upper Locust Fork in 2012 along protection include: bridge and road construction and with positive eDNA samples in this • Agriculture, silviculture, and maintenance; culvert and pipe area. This area contains the following urbanization activities that could result installation; and other watershed and physical or biological features: in increased bank erosion; floodplain disturbances that release Abundant rock crevices and rock slabs, • Significant changes in the existing sediments or nutrients into the water. leaf litter, and instream flow with flow regime due to inadequate Effects of Critical Habitat Designation moderate velocity and continuous daily stormwater management, water discharge that allows for a longitudinal diversion, or water withdrawal; Section 7 Consultation connectivity regime consisting of both • Significant alteration of water Section 7(a)(2) of the Act requires surface runoff and ground water quality; and Federal agencies, including the Service, sources, exclusive of flushing flows • Significant changes in stream bed to ensure that any action they fund, caused by stormwater runoff, that are material composition and quality as a authorize, or carry out is not likely to essential for the Black Warrior result of construction projects and jeopardize the continued existence of waterdog. maintenance activities; off-road vehicle Threats to the physical and biological any endangered species or threatened use; sewer, gas, and water easements; species or result in the destruction or features in Unit 2 that may require bridge and road construction and special management considerations or adverse modification of designated maintenance; culvert and pipe critical habitat of such species. In protection include: installation; and other watershed and • Agriculture, silviculture, and addition, section 7(a)(4) of the Act floodplain disturbances that release urbanization activities that could result requires Federal agencies to confer with sediments or nutrients into the water. in increased bank erosion; the Service on any agency action that is • Significant changes in the existing Unit 4: Sipsey Fork, Lawrence and likely to jeopardize the continued flow regime due to inadequate Winston Counties, Alabama existence of any species proposed to be stormwater management, water listed under the Act or result in the Unit 4 includes 124 rkm (78 rmi) of diversion, or water withdrawal; destruction or adverse modification of • Significant alteration of water stream and river habitat. The unit proposed critical habitat. quality; and consists of the headwaters of Sipsey We published a final regulation with • Significant changes in stream bed Fork to Lewis Smith Lake, from the a new definition of destruction or material composition and quality as a headwaters of Brushy Creek to Lewis adverse modification on February 11, result of construction projects and Smith Lake, from the headwaters of 2016 (81 FR 7214). Destruction or maintenance activities; off-road vehicle Rush Creek to the confluence of Brushy adverse modification means a direct or use; sewer, gas, and water easements; Creek, and from the headwaters of indirect alteration that appreciably bridge and road construction and Capsey Creek to the confluence of diminishes the value of critical habitat maintenance; culvert and pipe Brushy Creek. This area falls within the for the conservation of a listed species. installation; and other watershed and boundary of Bankhead National Forest, Such alterations may include, but are floodplain disturbances that release although some areas are private not limited to, those that alter the sediments or nutrients into the water. inholdings. physical or biological features essential This area is within the geographical to the conservation of a species or that Unit 3: Blackwater Creek, Walker and area occupied at the time of listing, preclude or significantly delay Winston Counties, Alabama based on recent captures (Godwin 2016, development of such features. Unit 3 includes 128 rkm (80 rmi) of entire). This area contains the following If a Federal action may affect a listed stream and river habitat. The unit physical or biological features: abundant species or its critical habitat, the consists of the headwaters of Blackwater rock crevices and rock slabs, leaf litter, responsible Federal agency (action Creek to the confluence of Mulberry and instream flow with moderate agency) must enter into consultation Fork, and from the headwaters of Brown velocity and continuous daily discharge with us. Examples of actions that are Creek to the confluence of Blackwater that allows for longitudinal connectivity subject to the section 7 consultation Creek. This area is within the consisting of both surface runoff and process are actions on State, tribal, geographical area occupied at the time ground water sources, exclusive of local, or private lands that require a of listing based on a literature review by flushing flows caused by stormwater Federal permit (such as a permit from Bailey (2000, p. 1). Black Warrior runoff, that are essential for the Black the U.S. Army Corps of Engineers under waterdogs were collected in Brown Warrior waterdog. section 404 of the Clean Water Act (33 Creek in 2006. Black Warrior waterdogs Threats to the physical and biological U.S.C. 1251 et seq.) or a permit from the were likely still present based on eDNA features in Unit 4 that may require Service under section 10 of the Act) or results (Godwin 2014, pers. comm.). special management considerations or that involve some other Federal action This area contains the following protection include: (such as funding from the Federal physical or biological features: • Agriculture, silviculture, and Highway Administration, Federal Abundant rock crevices and rock slabs, urbanization activities that could result Aviation Administration, or the Federal leaf litter, and instream flow with in increased bank erosion; Emergency Management Agency). moderate velocity and continuous daily • Significant changes in the existing Federal actions not affecting listed discharge that allows for longitudinal flow regime due to inadequate species or critical habitat, and actions connectivity regime consisting of both stormwater management, water on State, tribal, local, or private lands surface runoff and ground water diversion, or water withdrawal; that are not federally funded or

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 274 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

authorized, do not require section 7 Application of the ‘‘Adverse adversely affect its ability to complete consultation. Modification’’ Standard its lifecycle. As a result of section 7 consultation, The key factor related to the adverse (3) Actions that would significantly we document compliance with the modification determination is whether, alter channel morphology or geometry. requirements of section 7(a)(2) through with implementation of the proposed Such activities could include, but are our issuance of: Federal action, the affected critical not limited to, channelization, (1) A concurrence letter for Federal habitat would continue to serve its impoundment, road and bridge actions that may affect, but are not intended conservation role for the construction, mining, dredging, and likely to adversely affect, listed species species. Activities that may destroy or destruction of riparian vegetation. These or critical habitat; or adversely modify critical habitat are activities may lead to changes in water (2) A biological opinion for Federal those that result in a direct or indirect flows and levels that would degrade or actions that may affect, and are likely to alteration that appreciably diminishes eliminate the Black Warrior waterdog adversely affect, listed species or critical the value of critical habitat for the and/or its habitat. These actions can habitat. conservation of the Black Warrior also lead to increased sedimentation When we issue a biological opinion waterdog. Such alterations may include, and degradation in water quality to concluding that a project is likely to but are not limited to, those that alter levels that are beyond the tolerances of jeopardize the continued existence of a the physical or biological features the Black Warrior waterdog or its prey listed species and/or destroy or essential to the conservation of these items. adversely modify critical habitat, we species or that preclude or significantly provide reasonable and prudent delay development of such features. As Exemptions alternatives to the project, if any are discussed above, the role of critical Application of Section 4(a)(3) of the Act identifiable, that would avoid the habitat is to support physical or likelihood of jeopardy and/or biological features essential to the Section 4(a)(3)(B)(i) of the Act (16 destruction or adverse modification of conservation of a listed species and U.S.C. 1533(a)(3)(B)(i)) provides that: critical habitat. We define ‘‘reasonable provide for the conservation of the ‘‘The Secretary shall not designate as and prudent alternatives’’ (at 50 CFR species. critical habitat any lands or other 402.02) as alternative actions identified Section 4(b)(8) of the Act requires us geographical areas owned or controlled during consultation that: to briefly evaluate and describe, in any by the Department of Defense, or (1) Can be implemented in a manner proposed or final regulation that designated for its use, that are subject to consistent with the intended purpose of designates critical habitat, activities an integrated natural resources the action, involving a Federal action that may management plan [INRMP] prepared (2) Can be implemented consistent destroy or adversely modify such under section 101 of the Sikes Act (16 with the scope of the Federal agency’s habitat, or that may be affected by such U.S.C. 670a), if the Secretary determines legal authority and jurisdiction, designation. in writing that such plan provides a (3) Are economically and Activities that may affect critical benefit to the species for which critical technologically feasible, and habitat, when carried out, funded, or habitat is proposed for designation.’’ (4) Would, in the Director’s opinion, authorized by a Federal agency, should There are no Department of Defense avoid the likelihood of jeopardizing the result in consultation for the Black lands with a completed INRMP within continued existence of the listed species Warrior waterdog. These activities the final critical habitat designation. and/or avoid the likelihood of include, but are not limited to: destroying or adversely modifying (1) Actions that would significantly Consideration of Impacts Under Section critical habitat. alter water chemistry or temperature. 4(b)(2) of the Act Reasonable and prudent alternatives Such activities could include, but are can vary from slight project not limited to, release of chemicals, Section 4(b)(2) of the Act states that modifications to extensive redesign or biological pollutants, or heated effluents the Secretary shall designate critical relocation of the project. Costs into the surface water or connected habitat on the basis of the best available associated with implementing a groundwater at a point source or by scientific data after taking into reasonable and prudent alternative are dispersed release (non-point source). consideration the economic impact, similarly variable. These activities could alter water national security impact, and any other Regulations at 50 CFR 402.16 require conditions to levels that are beyond the relevant impact of specifying any Federal agencies to reinitiate tolerances of the species’ prey items and particular area as critical habitat. The consultation on previously reviewed result in direct or cumulative adverse Secretary may exclude an area from actions in instances where we have effects to the Black Warrior waterdog critical habitat if she determines that the listed a new species or subsequently and its lifecycle. benefits of such exclusion outweigh the designated critical habitat that may be (2) Actions that would significantly benefits of specifying such area as part affected and the Federal agency has increase sediment deposition within the of the critical habitat, unless she retained discretionary involvement or stream channel. Such activities could determines, based on the best scientific control over the action (or the agency’s include, but are not limited to, excessive data available, that the failure to discretionary involvement or control is sedimentation from livestock grazing, designate such area as critical habitat authorized by law). Consequently, road construction, channel alteration, will result in the extinction of the Federal agencies sometimes may need to timber harvest, off-road vehicle use, and species. In making that determination, request reinitiation of consultation with other watershed and floodplain the statute, as well as the legislative us on actions for which formal disturbances. These activities could history, is clear that the Secretary has consultation has been completed, if eliminate or reduce the habitat broad discretion regarding which those actions with discretionary necessary for the growth and factor(s) to use and how much weight to involvement or control may affect reproduction of the Black Warrior give to any factor. In this final rule, we subsequently listed species or waterdog by increasing the sediment have not considered any areas for designated critical habitat. deposition to levels that would exclusion from critical habitat.

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 275

Consideration of Economic Impacts Alabama Ecological Services Field or non-permitted plans or agreements Section 4(b)(2) of the Act and its Office (see ADDRESSES) or by from this critical habitat designation. implementing regulations require that downloading from the internet at http:// Accordingly, the Secretary is not we consider the economic impact that www.regulations.gov. exercising his discretion to exclude any areas from this final designation based may result from a designation of critical Exclusions Based on Impacts to habitat. In order to consider economic National Security and Homeland on other relevant impacts. impacts, we prepared an incremental Security Required Determinations effects memorandum (IEM) and Section 4(a)(3)(B)(i) of the Act may screening analysis which, together with Regulatory Planning and Review not cover all DoD lands or areas that (Executive Orders 12866 and 13563) our narrative and interpretation of pose potential national-security effects, constitute our draft economic concerns (e.g., a DoD installation that is Executive Order 12866 provides that analysis of the proposed critical habitat in the process of revising its INRMP for the Office of Information and Regulatory designation and related factors (IEc a newly listed species or a species Affairs (OIRA) in the Office of 2015). The analysis, dated July 15, 2015, previously not covered). If a particular Management and Budget will review all was made available for public review area is not covered under section significant rules. OIRA has determined from October 6, 2016, through December 4(a)(3)(B)(i), national-security or that this rule is not significant. 5, 2016. Following the close of the homeland-security concerns are not a Executive Order 13563 reaffirms the comment period, we reviewed and factor in the process of determining principles of E.O. 12866 while calling evaluated all information submitted what areas meet the definition of for improvements in the nation’s during the comment period that may ‘‘critical habitat.’’ Nevertheless, when regulatory system to promote pertain to our consideration of the designating critical habitat under predictability, to reduce uncertainty, probable incremental economic impacts section 4(b)(2), the Service must and to use the best, most innovative, of this critical habitat designation. consider impacts on national security, and least burdensome tools for Additional information relevant to the including homeland security, on lands achieving regulatory ends. The probable incremental economic impacts or areas not covered by section executive order directs agencies to of critical habitat designation for the 4(a)(3)(B)(i). Accordingly, we will consider regulatory approaches that Black Warrior waterdog is summarized always consider for exclusion from the reduce burdens and maintain flexibility below and available in the screening designation areas for which DoD, and freedom of choice for the public analysis for the Black Warrior waterdog Department of Homeland Security where these approaches are relevant, (IEc 2015, entire), available at http:// (DHS), or another Federal agency has feasible, and consistent with regulatory www.regulations.gov in Docket No. requested exclusion based on an objectives. E.O. 13563 emphasizes FWS–R4–ES–2016–0031. assertion of national-security or further that regulations must be based The final critical habitat designation homeland-security concerns. No DoD on the best available science and that for the Black Warrior waterdog is likely lands occur within or are affected by the the rulemaking process must allow for to result, annually, in less than 2 formal designation. public participation and an open consultations, 23 informal exchange of ideas. We have developed consultations, and 206 technical Exclusions Based on Other Relevant this rule in a manner consistent with assistance efforts related to silviculture, Impacts these requirements. mining, impoundments, commercial Under section 4(b)(2) of the Act, we Regulatory Flexibility Act (5 U.S.C. 601 and residential development, pipelines, consider any other relevant impacts, in et seq.) agriculture and other activities that addition to economic impacts and impact water quality. According to the impacts on national security. We Under the Regulatory Flexibility Act finding in the screening analysis, the consider a number of factors including (RFA; 5 U.S.C. 601 et seq.), as amended administrative cost of addressing whether there are permitted by the Small Business Regulatory adverse modification in the conservation plans covering the species Enforcement Fairness Act of 1996 consultations is estimated to be between in the area such as HCPs, safe harbor (SBREFA; 5 U.S.C. 801 et seq.), about $410 to $9,000 per consultation. agreements, or candidate conservation whenever an agency is required to Accordingly, the incremental agreements with assurances, or whether publish a notice of rulemaking for any administrative cost is not likely to there are non-permitted conservation proposed or final rule, it must prepare exceed $150,000 annually. This agreements and partnerships that would and make available for public comment designation of critical habitat is not be encouraged by designation of, or a regulatory flexibility analysis that likely to cause more requirements under exclusion from, critical habitat. In describes the effects of the rule on small State or local regulations, nor is it addition, we look at the existence of entities (i.e., small businesses, small expected to have perceptional effects on tribal conservation plans and organizations, and small government the markets. partnerships and consider the jurisdictions). However, no regulatory government-to-government relationship flexibility analysis is required if the Exclusions Based on Economic Impacts of the United States with tribal entities. head of the agency certifies the rule will As discussed above, the Service We also consider any social impacts that not have a significant economic impact considered the economic impacts of the might occur because of the designation. on a substantial number of small critical habitat designation and the In preparing this final rule, we have entities. The SBREFA amended the RFA Secretary is not exercising his discretion determined that there are currently no to require Federal agencies to provide a to exclude any areas from this permitted conservation plans or other certification statement of the factual designation of critical habitat for the non-permitted conservation agreements basis for certifying that the rule will not Black Warrior waterdog based economic or partnerships for the Black Warrior have a significant economic impact on impacts. waterdog, and the final designation does a substantial number of small entities. A copy of the IEM and screening not include any tribal lands or tribal According to the Small Business analysis with supporting documents trust resources. We anticipate no impact Administration, small entities include may be obtained by contacting the on tribal lands, partnerships, permitted small organizations such as

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 276 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

independent nonprofit organizations; comment period that may pertain to our ‘‘increase the stringency of conditions of small governmental jurisdictions, consideration of the probable assistance’’ or ‘‘place caps upon, or including school boards and city and incremental economic impacts of this otherwise decrease, the Federal town governments that serve fewer than critical habitat designation. Based on Government’s responsibility to provide 50,000 residents; and small businesses this information, we affirm our funding,’’ and the State, local, or tribal (13 CFR 121.201). Small businesses certification that this final critical governments ‘‘lack authority’’ to adjust include manufacturing and mining habitat designation will not have a accordingly. At the time of enactment, concerns with fewer than 500 significant economic impact on a these entitlement programs were: employees, wholesale trade entities substantial number of small entities, Medicaid; Aid to Families with with fewer than 100 employees, retail and a regulatory flexibility analysis is Dependent Children work programs; and service businesses with less than $5 not required. Child Nutrition; Food Stamps; Social million in annual sales, general and Services Block Grants; Vocational Energy Supply, Distribution, or Use— heavy construction businesses with less Rehabilitation State Grants; Foster Care, Executive Order 13211 than $27.5 million in annual business, Adoption Assistance, and Independent special trade contractors doing less than Executive Order 13211 (Actions Living; Family Support Welfare $11.5 million in annual business, and Concerning Regulations That Services; and Child Support agricultural businesses with annual Significantly Affect Energy Supply, Enforcement. ‘‘Federal private sector sales less than $750,000. To determine Distribution, or Use) requires agencies mandate’’ includes a regulation that if potential economic impacts to these to prepare Statements of Energy Effects ‘‘would impose an enforceable duty small entities are significant, we when undertaking certain actions. OMB upon the private sector, except (i) a considered the types of activities that has provided guidance for condition of Federal assistance or (ii) a might trigger regulatory impacts under implementing this Executive Order that duty arising from participation in a this designation as well as types of outlines nine outcomes that may voluntary Federal program.’’ project modifications that may result. In constitute ‘‘a significant adverse effect’’ The designation of critical habitat general, the term ‘‘significant economic when compared to not taking the does not impose a legally binding duty impact’’ is meant to apply to a typical regulatory action under consideration. on non-Federal Government entities or small business firm’s business The economic analysis finds that none private parties. Under the Act, the only operations. of these criteria are relevant to this regulatory effect is that Federal agencies The Service’s current understanding analysis. Thus, based on information in must ensure that their actions do not of the requirements under the RFA, as the economic analysis, energy-related destroy or adversely modify critical amended, and following recent court impacts associated with Black Warrior habitat under section 7. While non- decisions, is that Federal agencies are waterdog conservation activities within Federal entities that receive Federal required to evaluate the potential critical habitat are not expected. As funding, assistance, or permits, or that incremental impacts of rulemaking only such, the designation of critical habitat otherwise require approval or on those entities directly regulated by is not expected to significantly affect authorization from a Federal agency for the rulemaking itself, and therefore, not energy supplies, distribution, or use. an action, may be indirectly impacted required to evaluate the potential Therefore, this action is not a significant by the designation of critical habitat, the impacts to indirectly regulated entities. energy action, and no Statement of legally binding duty to avoid The regulatory mechanism through Energy Effects is required. destruction or adverse modification of which critical habitat protections are Unfunded Mandates Reform Act (2 critical habitat rests squarely on the realized is section 7 of the Act, which U.S.C. 1501 et seq.) Federal agency. Furthermore, to the requires Federal agencies, in extent that non-Federal entities are consultation with the Service, to ensure In accordance with the Unfunded indirectly impacted because they that any action authorized, funded, or Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate carried out by the Agency is not likely seq.), we make the following findings: in a voluntary Federal aid program, the to destroy or adversely modify critical (1) This rule will not produce a Unfunded Mandates Reform Act would habitat. Therefore, under section 7 only Federal mandate. In general, a Federal not apply, nor would critical habitat Federal action agencies are directly mandate is a provision in legislation, shift the costs of the large entitlement subject to the specific regulatory statute, or regulation that would impose programs listed above onto State requirement (avoiding destruction and an enforceable duty upon State, local, or governments. adverse modification) imposed by tribal governments, or the private sector, (2) We do not believe that this rule critical habitat designation. and includes both ‘‘Federal will significantly or uniquely affect Consequently, it is our position that intergovernmental mandates’’ and small governments because it will not only Federal action agencies will be ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 directly regulated by this designation. These terms are defined in 2 U.S.C. million or greater in any year; that is, it There is no requirement under the RFA 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ to evaluate the potential impacts to mandate’’ includes a regulation that under the Unfunded Mandates Reform entities not directly regulated. ‘‘would impose an enforceable duty Act. The designation of critical habitat Moreover, Federal agencies are not upon State, local, or tribal governments’’ imposes no obligations on State or local small entities. Therefore, because no with two exceptions. It excludes ‘‘a governments and, as such, a Small small entities are directly regulated by condition of Federal assistance.’’ It also Government Agency Plan is not this rulemaking, the Service certifies excludes ‘‘a duty arising from required. that the final critical habitat designation participation in a voluntary Federal will not have a significant economic program,’’ unless the regulation ‘‘relates Takings—Executive Order 12630 impact on a substantial number of small to a then-existing Federal program In accordance with E.O. 12630 entities. under which $500,000,000 or more is (Government Actions and Interference During the development of this final provided annually to State, local, and with Constitutionally Protected Private rule we reviewed and evaluated all tribal governments under entitlement Property Rights), we have analyzed the information submitted during the authority,’’ if the provision would potential takings implications of

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 277

designating critical habitat for the Black occur. However, it may assist these local our reasons for this determination in the Warrior waterdog in a takings governments in long-range planning Federal Register on October 25, 1983 implications assessment. The Act does (because these local governments no (48 FR 49244). This position was upheld not authorize the Service to regulate longer have to wait for case-by-case by the U.S. Court of Appeals for the private actions on private lands or section 7 consultations to occur). Ninth Circuit (Douglas County v. confiscate private property as a result of Where State and local governments Babbitt, 48 F.3d 1495 (9th Cir. 1995), critical habitat designation. Designation require approval or authorization from a cert. denied 516 U.S. 1042 (1996)). of critical habitat does not affect land Federal agency for actions that may ownership, or establish any closures, or affect critical habitat, consultation Government-to-Government restrictions on use of or access to the under section 7(a)(2) would be required. Relationship With Tribes designated areas. Furthermore, the While non-Federal entities that receive In accordance with the President’s designation of critical habitat does not Federal funding, assistance, or permits, memorandum of April 29, 1994 affect landowner actions that do not or that otherwise require approval or (Government-to-Government Relations require Federal funding or permits, nor authorization from a Federal agency for with Native American Tribal does it preclude development of habitat an action, may be indirectly impacted Governments; 59 FR 22951), Executive conservation programs or issuance of by the designation of critical habitat, the Order 13175 (Consultation and incidental take permits to permit actions legally binding duty to avoid Coordination With Indian Tribal that do require Federal funding or destruction or adverse modification of Governments), and the Department of permits to go forward. However, Federal critical habitat rests squarely on the the Interior’s manual at 512 DM 2, we agencies are prohibited from carrying Federal agency. readily acknowledge our responsibility out, funding, or authorizing actions that Civil Justice Reform—Executive Order to communicate meaningfully with would destroy or adversely modify 12988 recognized Federal Tribes on a critical habitat. A takings implications government-to-government basis. In assessment has been completed and In accordance with Executive Order accordance with Secretarial Order 3206 concludes that this designation of 12988 (Civil Justice Reform), the Office of June 5, 1997 (American Indian Tribal critical habitat for the Black Warrior of the Solicitor has determined that the Rights, Federal-Tribal Trust waterdog does not pose significant rule does not unduly burden the judicial Responsibilities, and the Endangered takings implications for lands within or system and that it meets the applicable Species Act), we readily acknowledge affected by the designation. standards set forth in sections 3(a) and our responsibilities to work directly 3(b)(2) of the Order. We are designating Federalism—Executive Order 13132 with tribes in developing programs for critical habitat in accordance with the healthy ecosystems, to acknowledge that In accordance with E.O. 13132 provisions of the Act. To assist the tribal lands are not subject to the same (Federalism), this final rule does not public in understanding the habitat controls as Federal public lands, to have significant Federalism effects. A needs of the species, the rule identifies remain sensitive to Indian culture, and Federalism assessment is not required. the elements of physical or biological to make information available to tribes. In keeping with Department of the features essential to the conservation of We determined that there are no tribal Interior and Department of Commerce the Black Warrior waterdog. The lands affected by the designation. policy, we requested information from, designated areas of critical habitat are and coordinated development of this presented on maps, and the rule References Cited final critical habitat designation with, provides several options for the A complete list of all references cited appropriate State resource agencies in interested public to obtain more is available on the internet at http:// Alabama. We received comments from detailed location information, if desired. www.regulations.gov and upon request Alabama and have addressed them in from the Alabama Ecological Services the Summary of Comments and Paperwork Reduction Act of 1995 (44 Field Office (see FOR FURTHER Recommendations section of the rule. U.S.C. 3501 et seq.) INFORMATION CONTACT). From a federalism perspective, the This rule does not contain any new designation of critical habitat directly collections of information that require Authors affects only the responsibilities of approval by OMB under the Paperwork The primary authors of this Federal agencies. The Act imposes no Reduction Act of 1995 (44 U.S.C. 3501 rulemaking are the staff members of the other duties with respect to critical et seq.). This rule will not impose Alabama Ecological Services Field habitat, either for States and local recordkeeping or reporting requirements Office. governments, or for anyone else. As a on State or local governments, result, the rule does not have substantial individuals, businesses, or List of Subjects in 50 CFR Part 17 direct effects either on the States, or on organizations. An agency may not Endangered and threatened species, the relationship between the national conduct or sponsor, and a person is not Exports, Imports, Reporting and government and the States, or on the required to respond to, a collection of recordkeeping requirements, distribution of powers and information unless it displays a Transportation. responsibilities among the various currently valid OMB control number. levels of government. The designation Regulation Promulgation may have some benefit to these National Environmental Policy Act (42 U.S.C. 4321 et seq.) Accordingly, we amend part 17, governments because the areas that subchapter B of chapter I, title 50 of the contain the features essential to the It is our position that, outside the Code of Federal Regulations, as set forth conservation of the species are more jurisdiction of the U.S. Court of Appeals below: clearly defined, and the physical and for the Tenth Circuit, we do not need to biological features of the habitat prepare environmental analyses PART 17—ENDANGERED AND necessary to the conservation of the pursuant to the National Environmental THREATENED WILDLIFE AND PLANTS species are specifically identified. This Policy Act in connection with information does not alter where and designating critical habitat under the ■ 1. The authority citation for part 17 what federally sponsored activities may Act. We published a notice outlining continues to read as follows:

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES 278 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

Authority: 16 U.S.C. 1361–1407; 1531– under ‘‘AMPHIBIANS’’ to the List of § 17.11 Endangered and threatened 1544; and 4201–4245; unless otherwise Endangered and Threatened Wildlife to wildlife. noted. read as follows: * * * * * ■ 2. Amend § 17.11(h) by adding an (h) * * * entry for ‘‘Waterdog, Black Warrior’’

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

******* AMPHIBIANS

******* Waterdog, Black Warrior Necturus alabamensis .... Wherever found ...... E 83 FR [Insert Federal Register page where the document begins], 1/3/2018.

*******

■ 3. In § 17.95, amend paragraph (d) by abundant rock crevices, rock slabs, and (3) Critical habitat does not include adding an entry for ‘‘Black Warrior leaf packs; manmade structures (such as buildings, Waterdog (Necturus alabamensis)’’ in (B) Moderate water velocity; and aqueducts, runways, roads, and other the same alphabetical order that the (C) Prey base of aquatic paved areas) and the land on which they species appears in the table at macroinvertebrates. are located existing within the legal § 17.11(h), to read as follows: (ii) Water that lacks harmful levels of boundaries on February 2, 2018. § 17.95 Critical habitat—fish and wildlife. pollutants, including inorganic (4) Critical habitat map units. Data contaminants such as copper, arsenic, * * * * * layers defining map units were created mercury, and cadmium; organic (d) Amphibians. from the USGS National Hydrography contaminants such as human and Datasets High Resolution Flowline layer * * * * * animal waste products; endocrine- using Universal Transverse Mercator Black Warrior Waterdog (Necturus disrupting chemicals; pesticides; (UTM) Zone 16N coordinates. Segments alabamensis) nitrogen, potassium, and phosphorus were mapped using 1983 UTM Zone 16 fertilizers; and petroleum distillates. (1) Critical habitat units are depicted projection. The maps in this entry, as (iii) Appropriate water quality for Blount, Etowah, Jefferson, Lawrence, modified by any accompanying parameters to support Black Warrior Marshall, Tuscaloosa, Walker, and regulatory text, establish the boundaries waterdog and primary prey base, Winston Counties, Alabama, on the of the critical habitat designation. The including: maps in this entry. coordinates or plot points or both on (A) Water temperature not exceeding which each map is based are available (2) Within these areas, the physical or ° biological features essential to the 85 F; to the public at the Service’s internet conservation of the Black Warrior (B) Dissolved oxygen 5.5 milligrams site at http://www.fws.gov/daphne/, at waterdog, which describe a riverine per liter (mg/L) or greater; http://www.regulations.gov under system with habitat to support all life- (C) Turbidity of an average monthly Docket No. FWS–R4–ES–2016–0031, history stages of the Black Warrior reading of 15 nephelometric turbidity and at the field office responsible for waterdog, consists of the following units above background readings; this designation. You may obtain field components: (D) 115 mg/L of total suspended office location information by (i) Geomorphically stable, medium to solids or less; and contacting one of the Service regional large streams (typically 4 meters (m) (13 (E) A specific conductance of no offices, the addresses of which are listed feet (ft)) wide or greater) with: greater than 225 microsiemens (mS) per at 50 CFR 2.2. (A) Substrate consisting of clay or centimeter at 80 °F. BILLING CODE 4333–15–P bedrock with little sand, and containing

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 279

(5) Note: Index map follows:

Index Map of Critical Habitat Units fOr Black Warrior Waterdog Bomt; Bowab, JelferSGn, tawrence, Marshal, Tuscaloosa, wamer, ami Winsfun Cmmties, Alabama

..,._ Back Warlior IJ!iatltfdog Ortical i't:abilat ·Unit Number labeled ~ lmerstates Highways 5~:es (;l emmtyBoundary tOOO,OOQ

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4725 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES ER03JA18.010 280 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

(6) Unit 1: Yellow Creek; Tuscaloosa (i) General description: Unit 1 is and river habitat from the headwaters of County, Alabama. approximately 30 rkm (19 rmi) of stream Yellow Creek to Holt Lake. (ii) Map of Unit 1 follows:

Unit 1 Critical Habitat for BJack WarriorWaterdog Tuscaloosa Coonty. Alabama

~ Bladi:WafiofW~ Olifca!HaMat ~US Highways , , , f:WeJs& Streams l..akes&Pcmds 1:184;325

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4725 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES ER03JA18.011 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 281

(7) Unit 2: Locust Fork; Blount, stream and river habitat from the confluence of Locust Fork, and from the Etowah, Jefferson, and Marshall headwaters of Locust Fork to Bankhead headwaters of Gurley Creek to the Counties, Alabama. Lake, from the headwaters of Slab Creek confluence of Locust Fork. (i) General description: Unit 2 is to the confluence of Locust Fork, from (ii) Map of Unit 2 follows: approximately 391 rkm (243 rmi) of the headwaters of Blackburn Fork to the

Unit 2 Critical Habitat tor Black .WarriorWaterdog Bomd, Bnwah,Jefersoo, and. Marshal Cmmties,. Alabama

~ ·Biack.WamorWateltlag Qil:cal ~ ----.... tmerstateHigllway Rivers & Slieamli ~s&P

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4725 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES ER03JA18.012 282 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

(9) Unit 3: Blackwater Creek; Walker rmi) of stream and river habitat from the headwaters of Brown Creek to the and Winston Counties, Alabama. headwaters of Blackwater Creek to the confluence of Blackwater Creek. (i) General description: Unit 3 confluence of Mulberry Fork, from the (ii) Map of Unit 3 follows: consists of approximately 128 rkm (80

Unit 3 Critical Habitat for Black Warrior Waterdog \Mnsloo af:ld Walker Coonties,Aiabama

.._,... Eltact WlmlorWaiefliog Cril!:atHabltat Ill Banldleali.Forest SeMce Distrid --...... , us HighwayS Rlv&ts &. Slwams Q ·eoontv6cru~ 1:250.000

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00074 Fmt 4700 Sfmt 4725 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES ER03JA18.013 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations 283

(10) Unit 4: Sipsey Fork; Lawrence headwaters of Sipsey Fork to Lewis confluence of Brushy Creek, and from and Winston Counties, Alabama. Smith Lake, from the headwaters of the headwaters of Capsey Creek to the (i) General description: Unit 4 Brushy Creek to Lewis Smith Lake, from confluence of Brushy Creek. consists of approximately 124 rkm (78 the headwaters of Rush Creek to the (ii) Map of Unit 4 follows: rmi) of stream and river habitat from the

Unit 4 Critical Habitat for Black Wam.or Waterdog l.awrence & ~stoor CountiesiAlabama

• Bankltead F-or~ Servk:e:Oisk'id ~Brac~Waflk)rWatemog~~· ..-,.,__.·US Higllways t&rers& StreamS Coollty&uridafy talces&Poods 0 1 .2 4 6 3 -- ~ .. o-- o.75.i.5 a 4.!f 6......

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES ER03JA18.014 284 Federal Register / Vol. 83, No. 2 / Wednesday, January 3, 2018 / Rules and Regulations

* * * * * the final 2017 and 2018 harvest Dated: December 28, 2017. Dated: November 21, 2017. specifications for groundfish of the GOA Alan D. Risenhoover, James W. Kurth, (82 FR 12032, February 27, 2017) and Director, Office of Sustainable Fisheries, inseason adjustment (82 FR 12032, National Marine Fisheries Service. Deputy Director for U.S. Fish and Wildlife Service, Exercising the Authority of the February 27, 2017). [FR Doc. 2017–28389 Filed 12–28–17; 4:15 pm] Director for U.S. Fish and Wildlife Service. In accordance with § 679.20(d)(1)(i), BILLING CODE 3510–22–P [FR Doc. 2017–28386 Filed 1–2–18; 8:45 am] the Administrator, Alaska Region, BILLING CODE 4333–15–C NMFS (Regional Administrator) has determined that the A season allowance DEPARTMENT OF COMMERCE of the 2018 Pacific cod TAC National Oceanic and Atmospheric apportioned to vessels using jig gear in DEPARTMENT OF COMMERCE Administration the Central Regulatory Area of the GOA National Oceanic and Atmospheric is necessary to account for the 50 CFR Part 679 Administration incidental catch in other anticipated fisheries. Therefore, the Regional [Docket No. 160920866–7167–02] 50 CFR Part 679 Administrator is establishing a directed RIN 0648–XF907 [Docket No. 160920866–7167–02] fishing allowance of 0 mt and is setting aside the remaining 37 mt as bycatch to Fisheries of the Exclusive Economic RIN 0648–XF894 support other anticipated groundfish Zone Off Alaska; Pacific Cod by fisheries. In accordance with Catcher Vessels Using Hook-and-Line Fisheries of the Exclusive Economic § 679.20(d)(1)(iii), the Regional Zone Off Alaska; Pacific Cod by Gear in the Western Regulatory Area of Administrator finds that this directed the Gulf of Alaska Vessels Using Jig Gear in the Central fishing allowance has been reached. Regulatory Area of the Gulf of Alaska Consequently, NMFS is prohibiting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: National Marine Fisheries directed fishing for Pacific cod by Atmospheric Administration (NOAA), Service (NMFS), National Oceanic and vessels using jig gear in the Central Commerce. Atmospheric Administration (NOAA), Regulatory Area of the GOA. After the Commerce. effective date of this closure the ACTION: Temporary rule; closure. maximum retainable amounts at ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed § 679.20(e) and (f) apply at any time fishing for Pacific cod by catcher vessels during a trip. SUMMARY: NMFS is prohibiting directed using hook-and-line gear in the Western fishing for Pacific cod by vessels using Classification Regulatory Area of the Gulf of Alaska jig gear in the Central Regulatory Area (GOA). This action is necessary to of the Gulf of Alaska (GOA). This action This action responds to the best prevent exceeding the A season is necessary to prevent exceeding the A available information recently obtained allowance of the 2018 Pacific cod total season allowance of the 2018 Pacific from the fishery. The Assistant allowable catch apportioned to catcher cod total allowable catch apportioned to Administrator for Fisheries, NOAA vessels using hook-and-line gear in the vessels using jig gear in the Central (AA), finds good cause to waive the Western Regulatory Area of the GOA. Regulatory Area of the GOA. requirement to provide prior notice and DATES: Effective 0000 hours, Alaska DATES: Effective 0000 hours, Alaska opportunity for public comment local time (A.l.t.), January 1, 2018, local time (A.l.t.), January 1, 2018, pursuant to the authority set forth at 5 through 1200 hours, A.l.t., June 10, through 1200 hours, A.l.t., June 10, U.S.C. 553(b)(B) as such requirement is 2018. 2018. impracticable and contrary to the public interest. This requirement is FOR FURTHER INFORMATION CONTACT: Josh FOR FURTHER INFORMATION CONTACT: Josh impracticable and contrary to the public Keaton, 907–586–7228. Keaton, 907–586–7228. interest as it would prevent NMFS from SUPPLEMENTARY INFORMATION: NMFS SUPPLEMENTARY INFORMATION: NMFS responding to the most recent fisheries manages the groundfish fishery in the manages the groundfish fishery in the data in a timely fashion and would GOA exclusive economic zone GOA exclusive economic zone delay the directed fishing closure of according to the Fishery Management according to the Fishery Management Pacific cod by vessels using jig gear in Plan for Groundfish of the Gulf of Plan for Groundfish of the Gulf of the Central Regulatory Area of the GOA. Alaska (FMP) prepared by the North Alaska (FMP) prepared by the North NMFS was unable to publish a notice Pacific Fishery Management Council Pacific Fishery Management Council providing time for public comment under authority of the Magnuson- under authority of the Magnuson- because the most recent, relevant data Stevens Fishery Conservation and Stevens Fishery Conservation and only became available as of December Management Act. Regulations governing Management Act. Regulations governing 27, 2017. fishing by U.S. vessels in accordance fishing by U.S. vessels in accordance The AA also finds good cause to with the FMP appear at subpart H of 50 with the FMP appear at subpart H of 50 waive the 30-day delay in the effective CFR part 600 and 50 CFR part 679. CFR part 600 and 50 CFR part 679. date of this action under 5 U.S.C. Regulations governing sideboard Regulations governing sideboard 553(d)(3). This finding is based upon protections for GOA groundfish protections for GOA groundfish the reasons provided above for waiver of fisheries appear at subpart B of 50 CFR fisheries appear at subpart B of 50 CFR prior notice and opportunity for public part 680. part 680. comment. The A season allowance of the 2018 The A season allowance of the 2018 Pacific cod total allowable catch (TAC) Pacific cod total allowable catch (TAC) This action is required by § 679.20 apportioned to catcher vessels using apportioned to vessels using jig gear in and is exempt from review under hook-and-line gear in the Western the Central Regulatory Area of the GOA Executive Order 12866. Regulatory Area of the GOA is 39 metric is 37 metric tons (mt), as established by Authority: 16 U.S.C. 1801 et seq. tons (mt), as established by the final

VerDate Sep<11>2014 15:15 Jan 02, 2018 Jkt 244001 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\03JAR1.SGM 03JAR1 jstallworth on DSKBBY8HB2PROD with RULES