5072 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

DEPARTMENT OF THE INTERIOR the left side of the screen, under the species and the Guyandotte River Document Type heading, click on the crayfish as an endangered species on Fish and Wildlife Service Proposed Rules link to locate this April 7, 2016 (81 FR 20450). document. You may submit a comment The basis for our action. Under the 50 CFR Part 17 by clicking on ‘‘Comment Now!’’ Act, any species that is determined to be an endangered or threatened species [Docket No. FWS–R5–ES–2019–0098; (2) By hard copy: Submit by U.S. mail 4500090023] or hand-delivery to: Public Comments shall, to the maximum extent prudent Processing, Attn: FWS–R5–ES–2019– and determinable, have habitat RIN 1018–BE19 0098, U.S. Fish and Wildlife Service, designated that is considered to be MS: JAO/1N, 5275 Leesburg Pike, Falls critical habitat. Section 4(b)(2) of the Endangered and Threatened Wildlife Church, VA 22041–3803. Act states that the Secretary shall and Plants; Designation of Critical We request that you send comments designate and make revisions to critical Habitat for the Big Sandy Crayfish and only by the methods described above. habitat on the basis of the best available the Guyandotte River Crayfish We will post all comments on http:// scientific data after taking into AGENCY: Fish and Wildlife Service, www.regulations.gov. This generally consideration the economic impact, the Interior. means that we will post any personal impact on national security, and any other relevant impact of specifying any ACTION: Proposed rule. information you provide us (see Public Comments, below, for more particular area as critical habitat. SUMMARY: We, the U.S. Fish and information). Section 3(5)(A) of the Act defines Wildlife Service (Service), propose to Document availability: This proposed critical habitat as (i) the specific areas designate critical habitat for the Big rule and the DEA are available on the within the geographical area occupied Sandy crayfish (Cambarus callainus) internet at http://www.regulations.gov at by the species, at the time it is listed, and the Guyandotte River crayfish (C. Docket No. FWS–R5–ES–2019–0098, on which are found those physical or veteranus) under the Endangered and at the North Atlantic-Appalachian biological features (I) essential to the Species Act of 1973, as amended (Act). Regional Office (see FOR FURTHER conservation of the species and (II) In total, approximately 582 stream INFORMATION CONTACT). which may require special management kilometers (skm) (362 stream miles The coordinates or plot points or both considerations or protections; and (ii) (smi)) in Martin and Pike Counties, from which the maps are generated are specific areas outside the geographical Kentucky; Buchanan, Dickenson, and included in the administrative record area occupied by the species at the time Wise Counties, Virginia; and McDowell, for this critical habitat designation and it is listed, upon a determination by the Mingo, and Wayne Counties, West are available at http:// Secretary that such areas are essential Virginia, are proposed as critical habitat www.regulations.gov at Docket No. for the conservation of the species. The for the Big Sandy crayfish. FWS–R5–ES–2019–0098, and at the Secretary may exclude an area from Approximately 135 skm (84 smi) in North Atlantic-Appalachian Regional critical habitat if he determines that the Logan and Wyoming Counties, West Office (see FOR FURTHER INFORMATION benefits of such exclusion outweigh the Virginia, are proposed as critical habitat CONTACT). Any additional tools or benefits of specifying such area as part for the Guyandotte River crayfish. If we supporting information that we may of the critical habitat, unless he finalize this rule as proposed, it would develop for this critical habitat determines, based on the best scientific extend the Act’s protections to these designation will also be available at the data available, that the failure to species’ critical habitat. We also Regional Office set out above, and may designate such area as critical habitat announce the availability of a draft also be included in the preamble and/ will result in the extinction of the economic analysis of the proposed or at http://www.regulations.gov. species. The critical habitat areas we are designation of critical habitat for these FOR FURTHER INFORMATION CONTACT: species. proposing to designate in this rule Martin Miller, Chief, Endangered constitute our current best assessment of DATES: We will accept comments on the Species, U.S. Fish and Wildlife Service, the areas that meet the definition of proposed rule or draft economic North Atlantic-Appalachian Regional critical habitat for the Big Sandy and analysis (DEA) that are received or Office, 300 Westgate Center Drive, Guyandotte River crayfishes. We postmarked on or before March 30, Hadley, MA 01035; telephone 413–253– propose to designate: 2020. Comments submitted 8615. Persons who use a • Approximately 582 stream electronically using the Federal telecommunications device for the deaf kilometers (skm) (362 stream miles eRulemaking Portal (see ADDRESSES, (TDD) may call the Federal Relay (smi)) of streams for the Big Sandy below) must be received by 11:59 p.m. Service at 800–877–8339. crayfish. Eastern Time on the closing date. We SUPPLEMENTARY INFORMATION: • Approximately 135 skm (84 smi) of must receive requests for a public streams for the Guyandotte River Executive Summary hearing, in writing, at the address crayfish. shown in FOR FURTHER INFORMATION Why we need to publish a rule. Under We prepared an economic analysis of CONTACT by March 13, 2020. the Act, any species that is determined the proposed designation of critical ADDRESSES: Written comments: You may to be an endangered or threatened habitat. In order to consider economic submit comments on the proposed rule species requires critical habitat to be impacts, we prepared an analysis of the or DEA by one of the following designated, to the maximum extent economic impacts of the proposed methods: prudent and determinable. Designations critical habitat designation. We hereby (1) Electronically: Go to the Federal and revisions of critical habitat can only announce the availability of the draft eRulemaking Portal: http:// be completed by issuing a rule. economic analysis and seek public www.regulations.gov. In the Search box, This rule proposes to designate review and comment. enter FWS–R5–ES–2019–0098, which is critical habitat for two species of Peer review. In accordance with our the docket number for this rulemaking. crayfish, the Big Sandy crayfish and the joint policy on peer review published in Then, click on the Search button. On the Guyandotte River crayfish. We listed the the Federal Register on July 1, 1994 (59 resulting page, in the Search panel on Big Sandy crayfish as a threatened FR 34270), we are seeking comments

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5073

from independent specialists to ensure We particularly seek comments allow us to verify any scientific or that this critical habitat proposal is regarding: commercial information you include. based on scientifically sound data and (i) Whether occupied areas are Please note also that comments analyses. We have invited these peer inadequate for the conservation of the merely stating support for or opposition reviewers to comment on our specific species; and to the action under consideration assumptions and conclusions in this (ii) Specific information that supports without providing supporting proposal to designate critical habitat. the determination that unoccupied areas information, although noted, will not be Because we will consider all comments will, with reasonable certainty, considered in making a determination, and information we receive during the contribute to the conservation of the as section 4(b)(1)(A) of the Act directs comment period, our final species and contain at least one physical that we must make determinations determinations may differ from this or biological feature essential to the ‘‘solely on the basis of the best scientific proposal. conservation of the species. and commercial data available.’’ (3) Land use designations and current You may submit your comments and Information Requested or planned activities in the subject areas materials concerning this proposed rule Public Comments and their possible effects on proposed by one of the methods listed in critical habitat. ADDRESSES. We request that you send We intend that any final action (4) Any probable economic, national comments only by the methods resulting from this proposed rule will be security, or other relevant effects of described in ADDRESSES. based on the best scientific and designating any area that may be If you submit information via http:// commercial data available and be as included in the final designation, and www.regulations.gov, your entire accurate and as effective as possible. the benefits of including or excluding submission—including any personal Therefore, we request comments or areas that may be affected. identifying information—will be posted information from other concerned (5) Information on the extent to which on the website. If your submission is governmental agencies, Native the description of probable economic made via a hardcopy that includes American tribes, the scientific effects in the draft economic analysis personal identifying information, you community, industry, or any other (DEA) is a reasonable estimate of the may request at the top of your document interested parties concerning this likely economic effects. that we withhold this information from proposed rule. We particularly seek (6) Information on land ownership public review. However, we cannot comments concerning: within proposed critical habitat areas, guarantee that we will be able to do so. (1) The reasons why we should or particularly tribal land ownership We will post all hardcopy submissions should not designate habitat as ‘‘critical (allotments, trust, and/or fee) so that the on http://www.regulations.gov. habitat’’ under section 4 of the Act (16 Service may best implement Secretarial Comments and materials we receive, U.S.C. 1531 et seq.), including Order 3206 (American Indian Tribal as well as supporting documentation we information to answer the following Rights, Federal-Tribal Trust used in preparing this proposed rule, questions: Responsibilities, and the Endangered will be available for public inspection (a) Are the species threatened by Species Act). on http://www.regulations.gov, or by taking or other human activity, and (7) Whether any specific areas we are appointment, during normal business would identification of critical habitat proposing for critical habitat hours, at the U.S. Fish and Wildlife be expected to increase the degree of designation should be considered for Service, Northeast Regional Office (see such threat to the species? exclusion under section 4(b)(2) of the FOR FURTHER INFORMATION CONTACT). (b) Is the present or threatened Act, and whether the benefits of destruction, modification, or potentially excluding any specific area Public Hearing curtailment of a species’ habitat or range outweigh the benefits of including that Section 4(b)(5) of the Act provides for a threat to the species, or do the threats area under section 4(b)(2) of the Act. a public hearing on this proposal, if to the species’ habitats stem solely from Specific information we seek includes requested. Requests must be received by causes that cannot be addressed through information on any conservation plans the date specified above in DATES. Such management actions resulting from within the proposed critical habitat requests must be sent to the address consultation under section 7(a)(2) of the areas that provide conservation for the shown in FOR FURTHER INFORMATION Act? Big Sandy or Guyandotte River CONTACT. We will schedule a public (c) Do any areas meet the definition of crayfishes and their habitats. hearing on this proposal, if requested, critical habitat? (8) The likelihood of adverse social and announce the date, time, and place (2) Specific information on: reactions to the designation of critical of the hearing, as well as how to obtain (a) The amount and distribution of Big habitat, as discussed in the associated reasonable accommodations, in the Sandy crayfish or Guyandotte River documents of the DEA, and how the Federal Register and local newspapers crayfish habitat; consequences of such reactions, if likely at least 15 days before the hearing. (b) What areas, that were occupied at to occur, would relate to the the time of listing (i.e., are currently conservation and regulatory benefits of Previous Federal Actions occupied) and that contain features the proposed critical habitat Federal actions prior to April 7, 2015, essential to the conservation of the designation. are described in the proposed rule to list species, should be included in the (9) Whether we could improve or the Big Sandy crayfish and the designation and why; modify our approach to designating Guyandotte River crayfish under the Act (c) Special management critical habitat in any way to provide for (80 FR 18710; April 7, 2015). considerations or protection that may be greater public participation and On April 7, 2016 (81 FR 20450), we needed in critical habitat areas we are understanding, or to better listed the Big Sandy crayfish as a proposing, including managing for the accommodate public concerns and threatened species and the Guyandotte potential effects of climate change; and comments. River crayfish as an endangered species. (d) What areas not occupied at the Please include sufficient information In the April 7, 2015, proposed listing time of listing are essential for the with your submission (such as scientific rule (80 FR 18710), we stated that conservation of the species and why. journal articles or other publications) to designating critical habitat at that time

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5074 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

was prudent but not determinable. On to, all activities associated with characteristics that support ephemeral March 28, 2018, the Service received a scientific resources management such as or dynamic habitat conditions. Features notice of intent (NOI) to sue letter from research, census, law enforcement, may also be expressed in terms relating the Center for Biological Diversity (CBD) habitat acquisition and maintenance, to principles of conservation biology, alleging that the Service failed to propagation, live trapping, and such as patch size, distribution designate critical habitat for the Big transplantation, and, in the distances, and connectivity. Sandy crayfish and the Guyandotte extraordinary case where population Under the second prong of the Act’s River crayfish within the timeframe set pressures within a given ecosystem definition of critical habitat, we can forth in the Act. On May 23, 2018, the cannot be otherwise relieved, may designate critical habitat in areas Service responded to CBD’s NOI, include regulated taking. outside the geographical area occupied explaining that the proposed critical Critical habitat receives protection by the species at the time it is listed, habitat designations for these two under section 7 of the Act through the upon a determination that such areas species were not currently among the requirement that Federal agencies are essential for the conservation of the highest priority actions outlined in our ensure, in consultation with the Service, species. When designating critical 7-year National Listing Workplan and that any action they authorize, fund, or habitat, the Secretary will first evaluate more specific fiscal year 2018 carry out is not likely to result in the areas occupied by the species. The Workplan. On June 20, 2018, CBD filed destruction or adverse modification of Secretary will only consider unoccupied suit alleging that the Service failed to critical habitat. The designation of areas to be essential where a critical designate critical habitat within the critical habitat does not affect land habitat designation limited to Act’s required timeline (CBD v. Zinke, ownership or establish a refuge, geographical areas occupied by the No. 2:18–cv–11111 (S.D.W.Va.)). On wilderness, reserve, preserve, or other species would be inadequate to ensure September 21, 2018, we filed an conservation area. Such designation the conservation of the species. In unopposed motion to stay litigation (No. does not allow the government or public addition, for an unoccupied area to be 2:18–cv–01058 (S.D.W.Va.)) until to access private lands or require considered essential, the Secretary must December 31, 2019. On October 18, implementation of restoration, recovery, determine that there is a reasonable 2018, the court granted our motion to or enhancement measures by non- certainty both that the area will stay (No. 2:18–cv–01058 (S.D.W.Va.)). Federal landowners. Where a landowner contribute to the conservation of the requests Federal agency funding or species and that the area contains one Background authorization for an action that may or more of those physical or biological Critical habitat is defined in section 3 affect a listed species or critical habitat, features essential to the conservation of of the Act as: the consultation requirements of section the species. (1) The specific areas within the 7(a)(2) of the Act would apply, but even Section 4 of the Act requires that we geographical area occupied by the in the event of a destruction or adverse designate critical habitat on the basis of species, at the time it is listed in modification finding, the obligation of the best scientific data available. accordance with the Act, on which are the Federal action agency and the Further, our Policy on Information found those physical or biological landowner is not to restore or recover Standards Under the Endangered features: the species, but to implement Species Act (published in the Federal (a) Essential to the conservation of the reasonable and prudent alternatives to Register on July 1, 1994 (59 FR 34271)), species, and avoid destruction or adverse the Information Quality Act (section 515 (b) Which may require special modification of critical habitat. of the Treasury and General management considerations or Under the first prong of the Act’s Government Appropriations Act for protection; and definition of critical habitat, areas Fiscal Year 2001 (Pub. L. 106–554; H.R. (2) Specific areas outside the within the geographical area occupied 5658)), and our associated Information geographical area occupied by the by the species at the time it was listed Quality Guidelines, provide criteria, species at the time it is listed, upon a are included in a critical habitat establish procedures, and provide determination that such areas are designation if they contain physical or guidance to ensure that our decisions essential for the conservation of the biological features (1) which are are based on the best scientific data species. essential to the conservation of the available. They require our biologists, to Our regulations at 50 CFR 424.02 species and (2) which may require the extent consistent with the Act and define the geographical area occupied special management considerations or with the use of the best scientific data by the species as an area that may protection. For these areas, critical available, to use primary and original generally be delineated around species’ habitat designations identify, to the sources of information as the basis for occurrences, as determined by the extent known using the best scientific recommendations to designate critical Secretary (i.e., range). Such areas may and commercial data available, those habitat. include those areas used throughout all physical or biological features that are When we are determining which areas or part of the species’ life cycle, even if essential to the conservation of the should be designated as critical habitat, not used on a regular basis (e.g., species (such as space, food, cover, and our primary source of information is migratory corridors, seasonal habitats, protected habitat). In identifying those generally the information from the and habitats used periodically, but not physical or biological features within an species status assessment (SSA) report, solely by vagrant individuals). area, we focus on the specific features if available, and information developed Conservation, as defined under that support the life-history needs of the during the listing process for the section 3 of the Act, means to use and species, including, but not limited to, species. Additional information sources the use of all methods and procedures water characteristics, soil type, may include any generalized that are necessary to bring an geological features, prey, vegetation, conservation strategy, criteria, or outline endangered or threatened species to the symbiotic species, or other features. A that may have been developed for the point at which the measures provided feature may be a single habitat species; the recovery plan for the pursuant to the Act are no longer characteristic, or a more complex species; articles in peer-reviewed necessary. Such methods and combination of habitat characteristics. journals; conservation plans developed procedures include, but are not limited Features may include habitat by states and counties; scientific surveys

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5075

and studies; biological assessments; is not a threat to the species, or threats by the species at the time of listing to other published materials; or experts’ to the species’ habitat stem from causes designate as critical habitat, we consider opinions or personal knowledge. that cannot be addressed through the physical or biological features that Habitat is dynamic, and species may management actions resulting from are essential to the conservation of the move from one area to another over consultations under section 7(a)(2) of species and which may require special time. We recognize that critical habitat the Act; management considerations or designated at a particular point in time (iii) Areas within the jurisdiction of protection. These include, but are not may not include all of the habitat areas the United States provide no more than limited to: that we may later determine are negligible conservation value, if any, for (1) Space for individual and necessary for the recovery of the a species occurring primarily outside population growth and for normal species. For these reasons, a critical the jurisdiction of the United States; behavior; habitat designation does not signal that (iv) No areas meet the definition of (2) Food, water, air, light, minerals, or habitat outside the designated area is critical habitat; or other nutritional or physiological unimportant or may not be needed for (v) After analyzing the best scientific requirements; the recovery of the species. Areas that data available, the Secretary otherwise (3) Cover or shelter; are important for the conservation of the determines that designation of critical (4) Sites for breeding, reproduction, or listed species, both inside and outside habitat would not be prudent. rearing (or development) of offspring; the critical habitat designation, will We did not identify any of the factors and continue to be subject to: (1) above to apply to the Big Sandy crayfish (5) Habitats that are protected from Conservation actions implemented or the Guyandotte River crayfish. disturbance or are representative of the under section 7(a)(1) of the Act; (2) Therefore, we find that designation of historical, geographical, and ecological regulatory protections afforded by the critical habitat is prudent for both the distributions of a species. requirement in section 7(a)(2) of the Act Big Sandy crayfish and the Guyandotte The features may also be for Federal agencies to ensure their River crayfish. combinations of habitat characteristics actions are not likely to jeopardize the and may encompass the relationship Critical Habitat Determinability continued existence of any endangered between characteristics or the necessary or threatened species; and (3) section 9 Having determined that designation is amount of a characteristic essential to of the Act’s prohibitions on taking any prudent, under section 4(a)(3) of the Act support the life history of the species. In individual of the species, including we must find whether critical habitat for considering whether features are taking caused by actions that affect the species is determinable. Our essential to the conservation of the habitat. Federally funded or permitted regulations at 50 CFR 424.12(a)(2) state species, the Service may consider an projects affecting listed species outside that critical habitat is not determinable appropriate quality, quantity, and their designated critical habitat areas when one or both of the following spatial and temporal arrangement of may still result in jeopardy findings in situations exist: habitat characteristics in the context of some cases. These protections and (i) Data sufficient to perform required the life-history needs, condition, and conservation tools will continue to analyses are lacking; or status of the species. We derived the contribute to recovery of this species. (ii) The biological needs of the species specific physical or biological features Similarly, critical habitat designations are not sufficiently well known to required for the Big Sandy crayfish and made on the best available information identify any area that meets the the Guyandotte River crayfish from at the time of designation will not definition of ‘‘critical habitat.’’ studies and observations of these control the direction and substance of As we discussed in the proposed rule species’ habitat, ecology, and life future recovery plans, habitat (80 FR 18710; April 7, 2015) and in history, which are discussed in full in conservation plans (HCPs), or other accordance with 16 U.S.C. the species’ proposed and final listing species conservation planning efforts if 1533(b)(6)(C)(ii)), we concluded that rules (80 FR 18710, April 7, 2015; 81 FR new information available at the time of critical habitat was not determinable at 20450, April 7, 2016, respectively). The these planning efforts indicates a that time because we were seeking primary habitat elements that influence different outcome. additional information on the Big Sandy resiliency of these species include, but and Guyandotte River crayfishes, but are not limited to, the degree of Prudency Determination that we would make a critical habitat sedimentation, water quality thresholds, Section 4(a)(3) of the Act and determination no later than 1 year and extent of habitat connectedness. implementing regulations (50 CFR following publication of the final listing Summary of Essential Physical or 424.12) require that the Secretary shall rule. We have since received and Biological Features designate critical habitat at the time a reviewed additional data on the species is determined to be an biological needs of these species and the We derived the specific physical or endangered or threatened species, to the habitat characteristics where they are biological features required for the Big maximum extent prudent and located. This and other information Sandy crayfish and the Guyandotte determinable. Our regulations (50 CFR represent the best scientific data River crayfish from studies and 424.12(a)(1)) state that the Secretary available and lead us to conclude that observations of these species’ habitat, may, but is not required to, determine the designation of critical habitat is ecology, and life history, which are that a designation would not be prudent determinable for the Big Sandy and the discussed in full in the species’ in the following circumstances: Guyandotte River crayfishes. proposed and final listing rules (80 FR (i) The species is threatened by taking 18710, April 7, 2015; 81 FR 20450, April or other human activity, and Physical or Biological Features 7, 2016, respectively), and summarized identification of critical habitat can be Essential to the Conservation of the here. While data are sparse with which expected to increase the degree of such Species to quantitatively define the optimal or threat to the species; In accordance with section 3(5)(A)(i) range of suitable conditions for a (ii) The present or threatened of the Act and regulations at 50 CFR specific biological or physical feature destruction, modification, or 424.12(b), in determining which areas needed by these species (e.g., degree of curtailment of a species’ habitat or range within the geographical area occupied sedimentation, water quality thresholds,

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5076 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

extent of habitat connectedness), the essential for the conservation of the Big vehicle (ORV) use; and (5) other sources available species-specific information, Sandy and Guyandotte River crayfishes: of non-point source pollution. These in combination with information from (1) Fast-flowing stream reaches with activities are discussed in more detail other similar crayfish species, provides unembedded slab boulders, cobbles, or under Summary of Factors Affecting the sufficient information to qualitatively isolated boulder clusters within an Species in the final listing rule (81 FR discuss the physical and biological unobstructed stream continuum (i.e., 20450; April 7, 2016). These threats are features needed to support these riffle, run, pool complexes) of in addition to potential adverse effects species. As discussed in the proposed permanent, moderate- to large-sized of drought, floods, or other natural (80 FR 18710, April 7, 2015) and final (generally third order and larger) phenomena. (81 FR 20450, April 7, 2016) listing streams and rivers (up to the ordinary Management activities that could rules, these species are classified as high water mark as defined at 33 CFR ameliorate these threats include, but are ‘‘tertiary’’ (stream) burrowing crayfish, 329.11). not limited to: Use of best management meaning that they do not exhibit (2) Streams and rivers with natural practices (BMPs) designed to reduce complex burrowing behavior; instead, of variations in flow and seasonal flooding erosion, sedimentation, and stream bank digging holes they shelter in shallow sufficient to effectively transport destruction; development of alternatives excavations under loose cobbles and sediment and prevent substrate that avoid and minimize stream bed boulders on the stream bottom embeddedness. disturbances; regulation of ORV use in (Loughman 2013, p. 1). These species (3) Water quality characterized by or near streams; and reduction of other are opportunistic omnivores, with seasonally moderated temperatures and watershed and floodplain disturbances seasonal-mediated tendencies for physical and chemical parameters (e.g., that contribute excess sediments or animal or plant material (Thoma 2009, pH, conductivity, dissolved oxygen) pollutants into the water. p. 13; Loughman 2014, p. 21). The sufficient for the normal behavior, growth, reproduction, and viability of Criteria Used To Identify Critical general life cycle pattern of these Habitat species is 2 to 3 years of growth, all life stages of the species. As required by section 4(b)(2) of the maturation in the third year, and first (4) An adequate food base, indicated Act, we use the best scientific data mating in midsummer of the third or by a healthy aquatic community available to designate critical habitat. In fourth year (Thoma 2009, entire; Thoma structure including native benthic accordance with the Act and our 2010, entire). Following midsummer macroinvertebrates, fishes, and plant implementing regulations at 50 CFR mating, the annual cycle involves egg matter (e.g., leaf litter, algae, detritus). (5) Aquatic habitats protected from 424.12(b), we review available laying in late summer or fall, spring riparian and instream activities that information pertaining to the habitat release of young, and late spring/early degrade the physical and biological requirements of the species and identify summer molting (Thoma 2009, entire; features described in (1) through (4), specific areas within the geographical Thoma 2010, entire). The Big Sandy and above, or cause physical (e.g., crushing) area occupied by the species at the time Guyandotte River crayfishes’ likely injury or death to individual Big Sandy of listing and any specific areas outside lifespan is 5 to 7 years, with the or Guyandotte River crayfish. the geographical area occupied by the possibility of some individuals reaching (6) An interconnected network of species to be considered for designation 10 years of age (Thoma 2009, entire; streams and rivers that have the as critical habitat. We are proposing to Thoma 2010, entire; Loughman 2014, p. physical and biological features designate critical habitat in areas within 20). described in (1) through (4), above, that the geographical area occupied by the Suitable habitat for both the Big allow for the movement of individual Big Sandy crayfish and Guyandotte Sandy crayfish and the Guyandotte crayfish in response to environmental, River crayfish at the time of listing in River crayfish appears to be limited to physiological, or behavioral drivers. The 2016. For the Guyandotte River crayfish, higher elevation, clean, medium-sized scale of the interconnected stream we also are proposing to designate three streams and rivers in the upper reaches network should be sufficient to allow specific streams outside the of the Big Sandy and Guyandotte river for gene flow within and among geographical area occupied by the basins, respectively (Jezerinac et al. watersheds. species at the time of listing because we 1995, p. 171; Channell 2004, pp. 21–23; have determined that a designation Taylor and Shuster 2004, p. 124; Thoma Special Management Considerations or limited to occupied areas would be 2009, p. 7; Thoma 2010, pp. 3–4, 6; Protections inadequate to ensure the conservation of Loughman 2013, p. 1; Loughman 2014, When designating critical habitat, we the species. These currently unoccupied pp. 22–23). Both species are associated assess whether the specific areas within streams are within the larger occupied with the faster moving water of riffles the geographical area occupied by the watershed of the Guyandotte River and runs or pools with current species at the time of listing contain crayfish’s range and adjacent to (Jezerinac et al. 1995, p. 170). An features which are essential to the currently occupied streams. Proposed important habitat feature for both conservation of the species and which critical habitat includes the water and species is an abundance of large, may require special management stream channel up to the ordinary high unembedded slab boulders on a sand, considerations or protection. The water mark as defined at 33 CFR 329.11. cobble, or bedrock stream bottom features essential to the conservation of The current distribution of both the (Loughman 2013, p. 2; Loughman 2014, the Big Sandy and Guyandotte River Big Sandy and the Guyandotte River pp. 9–11). Excessive sedimentation crayfishes may require special crayfishes is fragmented and much leading to substrate embeddedness management considerations or reduced from their historical creates unsuitable conditions for these protections to reduce the following distributions. As specified in the species (Jezerinac et al. 1995, p. 171; threats: (1) Resource extraction (coal Service’s recovery outline for these Channell 2004, pp. 22–23; Thoma 2009, mining, timber harvesting, and oil and species (Service 2018, entire), we p. 7; Thoma 2010, pp. 3–4; Loughman gas development); (2) road construction anticipate that recovery will require 2013, p. 6). As such, we have and maintenance (including unpaved protection of existing populations and determined that the following physical roads and trails); (3) instream dredging habitat for both species, and in the case and biological features (PBFs) are or construction projects; (4) off-road of the Guyandotte River crayfish,

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5077

reestablishing populations in some determined that these two subunits do effects from ORV use in and around historically occupied streams where the not provide sufficient redundancy or Pinnacle Creek and other trail systems species is presumed extirpated. These resiliency necessary for the conservation adjacent to crayfish streams. In addition, additional populations will increase the of the species. The Pinnacle Creek the Service, West Virginia Department species’ resiliency, representation, and population is known from a 5.2-skm of Natural Resources, Virginia redundancy, thereby increasing the (3.3-smi) stream reach, and survey data Department of Game and Inland likelihood that it will sustain collected between 2009 and 2015 Fisheries, and West Liberty University populations over time. indicate that this area has low crayfish are working together to conduct Sources of data for this proposed numbers. This small, isolated additional research on both the critical habitat designation include population is at risk of extirpation from Guyandotte River and Big Sandy crayfish survey and habitat assessment demographic and environmental crayfishes, including research on habitat reports (Jezerinac et al. 1995, entire; stochasticity, and a catastrophic event. use and activity patterns and captive Channell 2004, entire; Taylor and The Clear Fork population occurs along holding and propagation. We are Shuster 2004, entire; Thoma 2009a, a 33-skm (22-smi) stream reach, and reasonably certain that each unoccupied entire; Thoma 2009b, entire; Thoma surveys from 2015 indicate several sites subunit will contribute to the 2010, entire; Loughman 2013, entire; with ‘‘robust’’ crayfish numbers. The conservation of the species by furthering Loughman 2014, entire; Loughman primary risk to this population is the preliminary recovery goals 2015a, entire; Loughman 2015b, entire) extirpation from a catastrophic event; identified in the recovery outline of and project-specific reports submitted to however, because it is an isolated increasing the Guyandotte River the Service (Appalachian Technical population, demographic or stochastic crayfish’s resiliency, redundancy and Services, Inc. (ATS) 2009, entire; ATS declines present some risk. representation. Bolstering the species’ 2010, entire; Vanasse Hangen Brustlin, viability will reduce the species’ risk of Areas Outside of the Geographic Range Inc. (VHB) 2011, entire; ATS 2012a, extinction. entire; ATS 2012b, entire; Virginia at the Time of Listing Department of Transportation (VDOT) Because we have determined General Information on the Maps of the 2014a, entire; VDOT 2014b, entire; occupied areas alone are not adequate Proposed Critical Habitat Designation VDOT 2015, entire; ATS 2017, entire; for the conservation of the Guyandotte The proposed critical habitat Red Wing 2017, entire; Third Rock River crayfish, we have evaluated designation is defined by the map or 2017, entire; Red Wing 2018, entire). whether any unoccupied areas are maps, as modified by any accompanying essential for the conservation of the regulatory text, presented at the end of Areas Occupied at the Time of Listing species. We are proposing as critical this document under Proposed As described in the final listing rule habitat three currently unoccupied Regulation Promulgation. We include for the Big Sandy and Guyandotte River subunits within the Upper Guyandotte more detailed information on the crayfishes (81 FR 20450; April 7, 2016), basin unit. We have determined that boundaries of the proposed critical the best available data (stream surveys each is essential for the conservation of habitat designation in the discussion of conducted between 2006 and 2016) the species. Two of the currently individual units and subunits, below. indicate that at the time of listing, the unoccupied subunits, Guyandotte River We will make the coordinates or plot Big Sandy crayfish occupied 26 streams and Indian Creek, provide for an points or both on which each map is and rivers (generally third order and increase in the species’ redundancy and, based available to the public on http:// larger) in the Russell Fork, Upper Levisa by providing connectivity between the www.regulations.gov under Docket No. Fork, Lower Levisa Fork, and Tug Fork subunits, increase the resiliency of the FWS–R5–ES–2019–0098, and at the watersheds in the upper Big Sandy extant populations in Pinnacle Creek North Atlantic-Appalachian Regional River basin of Kentucky, Virginia, and and Clear Fork. One of the proposed Office (see FOR FURTHER INFORMATION West Virginia. The Guyandotte River unoccupied subunits, Huff Creek, is CONTACT, above). When determining crayfish occupied two similarly-sized isolated from the other units by the R.D. proposed critical habitat boundaries, we streams in the Upper Guyandotte River Bailey dam, but provides for increased made every effort to avoid including basin of West Virginia. overall redundancy of the species and developed areas such as lands covered We propose to designate a total of 4 adds representation in this area of its by pavement, buildings, and other occupied units, including a total of 19 historical range. As discussed in the structures because such lands lack occupied subunits, as critical habitat for recovery outline for the species (Service physical or biological features necessary the Big Sandy crayfish in the 2018, entire), successful conservation of for the Big Sandy and Guyandotte River aforementioned watersheds. In addition, the Guyandotte River crayfish will crayfishes. The scale of the maps we we propose to designate one unit, require the establishment of additional prepared under the parameters for including two occupied subunits, as populations within the species’ publication within the Code of Federal critical habitat for the Guyandotte River historical range; the three proposed Regulations may not reflect the crayfish in the Upper Guyandotte River unoccupied subunits advance this goal. exclusion of such developed lands. Any watershed in West Virginia. For the All three subunits have at least one of such lands inadvertently left inside Guyandotte River crayfish, we have the physical or biological features critical habitat boundaries shown on the determined that a designation limited to essential to the conservation of the maps of this proposed rule have been the two occupied subunits would be species. To reduce threats to the species excluded by text in the proposed rule inadequate to ensure the conservation of and its habitat, the Service is working and are not proposed for designation as the species. The Guyandotte River cooperatively with the West Virginia critical habitat. Therefore, if the critical crayfish is historically known from six Department of Environmental Protection habitat is finalized as proposed, a connected stream systems within the and the coal industry to develop Federal action involving these lands Upper Guyandotte River basin (its protection and enhancement plans for would not trigger section 7 consultation geographical range); however, at the coal mining permits that may affect under the Act with respect to critical time of listing, the species was limited crayfish streams and the Hatfield McCoy habitat and the requirement of no to two isolated subunits in Pinnacle Trail system and the Federal Highway adverse modification unless the specific Creek and Clear Fork. In our review, we Administration to avoid and minimize action would affect the physical or

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5078 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

biological features in the adjacent River crayfish sites possess the required having a record of the species, is within critical habitat. physical and biological features, at least its historical range and provides Under §§ 424.12(b)(1) and (2) of the to some minimal degree, for these connectivity between occupied and implementing regulations, the Service species to survive, and because these unoccupied subunits. These unoccupied determines the appropriate scale for physical and biological features are subunits provide for increased designating critical habitat. This is likely representative of stream redundancy, resiliency, and further clarified in the final rule titled, conditions beyond any single survey representation of the Guyandotte River ‘‘Implementing Changes to the location, we conclude that Big Sandy crayfish. We propose specific critical Regulations for Designating Critical and Guyandotte River crayfish likely habitat unit/subunit boundaries based Habitat’’ (81 FR 7414; February 11, occupy, or otherwise rely upon, stream on the following general criteria: 2016; see Discussion of Changes to Part areas beyond any single occurrence (1) We delineated areas within the 424 in that rule): The Service ‘‘cannot location. historical range of each species that had and need not make determinations at an (3) Studies of other crayfish species positive survey data between 2006 and infinitely fine scale.’’ Thus, the Service suggest that adult and larger juvenile 2016 (the time of listing). For the need not determine that each square Big Sandy and Guyandotte River Guyandotte River crayfish, we also inch, square yard, acre, or even square crayfish likely move both upstream and delineated three stream segments as mile independently meets the definition downstream in response to changes in unoccupied critical habitat. of ‘‘critical habitat.’’ In making its environmental conditions or local (2) Upstream termini of proposed determination on the appropriate scale crayfish demographics, or for other critical habitat units/subunits are for designating critical habitat, the behavioral or physiological reasons located at the confluence of the primary Service may consider, among other (Momot 1966, pp. 158–159; Kerby et al. stream and a smaller named tributary things, the life history of the species, the 2005, p. 407). The evidence also stream (usually a second-order stream). scales at which data are available, and indicates that some individuals, These termini are generally within biological or geophysical boundaries especially newly independent juveniles, about 5 skm (3.1 smi) upstream of a (such as watersheds). For the Big Sandy may be passively dispersed to known crayfish occurrence record. The and the Guyandotte River crayfishes, we downstream locations by swiftly downstream termini are usually located propose that streams or stream segments flowing water (Loughman 2019). at the confluence of the primary stream (as opposed to individual occurrence Therefore, within the greater and the next larger receiving stream or locations) are the appropriate units for geographical ranges of the Big Sandy river. In some instances, dams or designating critical habitat. We base this crayfish and Guyandotte River crayfish reservoirs are used to demark critical on the following factors: (i.e., the upper Big Sandy River basin habitat units/subunits. (1) The regional geology and stream and the Upper Guyandotte River basin, (3) We included intervening stream morphology in the upper Big Sandy and respectively), the general morphology segments between occurrence locations Upper Guyandotte River basins lead to and connectedness of the streams and unless there are data suggesting the a general abundance of slab boulders the life history of these species lead us physical and biological features and/or cobble in most streams, although to reasonably conclude that both species required by the species are absent in the in some areas this habitat is sparse or likely occupy, transit through, or intervening segment. occurs as isolated boulder clusters. otherwise rely upon stream reaches (4) We describe the proposed critical Furthermore, while continuous crayfish beyond any known occurrence location. habitat units/subunits by their upstream survey data do not exist (i.e., not every We acknowledge that some areas along and downstream coordinates (i.e., reach of every stream has been a stream segment proposed as critical latitude and longitude) and geographic surveyed), more intensive crayfish habitat may not contain all of the landmarks (e.g., confluence of named surveys in portions of the Russell Fork physical and biological features streams and/or a town or population watershed and in Clear Fork and required by either species, either center). Pinnacle Creek in the Upper Guyandotte naturally or as a result of habitat Within these stream segments, basin indicate that the Big Sandy and modification, but based on the proposed critical habitat includes the Guyandotte River crayfishes may occur considerations discussed above, we stream channel within the ordinary high throughout stream reaches where the conclude that streams or stream water mark. As defined at 33 CFR required physical and biological segments are appropriate units of scale 329.11, the ‘‘ordinary high water mark’’ features (e.g., riffles and runs with for describing critical habitat for these on nontidal rivers is the line on the unembedded slab boulders or species. shore established by the fluctuations of unembedded boulder clusters, adequate In summary, we propose to designate water and indicated by physical water quality, and connectivity) are as critical habitat streams and stream characteristics such as a clear, natural present. segments up to the ordinary high water line impressed on the bank; shelving; (2) Streams are dynamic, linear mark that were occupied at the time of changes in the character of soil; systems, and local water quality listing and contain one or more of the destruction of terrestrial vegetation; the parameters (e.g., dissolved oxygen, physical and biological features to presence of litter and debris; or other temperature, pH) can vary temporally support the life-history processes appropriate means that consider the and are largely reliant on upstream essential to the conservation of the Big characteristics of the surrounding areas. conditions (barring known point or non- Sandy crayfish and the Guyandotte For the purposes of analyzing the point source discharges or other factors River crayfish. Additionally, for the potential economic effects of proposed that affect water quality more locally). Guyandotte River crayfish, we propose critical habitat designation for the Big Likewise, the various stream to designate three subunits outside the Sandy and Guyandotte River crayfishes, microhabitats (e.g., riffles, runs, pools) geographical range of that species the critical habitat units/subunits are with attendant fauna do not generally occupied at the time of listing; however, determined to be in either private, occur in isolation, but form a these subunits are within the larger Federal, or State ownership. In continuous gradient along the stream occupied watershed. Two of these Kentucky, Virginia, and West Virginia, continuum. Because the known subunits have historical records of the jurisdiction over the water itself is occupied Big Sandy and Guyandotte species, and one subunit, while not maintained by the State or

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5079

Commonwealth; however, ownership of Proposed Critical Habitat Designation range and include core population areas the stream bottom may vary depending in the Russell Fork watershed in on specific State law or legal For the Big Sandy crayfish, we Virginia and the upper Tug Fork interpretation (Energy & Mineral Law propose to designate approximately 582 watershed (e.g., Dry Fork) in West Institute 2011, pp. 409–427; Virginia skm (362 smi) in 4 units (including 19 Virginia, as well as other peripheral Code at section 62.1–44.3; West Virginia subunits) in Kentucky, Virginia, and populations in Kentucky, Virginia, and Department of Environmental Protection West Virginia as critical habitat (see West Virginia. We determined that there 2013, section C). For the purposes of our table 1, below). These streams or stream is sufficient area for the conservation of segments are considered occupied at the economic analysis, we describe the Big Sandy crayfish within these time of listing and represent the entire ownership of proposed critical habitat occupied units, and we therefore do not known range of the species and all units/subunits based on the propose to designate any unoccupied extant populations. Based on our identification of the adjacent riparian critical habitat for the species. The review, we conclude that the units proposed units constitute our best landowner(s) (i.e., private, Federal, or occupied by the Big Sandy crayfish at assessment of areas that meet the State entity). the time of listing (described below) are definition of critical habitat for the Big representative of the species’ historical Sandy crayfish. TABLE 1—PROPOSED CRITICAL HABITAT UNITS AND SUBUNITS FOR THE BIG SANDY CRAYFISH

Stream length Unit/watershed Subunit River/stream State County(ies) Occupied at listing skm smi

Unit 1: Upper Levisa Fork ...... Dismal Creek ...... VA Buchanan ...... Yes ...... 29.2 18.1 Unit 2: Russell Fork ...... a Russell Fork ...... KY/VA Buchanan, Dickenson, Pike ..... Yes ...... 83.8 52.1 b Hurricane Creek ...... VA Buchanan ...... Yes ...... 5.9 3.7 c Indian Creek ...... VA Buchanan, Dickenson ...... Yes ...... 7.4 4.6 d Fryingpan Creek ...... VA Dickenson ...... Yes ...... 4.6 2.9 e Lick Creek ...... VA Dickenson ...... Yes ...... 16.2 10.1 f Russell Prater Creek ...... VA Buchanan, Dickenson ...... Yes ...... 8.4 5.2 g McClure River ...... VA Dickenson ...... Yes ...... 35.6 22.1 Open Fork ...... VA Dickenson ...... Yes ...... 4.9 3.0 h Elkhorn Creek ...... KY Pike ...... Yes ...... 8.5 5.3 i Cranes Nest River ...... VA Dickenson, Wise ...... Yes ...... 24.6 15.3 Birchfield Creek ...... VA Wise ...... Yes ...... 6.9 4.3 j Pound River ...... VA Dickenson, Wise ...... Yes ...... 28.5 17.7 Unit 3: Lower Levisa Fork ...... a Levisa Fork (upstream) ...... KY Pike ...... Yes ...... 15.9 9.9 Levisa Fork (downstream) ...... KY Floyd, Johnson ...... Yes ...... 17.5 10.9 b Shelby Creek ...... KY Pike ...... Yes ...... 32.2 20.0 Long Fork ...... KY Pike ...... Yes ...... 12.9 8.0 Unit 4: Tug Fork ...... a Tug Fork (upstream) ...... KY/VA/WV Buchanan, McDowell, Mingo, Yes ...... 106.1 65.9 Wayne, Pike. Tug Fork (downstream) ...... KY/WV Martin, Wayne ...... Yes ...... 11.7 7.3 b Dry Fork ...... WV McDowell...... Yes ...... 45.2 28.1 Bradshaw Creek ...... WV McDowell ...... Yes ...... 4.6 2.9 c Panther Creek ...... WV McDowell...... Yes ...... 10.7 6.6 d Knox Creek ...... KY/VA Buchanan, Pike ...... Yes ...... 16.6 10.3 e Peter Creek ...... KY Pike ...... Yes ...... 10.1 6.3 f Blackberry Creek ...... KY Pike ...... Yes ...... 9.1 5.7 g Pigeon Creek ...... WV Mingo...... Yes ...... 14.0 8.7 Laurel Fork ...... WV Mingo ...... Yes ...... 11.1 6.9

Total: ...... 582 362

Table 2 identifies the ownership of Big Sandy crayfish proposed critical lands adjacent to the entirely aquatic habitat.

TABLE 2—LAND OWNERSHIP ADJACENT TO PROPOSED CRITICAL HABITAT UNITS FOR THE BIG SANDY CRAYFISH

Federal State/local Private Total Critical habitat unit skm smi skm smi skm smi skm smi

Unit 1: Upper Levisa Fork ...... 0 0 0 0 29 18 29 18 Unit 2: Russell Fork ...... 23 14 11 7 201 125 235 146 Unit 3: Lower Levisa Fork ...... 0 0 0 0 79 49 79 49 Unit 4: Tug Fork ...... 0 0 11 7 228 142 239 149

Grand Total BSC ...... 23 14 22 14 537 334 582 362

For the Guyandotte River crayfish, we critical habitat. Approximately 67 skm populations (see table 3, below). propose to designate approximately 135 (41 smi) in two subunits are considered However, we determined that these two skm (84 smi) in one unit, consisting of occupied by the species at the time of subunits do not provide sufficient five subunits, in West Virginia as listing and represent all known extant resiliency, representation, or

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5080 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

redundancy to ensure the conservation smi) in three subunits as unoccupied assessment of areas that meet the of the species. Therefore, we propose to critical habitat (see table 3, below). The definition of critical habitat for the designate approximately 68 skm (42 proposed subunits constitute our best Guyandotte River crayfish. TABLE 3—PROPOSED CRITICAL HABITAT UNIT FOR THE GUYANDOTTE RIVER CRAYFISH

Stream length Unit/watershed Subunit River/stream State County(ies) Occupied at listing skm smi

Unit 1: Upper Guyandotte ...... a Pinnacle Creek ...... WV Wyoming ...... Yes ...... 28.6 17.8 b Clear Fork...... WV Wyoming ...... Yes ...... 24.9 15.5 Laurel Fork ...... WV Wyoming ...... Yes ...... 13.1 8.1 c Guyandotte River...... WV Wyoming ...... No ...... 35.8 22.2 d Indian Creek...... WV Wyoming ...... No ...... 4.2 2.6 e Huff Creek ...... WV Wyoming, Logan ...... No ...... 28.0 17.4

Total: ...... 135 84

Table 4 identifies the ownership of Guyandotte River crayfish proposed lands adjacent to the entirely aquatic critical habitat.

TABLE 4—LAND OWNERSHIP ADJACENT TO PROPOSED CRITICAL HABITAT UNITS FOR THE GUYANDOTTE RIVER CRAYFISH

Federal State/local Private Total Critical habitat unit skm smi skm smi skm smi skm smi

Unit 1: Occupied ...... 0 0 6 4 60 38 67 41 Unoccupied ...... 0 0 16 10 52 32 68 42

Grand Total GRC ...... 0 0 23 14 112 70 135 84

Below, we present brief descriptions of legacy and ongoing surface coal Subunit 2a: Russell Fork, Buchanan and of all units/subunits and reasons why mining throughout the watershed. The Dickenson Counties, Virginia, and Pike they meet the definition of critical narrow stream valley contains scattered County, Kentucky habitat for the Big Sandy and residences and small communities, Guyandotte River crayfishes. commercial facilities, occasional gas Subunit 2a includes approximately 83.8 skm (52.1 smi) of the Russell Fork Big Sandy Crayfish wells, and transportation infrastructure (i.e., roads and rail lines). There is a mainstem from the confluence of Unit 1: Dismal Creek, Buchanan County, large coal coke plant straddling Dismal Russell Fork and Ball Creek at Council, Virginia Creek at the confluence of Dismal Creek Virginia, downstream to the confluence and Levisa Fork. This unit is located of Russell Fork and Levisa Fork at This unit includes approximately 29.2 Levisa Junction, Kentucky. Recent almost entirely on private land, except stream kilometers (skm) (18.1 stream surveys of the Russell Fork indicated an for any small amount that is publicly miles (smi)) of Dismal Creek in the abundance of unembedded slab owned in the form of bridge crossings or Upper Levisa Fork watershed. The boulders, boulder clusters, isolated road easements. The Dismal Creek threats within this unit that may need boulders, and large cobbles, and live Big population of Big Sandy crayfish special management consideration Sandy crayfish have been captured at represents the species’ only include resource extraction (coal numerous locations within this subunit representation in the upper Levisa Fork mining, timber harvesting, and oil and (Thoma 2009b, p. 10; Loughman 2015a, watershed, which is physically isolated gas development); road construction p. 23). The Russell Fork watershed is from the rest of the Big Sandy basin by and maintenance (including unpaved mostly forested; however, USGS roads and trails); instream dredging or the Fishtrap Dam and Reservoir. The topographic maps and aerial imagery construction projects; and other sources Dismal Creek population appears to be (ESRI) provide evidence of legacy and of non-point source pollution. The relatively robust and contributes to the ongoing coal mining throughout the upper limit of this unit is the confluence representation and redundancy of the watershed. In the upper portion of the of Dismal Creek and Laurel Fork, and species. watershed, the narrow stream valley the downstream limit is the confluence Unit 2: Russell Fork contains scattered residences and roads, of Dismal Creek and Levisa Fork. Recent but human development increases surveys of Dismal Creek indicated an Unit 2 consists of the 10 subunits farther downstream in the form of small abundance of unembedded slab described below. The threats within this communities and towns, commercial boulders and boulder clusters, and live entire unit that may need special facilities, and transportation Big Sandy crayfish have been collected management consideration include infrastructure (i.e., roads and rail lines). in relatively high numbers from several resource extraction (coal mining, timber Approximately 12 skm (7.4 smi) of locations within this unit (Thoma harvesting, and oil and gas Subunit 2a is within the Jefferson 2009b, p. 10; Loughman 2015a, p. 26). development); road construction and National Forest and Breaks Interstate The Dismal Creek watershed is mostly maintenance (including unpaved roads Park. The remainder of the subunit is forested; however, U.S. Geological and trails); instream dredging or located almost entirely on private land, Survey (USGS) topographic maps and construction projects; and other sources except for any small amount that is aerial imagery (ESRI) provide evidence of non-point source pollution. publicly owned in the form of bridge

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5081

crossings or road easements. The Big small agricultural fields, and roads. This easements. This subunit contributes to Sandy crayfish population in Subunit 2a subunit is located almost entirely on the redundancy of the species. appears to be relatively robust and private land, except for any small Subunit 2f: Russell Prater Creek, provides important connectivity amount that is publicly owned in the Buchanan and Dickenson Counties, between crayfish populations in several form of bridge crossings or road Virginia tributary streams and rivers, easements. This subunit contributes to contributing to their resiliency. the redundancy of the species. This subunit includes approximately Additionally, some Big Sandy crayfish 8.4 skm (5.2 smi) of Russell Prater from Subunit 2a likely disperse to areas Subunit 2d: Fryingpan Creek, Dickenson Creek, a tributary to Russell Fork. This downstream in the Levisa Fork basin, County, Virginia subunit extends from the confluence of contributing to the species’ Subunit 2d includes approximately Russell Prater Creek and Greenbrier representation and redundancy. 4.6 skm (2.9 smi) of Fryingpan Creek, a Creek downstream to the confluence of tributary to Russell Fork. This subunit Russell Prater Creek and Russell Fork at Subunit 2b: Hurricane Creek, Buchanan Haysi, Virginia. Recent surveys of County, Virginia extends from the confluence of Fryingpan Creek and Priest Fork Russell Prater Creek indicate abundant Subunit 2b includes approximately downstream to the confluence of unembedded slab boulders, boulders, 5.9 skm (3.7 smi) of Hurricane Creek, a Fryingpan Creek and Russell Fork. and cobbles, with live Big Sandy tributary to Russell Fork. This subunit Recent surveys of Fryingpan Creek crayfish collected from two sites in the lower portion of the creek (Thoma extends from the confluence of indicate an abundance of isolated slab Hurricane Creek and Gilbert Branch 2009b, p. 10; Loughman 2015a, pp. 22– boulders and boulder clusters with low downstream to the confluence of 23). The USGS topographic maps and embeddedness, and live Big Sandy Hurricane Creek and Russell Fork at aerial imagery (ESRI) indicate the crayfish have been collected from the Davenport, Virginia. Recent surveys of Russell Prater watershed is mostly lower reach of Fryingpan Creek Hurricane Creek indicate an abundance forested; however, legacy coal mines (Loughman 2015a, pp. 24–25). The of unembedded slab boulders, boulders, and valley fills occur throughout the USGS topographic maps and aerial and cobbles, and live Big Sandy crayfish watershed. The narrow creek valley imagery (ESRI) indicate the watershed is have been collected from two locations contains scattered residences, mostly intact forest, with the exception in lower Hurricane Creek (ATS 2009, commercial facilities, small agricultural of oil or gas development on some entire; VDOT 2014, entire). The USGS fields, and roads. This subunit is located topographic maps and aerial imagery adjacent ridgelines and legacy coal almost entirely on private land, except (ESRI) indicate the Hurricane Creek mining in the upper portion of the for any small amount that is publicly watershed is relatively intact forest, watershed. The narrow creek valley owned in the form of bridge crossings or with the exception of ongoing oil or gas contains scattered residences, small road easements. This subunit development on the ridges to the north agricultural fields, and roads. This contributes to the redundancy of the and south of the creek and scattered subunit is located almost entirely on species. residences, small agricultural fields, and private land, except for any small Subunit 2g: McClure River and Creek roads in the narrow valley. This subunit amount that is publicly owned in the and Open Fork, Dickenson County, is located almost entirely on private form of bridge crossings or road Virginia land, except for any small amount that easements. This subunit contributes to is publicly owned in the form of bridge the redundancy of the species. Subunit 2g includes approximately crossings or road easements. This Subunit 2e: Lick Creek, Dickenson 35.6 skm (22.1 smi) of the McClure subunit contributes to the redundancy County, Virginia River and Creek, a major tributary to of the species. Russell Fork, and its tributary stream Subunit 2e includes approximately Open Fork (4.9 skm (3.0 smi)). The Subunit 2c: Indian Creek, Buchanan and 16.2 skm (10.1 smi) of Lick Creek, a McClure River and Creek section Dickenson Counties, Virginia tributary of Russell Fork. This subunit extends from the confluence of McClure This subunit includes approximately extends from the confluence of Lick Creek and Wakenva Branch downstream 7.4 skm (4.6 smi) of Indian Creek, a Creek and Cabin Fork near Aily, to the confluence of McClure River and tributary to Russell Fork. Subunit 2c Virginia, downstream to the confluence Russell Fork. Recent surveys of the extends from the confluence of Indian of Lick Creek and Russell Fork at McClure River indicated an often sandy Creek and Three Forks upstream of Birchfield, Virginia. Recent surveys of bottom with unembedded, isolated slab Duty, Virginia, to the confluence of Lick Creek indicate an abundance of boulders and boulder clusters, with live Indian Creek and Russell Fork below unembedded slab boulders and cobbles, Big Sandy crayfish collected at several Davenport, Virginia. Recent surveys of with live Big Sandy crayfish collected at locations (Thoma 2009b, p. 18; Indian Creek indicate an abundance of several locations (ATS 2012a, entire; Loughman 2015a, p. 22). The McClure slab boulders and boulders with low to ATS 2012b, entire). The USGS River valley contains scattered moderate embeddedness, and live Big topographic maps and aerial imagery residences, small communities, Sandy crayfish have been collected from (ESRI) indicate the watershed is mostly commercial mining-related facilities, several locations (ATS 2009, entire; ATS forested, with the exception of oil or gas small agricultural fields, roads, 2010, entire; Loughman 2015a, pp. 24– development on some adjacent railroads, and other infrastructure. The 25). The USGS topographic maps and ridgelines and legacy coal mining and riparian zone along much of the river aerial imagery (ESRI) indicate the lower timber harvesting sites at various appears to be relatively intact. portion of the Indian Creek watershed is locations within the watershed. The The Open Fork section of Subunit 2g mostly forested, with the exception of narrow creek valley contains scattered extends from the confluence of Middle oil or gas development on a ridgeline to residences, small agricultural fields, and Fork Open Fork and Coon Branch the west of the creek. The upper portion roads. This subunit is located almost downstream to the confluence of Open of the watershed is dominated by a large entirely on private land, except for any Fork and McClure Creek at Nora, surface coal mine. The narrow creek small amount that is publicly owned in Virginia. Recent surveys of Open Fork valley contains scattered residences, the form of bridge crossings or road indicated unembedded, isolated slab

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5082 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

boulders and boulder clusters, with live and approximately 6.9 skm (4.3 smi) of Jerry Branch. Recent surveys indicate Big Sandy crayfish collected at one Birchfield Creek, a tributary to Cranes abundant unembedded slab boulders, location (Loughman 2015a, p. 22). The Nest River. The Cranes Nest River boulders, and boulder clusters in the narrow valley contains scattered section of Subunit 2i extends from the riffle and run sections, and live Big residences, some small agricultural confluence of Cranes Nest River and Sandy crayfish have been collected from fields, roads, and railroads. Birchfield Creek downstream to the multiple locations (Thoma 2009b, The USGS topographic maps and confluence of Cranes Nest River and entire; VHB, Inc. 2011, entire; aerial imagery (ESRI) indicate the Lick Branch. Recent surveys of the Loughman 2015a, p. 21). The USGS McClure River watershed is mostly Cranes Nest River indicated abundant topographic maps and aerial imagery forested; however, legacy and active unembedded slab boulders, boulder (ESRI) indicate the Pound River coal mining occurs in the middle and clusters, isolated boulders, and coarse watershed is mostly forested; however, upper portions of the watershed. woody debris, and live Big Sandy significant legacy and recent coal Natural gas development is also crayfish have been collected at multiple mining is evident, especially to the apparent on many of the adjacent ridges, sites (Thoma 2009b, p. 10; VDOT 2014b, south of the river. Aerial imagery also and recent or ongoing logging entire; VDOT 2015, entire; Loughman indicates recent or ongoing logging operations continue at several locations 2015a, pp. 21–22). The riparian zone of operations at several locations in the in the watershed. This subunit is this section is largely intact; however, watershed. Much of the immediate located almost entirely on private land, human development, in the form of riparian zone is intact forest, with except for any small amount that is residences, small communities, small occasional human development in the publicly owned in the form of bridge agricultural fields, roads, railroads, and form of small communities, residences, crossings or road easements. This other infrastructure, occurs along some small agricultural fields, commercial subunit contributes to the redundancy segments of Cranes Nest River. development, and roads and other of the species. The Birchfield Creek section of this infrastructure adjacent to the river. subunit extends from the confluence of Subunit 2h: Elkhorn Creek, Pike County, Approximately 11.4 skm (7.1 smi) of Birchfield Creek and Dotson Creek Kentucky Subunit 2j is within the John W. downstream to the confluence of Flannagan Recreation Area. The Subunit 2h includes approximately Birchfield Creek and Cranes Nest River. remainder of the subunit is located 8.5 skm (5.3 smi) of Elkhorn Creek, a Recent surveys resulted in observations almost entirely on private land, except tributary to Russell Fork. This subunit of live Big Sandy crayfish from a site in for any small amount that is publicly extends from the confluence of Elkhorn the lower portion of Birchfield Creek. owned in the form of bridge crossings or Creek and Mountain Branch Human development, in the form of road easements. The Big Sandy crayfish downstream to the confluence of residences, roads, and other population in Subunit 2j appears to be Elkhorn Creek and Russell Fork at infrastructure, occurs in the riparian Elkhorn City, Kentucky. Recent surveys relatively robust and contributes to the zone along Birchfield Creek. redundancy of the species. indicated unembedded slab boulders The USGS topographic maps and and boulders in Elkhorn Creek with aerial imagery (ESRI) indicate the Unit 3: Lower Levisa Fork ‘‘extensive bedrock glides’’ in the lower Cranes Nest River watershed is mostly reaches of the creek. Live Big Sandy forested; however, significant legacy Unit 3 consists of the two subunits crayfish were collected from under slab and active coal mining is evident described below. The threats within this boulders in lower Elkhorn Creek throughout the watershed. Natural gas entire unit that may need special (Loughman 2015a, pp. 18–19). The development is ongoing on some of the management consideration include USGS topographic maps and aerial ridges adjacent to the Cranes Nest River. resource extraction (coal mining, timber imagery (ESRI) indicate the watershed is Approximately 10.3 skm (6.4 smi) of harvesting, and oil and gas mostly forested; however, significant Subunit 2i is within the John W. development); road construction and legacy and active coal mining and other Flannagan Recreation Area. The maintenance (including unpaved roads mining and quarrying occurs in the remainder of the subunit is located and trails); instream dredging or watershed. Human development, in the almost entirely on private land, except construction projects; and other sources form of small communities, residences, for any small amount that is publicly of non-point source pollution. small agricultural fields, and owned in the form of bridge crossings or Subunit 3a: Levisa Fork, Pike, Floyd, commercial and industrial facilities, as road easements. Since 1964, this and Johnson Counties, Kentucky well as roads, railroads, and other subunit has been physically isolated infrastructure, occurs almost from the Russell Fork by the John W. Subunit 3a includes approximately continually in the riparian zone along Flannagan Dam and Reservoir. The Big 33.4 skm (20.8 smi) of the mainstem Elkhorn Creek. The watershed to the Sandy crayfish population in Subunit 2i Levisa Fork in two disjunct segments. south of Elkhorn Creek is a unit of the appears to be relatively robust and The upstream segment includes Jefferson National Forest; however, contributes to the redundancy of the approximately 15.9 skm (9.9 smi) of the Subunit 2h is located almost entirely on species. Levisa Fork from its confluence with the private land, except for any small Russell Fork at Levisa Junction, Subunit 2j: Pound River, Dickenson and amount that is publicly owned in the Kentucky, downstream to the Wise Counties, Virginia form of bridge crossings or road confluence of Levisa Fork and Island easements. This subunit contributes to Subunit 2j includes approximately Creek at Pikeville, Kentucky. Surveys the redundancy of the species. 28.5 skm (17.7 smi) of the Pound River, indicate that suitable unembedded a major tributary to Russell Fork that boulder habitat is present in the Levisa Subunit 2i: Cranes Nest River and has been physically isolated from that Fork, and live Big Sandy crayfish have Birchfield Creek, Dickenson and Wise river since 1964 by the John W. been recently collected both upstream of Counties, Virginia Flannagan Dam and Reservoir. This Subunit 3a in the Russell Fork and at This subunit includes approximately subunit extends from the confluence of one location near Pikeville, Kentucky 24.6 skm (15.3 smi) of Cranes Nest Pound River and Bad Creek downstream (Thoma 2010, pp. 5–6; Loughman River, a major tributary to Russell Fork, to the confluence of Pound River and 2015a, pp. 5–10).

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5083

The downstream segment of Subunit (Thoma 2010, pp. 5–6; Loughman Bull Creek downstream to the 3a includes approximately 17.5 skm 2015a, p. 18). The USGS topographic confluence of Tug Fork and Little Elk (10.9 smi) of the Levisa Fork near maps and aerial imagery (ESRI) indicate Creek. Auxier, Kentucky, from the confluence the Shelby Creek watershed is mostly The USGS topographic maps and of Levisa Fork and Abbott Creek forested; however, several large surface aerial imagery (ESRI) indicate the downstream to the confluence of Levisa coal mines are evident west of the creek. Subunit 4a watershed is mostly forested; Fork and Miller Creek. Recent surveys The Long Fork watershed is also mostly however, there is evidence of legacy and indicate isolated boulder clusters in this forested; however, legacy and active ongoing coal mining throughout the segment, with live Big Sandy crayfish coal mining is evident in the upper subunit. The riparian zone in the upper collected from two locations (Thoma portion of this watershed. Human segment of Subunit 4a is relatively 2009b, entire; Loughman 2014, pp. 12– development, in the form of towns, intact, with human development 13). small communities, residences, small consisting primarily of road and railroad The USGS topographic maps and agricultural fields, commercial and corridors. In the lower segment of the aerial imagery (ESRI) indicate the industrial development, roads, subunit, towns, small communities, Subunit 3a watershed is mostly forested; railroads, and other infrastructure, residences, small agricultural fields, however, legacy and ongoing coal occurs nearly continuously in the commercial and industrial mining is evident in several locations. riparian zone of Shelby Creek. In the development, roads, railroads, and other Human development, in the form of riparian zone of Long Fork, residences, infrastructure become prevalent. towns, small communities, residences, small agricultural fields, roads, and Subunit 4a is located almost entirely on small agricultural fields, commercial other infrastructure occur nearly private land, except for any small and industrial development, roads, continuously. Subunit 3b is located amount that is publicly owned in the railroads, and other infrastructure, almost entirely on private land, except form of bridge crossings or road occurs nearly continuously in the for any small amount that is publicly easements. Because of the diversity of riparian zone of these segments of the owned in the form of bridge crossings or natural habitat characteristics (e.g., size, Levisa Fork. Subunit 3a is located road easements. This subunit maintains gradient, bottom substrate) in this almost entirely on private land, except the most robust population of Big Sandy subunit, it contributes to Big Sandy for any small amount that is publicly crayfish in the lower Levisa Fork (as crayfish representation and redundancy. owned in the form of bridge crossings or indicated by recent survey capture rates) This subunit provides habitat for the Big road easements. The upper segment of and increases the representation and Sandy crayfish, as well as providing the subunit provides connectivity redundancy of the species. potential connectivity between the Dry between the Russell Fork and Shelby Fork, Panther Creek, Knox Creek, Peter Creek populations (discussed below), Unit 4: Tug Fork Creek, Blackberry Creek, and Pigeon and the lower segment supports the Unit 4 consists of the seven subunits Creek populations (discussed below). most downstream population of Big described below. The threats within this Subunit 4b: Dry Fork and Bradshaw Sandy crayfish in the Levisa Fork basin. entire unit that may need special Creek, McDowell County, West Virginia Because the natural habitat management consideration include characteristics (e.g., size, gradient, resource extraction (coal mining, timber This subunit includes approximately bottom substrate) in the Levisa Fork harvesting, and oil and gas 45.2 skm (28.1 smi) of Dry Fork, a large differ from those in the upper development); road construction and tributary to the Tug Fork, and tributaries, this subunit increases Big maintenance (including unpaved roads approximately 4.6 skm (2.9 smi) of Sandy crayfish representation as well as and trails); instream dredging or Bradshaw Creek, a tributary to Dry Fork. the species’ redundancy. construction projects; and other sources The Dry Fork portion of Subunit 4b of non-point source pollution. extends from the confluence of Dry Fork Subunit 3b: Shelby Creek and Long and Jacobs Fork downstream to the Fork, Pike County, Kentucky Subunit 4a: Tug Fork, McDowell, confluence of Dry Fork and Tug Fork at This subunit includes approximately Mingo, and Wayne Counties, West Iaeger, West Virginia. The Bradshaw 32.2 skm (20.0 smi) of Shelby Creek, a Virginia; Buchanan County, Virginia; Creek portion extends from the tributary to Levisa Fork, and and Pike County, Kentucky confluence of Bradshaw Creek and Hite approximately 12.9 skm (8.0 smi) of Subunit 4a includes approximately Fork at Jolo, West Virginia, downstream Long Fork, a tributary to Shelby Creek. 117.8 skm (73.2 smi) of the Tug Fork to the confluence of Bradshaw Creek The Shelby Creek portion of this mainstem in two disjunct segments. The and Dry Fork at Bradshaw, West subunit extends from the confluence of upstream segment includes Virginia. Recent surveys indicate Shelby Creek and Burk Branch approximately 106.1 skm (65.9 smi) of abundant unembedded slab boulders, downstream to the confluence of Shelby the Tug Fork from the confluence of Tug boulders, boulder clusters, and large Creek and Levisa Fork at Shelbiana, Fork and Elkhorn Creek at Welch, West cobbles, with live Big Sandy crayfish Kentucky. The Long Fork portion of Virginia, downstream to the confluence collected at numerous locations within Subunit 3b extends from the confluence of Tug Fork and Blackberry Creek in this subunit (Loughman 2013, pp. 7–8; of Right Fork Long Fork and Left Fork Pike County, Kentucky. Surveys Loughman 2014, pp. 10–11; Loughman Long Fork downstream to the indicate that suitable unembedded 2015a, pp. 14–15). The USGS confluence of Long Fork and Shelby boulder habitat is sparse and topographic maps and aerial imagery Creek at Virgie, Kentucky. Recent discontinuous in this segment of the (ESRI) indicate the Subunit 4b surveys of this subunit indicated an Tug Fork; however, live Big Sandy watershed is mostly forested; however, abundance of unembedded slab crayfish have been collected at four legacy coal mining is evident boulders, boulder clusters, and locations within this subunit throughout, and natural gas anthropogenic structures such as (Loughman 2015a, p. 16). The development is apparent in the upper concrete slabs and blocks in Shelby downstream segment includes portions of the watershed. The riparian Creek and Long Fork, and live Big approximately 11.7 skm (7.3 smi) of the zone in the upper portion of Dry Fork Sandy crayfish have been collected at Tug Fork near Crum, West Virginia, is relatively intact, with human multiple locations within this subunit from the confluence of Tug Fork and development consisting primarily of

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5084 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

road and railroad corridors. In the (Thoma 2010, p. 5; Loughman 2015a, p. topographic maps and aerial imagery middle and lower portions of Dry Fork, 12). The USGS topographic maps and (ESRI) indicate the Blackberry Creek small communities, residences, small aerial imagery (ESRI) indicate the Knox watershed is mostly forested, with agricultural fields, commercial and Creek watershed is mostly forested, with evidence of significant legacy, recent, industrial development, roads, evidence of significant legacy, recent, and ongoing coal mining throughout the railroads, and other infrastructure and ongoing coal mining in the watershed. The narrow riparian zone in become prevalent. The Bradshaw Creek watershed. In the upper portion of this Subunit 4f is dominated by human riparian zone is dominated by subunit, human development in the development in the form of small residences, small agricultural fields, form of small communities, residences, communities, residences, roads, and roads, and other infrastructure. The roads, railroads, and other infrastructure other infrastructure. This subunit is middle portion of Dry Fork passes is common. In the middle and lower located almost entirely on private land, through the Berwind Lake State Wildlife sections, the riparian zone is relatively except for any small amount that is Management Area; otherwise, Subunit intact, except for scattered residences publicly owned in the form of bridge 4b is located almost entirely on private and a road and railroad line. Subunit 4d crossings or road easements. Subunit 4f land, except for any small amount that is located almost entirely on private contributes to the redundancy of the is publicly owned in the form of bridge land, except for any small amount that species. crossings or road easements. This is publicly owned in the form of bridge Subunit 4g: Pigeon Creek and Laurel subunit appears to maintain a relatively crossings or road easements. This Creek, Mingo County, West Virginia robust population of the Big Sandy subunit contributes to the redundancy crayfish and likely serves as a source of the species. Subunit 4g includes approximately population for areas downstream in the 14.0 skm (8.7 smi) of Pigeon Creek, a Subunit 4e: Peter Creek, Pike County, Tug Fork basin. This subunit tributary to Tug Fork, and Kentucky contributes to the redundancy of the approximately 11.1 skm (6.9 smi) of species. Subunit 4e includes approximately Laurel Fork, a tributary to Pigeon Creek. 10.1 skm (6.3 smi) of Peter Creek, a The Pigeon Creek portion of this subunit Subunit 4c: Panther Creek, McDowell tributary to Tug Fork. This subunit extends from the confluence of Pigeon County, West Virginia extends from the confluence of Left Fork Creek and Trace Fork downstream to the This subunit includes approximately Peter Creek and Right Fork Peter Creek confluence of Pigeon Creek and Tug 10.7 skm (6.6 smi) of Panther Creek, a at Phelps, Kentucky, downstream to the Fork. The Laurel Creek portion extends tributary to Tug Fork. Subunit 4c confluence of Peter Creek and Tug Fork from the confluence of Laurel Fork and extends from the confluence of Panther at Freeburn, Kentucky. Recent surveys Lick Branch 0.6 skm (0.4 smi) Creek and George Branch downstream indicate moderate sedimentation issues downstream of the Laurel Lake dam to to the confluence of Panther Creek and in Peter Creek, but some unembedded the confluence of Laurel Fork and Tug Fork at Panther, West Virginia. Big bottom substrates continue to be present Pigeon Creek at Lenore, West Virginia. Sandy crayfish have been collected at (Loughman 2015a, p. 12). Big Sandy Recent surveys indicate the bottom one site in the lower portion of this crayfish have been collected at two sites substrates in Pigeon Creek consist of subunit. The USGS topographic maps in the lower portion of this subunit. The fine sediments, sand, and occasional and aerial imagery (ESRI) indicate the USGS topographic maps and aerial boulders, with Big Sandy crayfish majority of the Panther Creek watershed imagery (ESRI) indicate the Peter Creek collected at a single site (Loughman is intact forest with evidence of only watershed is mostly forested, with 2015a, p. 11). Laurel Fork maintains a limited legacy coal mining. The riparian evidence of significant legacy, recent, bottom substrate of sand, gravel, cobble, zone of this narrow valley is largely and ongoing coal mining throughout the and occasional slab boulders, with Big intact, containing a road and occasional watershed. The riparian zone in Subunit Sandy crayfish collected at two sites residences (mostly in the lower portion 4e is dominated by human development (Loughman 2015a, pp. 10–11). The of the subunit). Approximately 6.1 skm in the form of small communities, USGS topographic maps and aerial (3.8 smi) of Subunit 4c is located within residences, roads, railroads, and other imagery (ESRI) indicate the Pigeon the Panther State Forest, and the infrastructure. This subunit is located Creek watershed is mostly forested, with remainder is located on private land, almost entirely on private land, except evidence of significant legacy, recent, except for any small amount that is for any small amount that is publicly and ongoing coal mining and valley fills publicly owned in the form of bridge owned in the form of bridge crossings or in the upper portion of the watershed. crossings or road easements. This road easements. Subunit 4e contributes The Pigeon Creek riparian zone is subunit contributes to the redundancy to the redundancy of the species. dominated by human development in of the species. the form of small communities, Subunit 4f: Blackberry Creek, Pike residences, roads, railroads, and other Subunit 4d: Knox Creek, Buchanan County, Kentucky infrastructure. The majority of the County, Virginia, and Pike County, Subunit 4f includes approximately 9.1 Laurel Creek watershed is within the Kentucky skm (5.7 smi) of Blackberry Creek, a Laurel Creek State Wildlife Management Subunit 4d includes approximately tributary to Tug Fork. This subunit Area and is mostly intact forest; 16.6 skm (10.3 smi) of Knox Creek, a extends from the confluence of however, the narrow riparian zone is tributary to Tug Fork. This subunit Blackberry Creek and Bluespring Branch dominated by human development in extends from the confluence of Knox downstream to the confluence of the form of residences, roads, and other Creek and Cedar Branch downstream to Blackberry Creek and Tug Fork. Recent infrastructure. Subunit 4g is located the confluence of Knox Creek and Tug surveys indicate moderate almost entirely on private land, except Fork in Pike County, Kentucky. Recent sedimentation in Blackberry Creek, but for any small amount that is publicly surveys indicated abundant some unembedded bottom substrates owned in the form of bridge crossings or unembedded slab boulders, boulders, continue to be present (Loughman road easements. With the exception of and boulder clusters, with live Big 2015a, p. 12). Big Sandy crayfish have the Big Sandy crayfish occurrence in the Sandy crayfish collected at four sites in been collected at two sites in the lower Tug Fork mainstem near Crum, West the Kentucky portion of the creek portion of this subunit. The USGS Virginia, Subunit 4g supports the most

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5085

downstream Big Sandy crayfish Subunit 1b: Clear Fork and Laurel Fork, railroads, and other infrastructure. population in the Tug Fork watershed. Wyoming County, West Virginia Approximately 15.0 skm (9.3 smi) of Therefore, this subunit contributes to Subunit 1b includes approximately Subunit 1c is located within the R.D. the representation and redundancy of 38.0 skm (23.6 smi) of Clear Fork and Bailey Lake State Wildlife Management the species. its primary tributary Laurel Fork. This Area, and the remainder is located almost entirely on private land, except Guyandotte River Crayfish subunit extends from the confluence of Laurel Creek and Acord Branch for any small amount that is publicly Unit 1: Upper Guyandotte downstream to the confluence of Clear owned in the form of bridge crossings or Fork and the Guyandotte River. The road easements. Although it is considered unoccupied, We propose to designate a single USGS topographic maps and aerial this subunit contains at least two of the critical habitat unit (Unit 1), consisting imagery (ESRI) indicate the Subunit 1b physical or biological features (PBFs) of five subunits, for the Guyandotte watershed is mostly forested; however, River crayfish. The threats within this essential to the conservation of the coal mining activity occurs throughout Guyandotte River crayfish, and we are entire unit that may need special the subunit. Human development is management consideration include reasonably certain that it will contribute prevalent in the riparian zone in this to the conservation of the species. This resource extraction (coal mining, timber subunit and consists of communities, harvesting, and oil and gas subunit maintains ‘‘optimal’’ residences, commercial facilities, Guyandotte River crayfish habitat, development); road construction and agricultural fields, roads, railroads, and maintenance (including unpaved roads including abundant unembedded slab other infrastructure. Approximately 6.2 boulders, boulders, boulder clusters, and trails); instream dredging or skm (3.9 smi) of Subunit 1b is within construction projects; and other sources and cobble (PBF 1) (Loughman 2015b, the R.D. Bailey Lake State Wildlife pp. 22–24). Along with providing of non-point source pollution. In Management Area, and the remainder is potential habitat for the Guyandotte addition, subunits 1a and 1e may need located almost entirely on private land, River crayfish and thereby increasing its special management consideration from except for any small amount that is redundancy, this subunit provides the threat of ORV use. The subunits are publicly owned in the form of bridge connectivity (PBF 6) between the extant described below. crossings or road easements. Pinnacle Creek and Clear Fork Surveys confirmed the Guyandotte Subunit 1a: Pinnacle Creek, Wyoming populations and provides connectivity River crayfish at six sites within this County, West Virginia between these two populations and the subunit, with the stream bottom proposed unoccupied critical habitat This subunit includes approximately substrate generally characterized as subunit at Indian Creek (Subunit 1d, 28.6 skm (17.8 smi) of Pinnacle Creek, sand with abundant unembedded slab described below). a tributary to the Guyandotte River. boulders, boulders, or boulder clusters Subunit 1d: Indian Creek, Wyoming Subunit 1a extends from the confluence (Loughman 2015b, pp. 9–10). Of the two County, West Virginia of Pinnacle Creek and Beartown Fork remaining Guyandotte River crayfish downstream to the confluence of populations, Subunit 1b contains the Because we have determined Pinnacle Creek and the Guyandotte most robust population and provides occupied areas are not adequate for the River at Pineville, West Virginia. The critical representation and redundancy conservation of the Guyandotte River USGS topographic maps and aerial for the species. crayfish, we have evaluated whether any unoccupied areas are essential for imagery (ESRI) indicate the Pinnacle Subunit 1c: Guyandotte River, Wyoming the conservation of the species and Creek watershed is mostly forested; County, West Virginia however, legacy, recent, and ongoing identified this area as essential for the coal mining is evident in the watershed. Because we have determined conservation of the species. Subunit 1d occupied areas are not adequate for the The riparian zone in this subunit is includes approximately 4.2 skm (2.6 conservation of the Guyandotte River mostly intact, with human development smi) of Indian Creek, a tributary to the crayfish, we have evaluated whether consisting of unimproved roads or trails. Guyandotte River. This subunit extends any unoccupied areas are essential for In the lower portion of the subunit, from the confluence of Indian Creek and the conservation of the species and some commercial and coal-related Brier Creek at Fanrock, West Virginia, identified this area as essential for the facilities are adjacent to the creek. This downstream to the confluence of Indian conservation of the species. Subunit 1c subunit is located almost entirely on Creek and the Guyandotte River. The includes approximately 35.8 skm (22.2 USGS topographic maps and aerial private land, except for any small smi) of the Guyandotte River from its imagery (ESRI) indicate the Subunit 1d amount that is publicly owned in the confluence with Pinnacle Creek at watershed is mostly intact forest, with form of bridge crossings or road Pineville, West Virginia, downstream to evidence of legacy coal mining and easements. its confluence with Clear Fork. The natural gas drilling on the adjacent Recent surveys of Pinnacle Creek USGS topographic maps and aerial slopes. Residences, roads, and other confirmed the presence of the imagery (ESRI) indicate the Subunit 1c infrastructure occur in the narrow Guyandotte River crayfish at five sites in watershed is mostly forested; however, riparian zone. Approximately 1.3 skm the upper portion of the creek, with the some legacy and ongoing coal mining is (0.8 smi) of Subunit 1d is located within bottom substrate being characterized as evident along with natural gas the R.D. Bailey Lake State Wildlife gravel, with unembedded cobbles, small development on adjacent ridges. In the Management Area, and the remainder is boulders, and isolated slab boulders. lower portion of the subunit, the located almost entirely on private land, Substrate embeddedness was reported riparian zone is largely intact, with the except for any small amount that is to increase markedly in downstream exception of road and railroad rights-of- publicly owned in the form of bridge reaches (Loughman 2015b, p. 11). As way. In the middle and upper portions crossings or road easements. one of only two known Guyandotte of this subunit, human development in Although it is considered unoccupied, River crayfish populations, this subunit the riparian zone increases and consists this subunit contains at least two of the provides critical representation and of communities, residences, commercial physical or biological features essential redundancy for the species. facilities, agricultural fields, roads, to the conservation of the Guyandotte

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5086 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

River crayfish, and we are reasonably crayfish populations upstream, adversely affect, listed species or critical certain that it will contribute to the successful reintroduction of the species habitat. conservation of the species. This to this subunit would contribute to the When we issue a biological opinion subunit represents the type location for species’ redundancy. concluding that a project is likely to the Guyandotte River crayfish, with jeopardize the continued existence of a Effects of Critical Habitat Designation specimens last collected in 1947. The listed species and/or destroy or best available survey data (Loughman Section 7 Consultation adversely modify critical habitat, we 2015b, p. 14) indicate this subunit provide reasonable and prudent maintains unembedded slab boulders Section 7(a)(2) of the Act requires alternatives to the project, if any are and boulders in the faster moving Federal agencies, including the Service, identifiable, that would avoid the stream sections, with some to ensure that any action they fund, likelihood of jeopardy and/or sedimentation observed in slow or slack authorize, or carry out is not likely to destruction or adverse modification of water sections (PBF 1). This subunit is jeopardize the continued existence of critical habitat. We define ‘‘reasonable located approximately midway between any endangered species or threatened and prudent alternatives’’ (at 50 CFR the extant Pinnacle Creek and Clear species or result in the destruction or 402.02) as alternative actions identified Fork populations and, if recolonized, adverse modification of designated during consultation that: would increase the redundancy of the critical habitat of such species. In (1) Can be implemented in a manner Guyandotte River crayfish and addition, section 7(a)(4) of the Act consistent with the intended purpose of contribute to population connectedness requires Federal agencies to confer with the action, within the species’ range (PBF 6). the Service on any agency action which (2) Can be implemented consistent is likely to jeopardize the continued with the scope of the Federal agency’s Subunit 1e: Huff Creek, Wyoming and existence of any species proposed to be legal authority and jurisdiction, Logan Counties, West Virginia listed under the Act or result in the (3) Are economically and Because we have determined destruction or adverse modification of technologically feasible, and occupied areas are not adequate for the proposed critical habitat. (4) Would, in the Service Director’s conservation of the Guyandotte River We published a final regulation with opinion, avoid the likelihood of crayfish, we have evaluated whether a revised definition of destruction or jeopardizing the continued existence of any unoccupied areas are essential for adverse modification on August 27, the listed species and/or avoid the the conservation of the species and 2019 (84 FR 44976). Destruction or likelihood of destroying or adversely identified this area as essential for the adverse modification means a direct or modifying critical habitat. conservation of the species. Subunit 1e indirect alteration that appreciably Reasonable and prudent alternatives includes approximately 28.0 skm (17.4 diminishes the value of critical habitat can vary from slight project smi) of Huff Creek, a tributary of the as a whole for the conservation of a modifications to extensive redesign or Guyandotte River. This subunit extends listed species. relocation of the project. Costs from the confluence of Huff Creek and If a Federal action may affect a listed associated with implementing a Straight Fork downstream to the species or its critical habitat, the reasonable and prudent alternative are confluence of Huff Creek and the responsible Federal agency (action similarly variable. Guyandotte River at Huff, West Virginia. agency) must enter into consultation Regulations at 50 CFR 402.16 require The USGS topographic maps and aerial with us. Examples of actions that are Federal agencies to reinitiate imagery (ESRI) indicate the Subunit 1e subject to the section 7 consultation consultation on previously reviewed watershed is mostly intact forest, with process are actions on State, tribal, actions. These requirements apply when evidence of legacy and ongoing coal local, or private lands that require a the Federal agency has retained mining and legacy natural gas drilling Federal permit (such as a permit from discretionary involvement or control on the adjacent slopes. Human the U.S. Army Corps of Engineers under over the action (or the agency’s development, in the form of residences, section 404 of the Clean Water Act (33 discretionary involvement or control is roads, and other infrastructure, occurs U.S.C. 1251 et seq.) or a permit from the authorized by law), and, subsequent to in the narrow riparian zone throughout Service under section 10 of the Act) or the previous consultation, we have this subunit. Subunit 1e is located that involve some other Federal action listed a new species or designated almost entirely on private land, except (such as funding from the Federal critical habitat that may be affected by for any small amount that is publicly Highway Administration, Federal the Federal action, or the action has owned in the form of bridge crossings or Aviation Administration, or the Federal been modified in a manner that affects road easements. the species or critical habitat in a way Although it is considered unoccupied, Emergency Management Agency). Federal actions not affecting listed not considered in the previous this subunit contains at least one of the consultation. In such situations, Federal physical or biological features essential species or critical habitat—and actions on State, tribal, local, or private lands agencies sometimes may need to request to the conservation of the Guyandotte reinitiation of consultation with us, but River crayfish, and we are reasonably that are not federally funded, authorized, or carried out by a Federal the regulations also specify some certain that it will contribute to the exceptions to the requirement to conservation of the species. The best agency—do not require section 7 consultation. reinitiate consultation on specific land available survey data (Loughman 2015b, management plans after subsequently Compliance with the requirements of pp. 14–15) indicate this subunit listing a new species or designating new section 7(a)(2) is documented through maintains unembedded slab boulders critical habitat. See the regulations for a our issuance of: and boulder clusters with only minimal description of those exceptions. sedimentation (PBF 1). Guyandotte (1) A concurrence letter for Federal River crayfish were last collected from actions that may affect, but are not Application of the ‘‘Adverse this subunit in 1989. While the R.D. likely to adversely affect, listed species Modification’’ Standard Bailey Dam, constructed in 1980, or critical habitat; or The key factor related to the adverse prevents connectivity between this (2) A biological opinion for Federal modification determination is whether subunit and the extant Guyandotte River actions that may affect, and are likely to implementation of the proposed Federal

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5087

action directly or indirectly alters the Exemptions critical habitat designation may have on designated critical habitat in a way that restricting or modifying specific land Application of Section 4(a)(3) of the Act appreciably diminishes the value of uses or activities for the benefit of the critical habitat as a whole for the Section 4(a)(3)(B)(i) of the Act (16 species and its habitat within the areas conservation of the listed species. As U.S.C. 1533(a)(3)(B)(i)) provides that: proposed. We then identify which discussed above, the role of critical ‘‘The Secretary shall not designate as conservation efforts may be the result of habitat is to support physical and critical habitat any lands or other the species being listed under the Act biological features essential to the geographical areas owned or controlled versus those attributed solely to the conservation of a listed species and by the Department of Defense, or designation of critical habitat for this provide for the conservation of the designated for its use, that are subject to particular species. The probable species. an integrated natural resources economic impact of a proposed critical Section 4(b)(8) of the Act requires us management plan [INRMP] prepared habitat designation is analyzed by to briefly evaluate and describe, in any under section 101 of the Sikes Act (16 comparing scenarios both ‘‘with critical proposed or final regulation that U.S.C. 670a), if the Secretary determines habitat’’ and ‘‘without critical habitat.’’ designates critical habitat, activities in writing that such plan provides a The ‘‘without critical habitat’’ scenario involving a Federal action that may benefit to the species for which critical represents the baseline for the analysis, destroy or adversely modify such habitat is proposed for designation.’’ which includes the existing regulatory habitat, or that may be affected by such There are no Department of Defense and socioeconomic burden imposed on designation. (DoD) lands with a completed INRMP landowners, managers, or other resource Activities that the Service may, within the proposed critical habitat users potentially affected by the during a consultation under section designation. designation of critical habitat (e.g., 7(a)(2) of the Act, find are likely to Consideration of Impacts Under Section under the Federal listing as well as destroy or adversely modify critical 4(b)(2) of the Act other Federal, State, and local habitat include, but are not limited to: regulations). The baseline, therefore, Section 4(b)(2) of the Act states that (1) Actions that would significantly represents the costs of all efforts the Secretary shall designate and make increase sediment deposition within the attributable to the listing of the species stream channel. Such activities could revisions to critical habitat on the basis under the Act (i.e., conservation of the include, but are not limited to, excessive of the best available scientific data after species and its habitat incurred erosion and sedimentation from coal taking into consideration the economic regardless of whether critical habitat is mining or abandoned mine lands, oil or impact, national security impact, and designated). The ‘‘with critical habitat’’ natural gas development, timber any other relevant impact of specifying scenario describes the incremental harvests, unpaved forest roads, road any particular area as critical habitat. impacts associated specifically with the construction, channel alteration, off- The Secretary may exclude an area from designation of critical habitat for the road vehicle use, and other land- critical habitat if he determines that the species. The incremental conservation disturbing activities in the watershed benefits of such exclusion outweigh the efforts and associated impacts would and floodplain. Sedimentation from benefits of specifying such area as part not be expected without the designation these activities could lead to stream of the critical habitat, unless he of critical habitat for the species. In bottom embeddedness that eliminates or determines, based on the best scientific other words, the incremental costs are reduces the sheltering habitat necessary data available, that the failure to those attributable solely to the for the conservation of these crayfish designate such area as critical habitat designation of critical habitat, above and species. will result in the extinction of the beyond the baseline costs. These are the (2) Actions that would significantly species. In making that determination, costs we use when evaluating the alter channel morphology or geometry. the statute on its face, as well as the benefits of inclusion and exclusion of Such activities could include, but are legislative history, are clear that the particular areas from the final not limited to, channelization, dredging, Secretary has broad discretion regarding designation of critical habitat should we impoundment, road and bridge which factor(s) to use and how much choose to conduct a discretionary construction, pipeline construction, and weight to give to any factor. destruction of riparian vegetation. These The first sentence in section 4(b)(2) of 4(b)(2) exclusion analysis. activities may cause changes in water the Act requires that we take into For this particular designation, we flows or channel stability and lead to consideration the economic, national developed an incremental effects increased sedimentation and stream security, or other relevant impacts of memorandum (IEM) considering the bottom embeddedness that eliminates or designating any particular area as probable incremental economic impacts reduces the sheltering habitat necessary critical habitat. We describe below the that may result from this proposed for the conservation of these crayfish process that we undertook for taking designation of critical habitat. The species. into consideration each category of information contained in our IEM was (3) Actions that would significantly impacts and our analyses of the relevant then used to develop a screening alter water chemistry or temperature. impacts. analysis of the probable effects of the Such activities could include, but are designation of critical habitat for the Big not limited to, the release of chemicals, Consideration of Economic Impacts Sandy and Guyandotte River crayfishes fill, biological pollutants, or heated Section 4(b)(2) of the Act and its (Industrial Economics, Incorporated effluents into the surface water or implementing regulations require that (IEc) 2019, entire). We began by connected groundwater at a point we consider the economic impact that conducting a screening analysis of the source or by dispersed release (non- may result from a designation of critical proposed designation of critical habitat point source). These activities could habitat. To assess the probable in order to focus on the key factors that alter water conditions to levels that are economic impacts of a designation, we are likely to result in incremental beyond the tolerances of the Big Sandy must first evaluate specific land uses or economic impacts. The purpose of the or Guyandotte River crayfish and result activities and projects that may occur in screening analysis is to filter out the in direct or cumulative adverse effects the area of the critical habitat. We then geographic areas in which the critical to individual crayfish. must evaluate the impacts that a specific habitat designation is unlikely to result

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5088 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

in probable incremental economic maintenance/management of facilities effects on the physical and biological impacts. In particular, the screening (e.g., abandoned mine lands, active features of the critical habitat and analysis considers baseline costs (i.e., mines, pipelines); (4) road and bridge whether the action appreciably absent critical habitat designation) and maintenance; (5) pesticide use; (6) diminishes the value of critical habitat includes probable economic impacts timber harvest; (7) agriculture; and (8) as a whole for the conservation of the where land and water use may be instream emergency response activities. listed species. subject to conservation plans, land We considered each industry or The above conclusion is also accurate management plans, best management category individually. Additionally, we for the occupied Guyandotte River practices, or regulations that protect the considered whether their activities have crayfish subunits (1a and 1b). For the habitat area as a result of the Federal any Federal involvement. Critical unoccupied Guyandotte River crayfish listing status of the species. The habitat designation generally will not subunits (1c, 1d, and 1e), we anticipate screening analysis filters out particular affect activities that do not have any project modifications may result in the areas of critical habitat that are already Federal involvement; under the Act, future from consultations on one subject to such protections and are, designation of critical habitat only planned surface mining project as well therefore, unlikely to incur incremental affects activities conducted, funded, as one existing surface mining project. economic impacts. Ultimately, the permitted, or authorized by Federal Examples of project modifications may screening analysis allows us to focus on agencies. In areas where the Big Sandy include, but are not limited to, sediment evaluating the specific areas or sectors and Guyandotte River crayfishes are monitoring, chemical testing, that may incur probable incremental present, Federal agencies already are macroinvertebrate monitoring, installing economic impacts as a result of the required to consult with the Service box culverts at all stream crossings, designation. The screening analysis also under section 7 of the Act on activities collocating valley fills or constructing assesses whether units/subunits are they fund, permit, or implement that regarded backstacks, and maintaining a unoccupied by the species and may may affect the species. If we finalize this spill response plan (IEc 2019, p. 15). require additional management or proposed critical habitat designation, Informed by discussions with a mining conservation efforts as a result of the consultations to avoid the destruction or company operating in Guyandotte River critical habitat designation for the adverse modification of critical habitat crayfish occupied habitat, the cost species which may incur incremental would be incorporated into the existing estimates associated with such project economic impacts. This screening consultation process. modifications are projected to be analysis combined with the information relatively minor, ranging from $30,000 In our IEM, we attempted to clarify to $60,000 in the year of contained in our IEM are what we the distinction between the effects that consider our draft economic analysis of implementation. will result from the species being listed The proposed critical habitat the proposed critical habitat designation and those attributable to the critical designation for the Big Sandy crayfish for the Big Sandy and Guyandotte River habitat designation (i.e., difference totals approximately 582 skm (362 smi), crayfishes and is summarized in the between the jeopardy and adverse all of which is currently occupied by the narrative below. modification standards) for the Big species. The proposed critical habitat Executive Orders (E.O.s) 12866 and Sandy or Guyandotte River crayfishes’ designation for the Guyandotte River 13563 direct Federal agencies to assess critical habitat. Because all of the units/ crayfish totals approximately 135 skm the costs and benefits of available subunits we are proposing to designate (84 smi), of which approximately 49 regulatory alternatives in quantitative as critical habitat for the Big Sandy percent is currently occupied by the (to the extent feasible) and qualitative crayfish are occupied, we do not expect species. terms. Consistent with the E.O. that the critical habitat designation will As stated in the DEA (IEc 2019, p. 1), regulatory analysis requirements, our result in any additional consultations. critical habitat designation for the Big effects analysis under the Act may take The conservation recommendations Sandy and Guyandotte River crayfish into consideration impacts to both provided to address impacts to the would be unlikely to generate costs directly and indirectly affected entities, occupied critical habitat will be the exceeding $100 million in a single year, where practicable and reasonable. If same as those recommended to address and therefore would not be significant. sufficient data are available, we assess impacts to the species because the The direct section 7 costs would most to the extent practicable the probable habitat tolerances of the Big Sandy likely be limited to additional impacts to both directly and indirectly crayfish are inextricably linked to the administrative effort to consider adverse affected entities. As part of our health, growth, and reproduction of the modification, as well as the project screening analysis, we considered the crayfish, which are present year-round modifications discussed above, in types of economic activities that are in their occupied streams. Furthermore, unoccupied habitat for the Guyandotte likely to occur within the areas likely because the proposed critical habitat River crayfish. All of the proposed affected by the critical habitat and the Big Sandy crayfish’s known critical habitat units/subunits for the Big designation. In our evaluation of the range are identical, the results of Sandy crayfish and two subunits of probable incremental economic impacts consultation under adverse modification critical habitat for the Guyandotte River that may result from the proposed are not likely to differ from the results crayfish are occupied year-round by designation of critical habitat for the Big of consultation under jeopardy. In the these species. Within occupied habitat, Sandy and Guyandotte River crayfishes, event of an adverse modification regardless of whether critical habitat is first we identified, in the IEM dated determination, we expect that designated, all projects with a Federal August 14, 2019 (Service 2019, entire), reasonable and prudent alternatives to nexus are already subject to section 7 probable incremental economic impacts avoid jeopardy to the species would also requirements. The administrative time associated with the following categories avoid adverse modification of the required to address critical habitat in of activities: (1) Watershed and stream critical habitat. The only incremental these consultations is minor. The results restoration activities; (2) construction of impact of critical habitat designation of consultation for adverse modification recreation improvements and that we anticipate is the small are not likely to differ from the results management of recreation activities; (3) administrative effort required during of consultation for jeopardy. Three energy extraction (coal, oil, and gas) and section 7 consultation to document subunits of critical habitat for the

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5089

Guyandotte River crayfish are currently modifications would be likely for activities, or a delay in training or unoccupied by the species. Section 7 existing and planned surface mines. facility construction, as a result of consultations for all projects with a As we stated earlier, we are soliciting compliance with section 7(a)(2) of the Federal nexus in this unoccupied data and comments from the public on Act. If the agency requesting the habitat would be fully attributable to the the DEA, as well as all aspects of this exclusion does not provide us with a critical habitat designation. We proposed rule and our required reasonably specific justification, we will anticipate incremental project determinations. We may revise the contact the agency to recommend that it modifications resulting from these proposed rule or supporting documents provide a specific justification or consultations, including for existing and to incorporate or address information clarification of its concerns relative to planned surface mines. we receive during the public comment the probable incremental impact that Based on the rate of historical period. In particular, we may exclude an could result from the designation. If the consultations in occupied units/ area from critical habitat if we agency provides a reasonably specific subunits, these two species are likely to determine that the benefits of excluding justification, we will defer to the expert generate a total of approximately 285 the area outweigh the benefits of judgment of DoD, DHS, or another consultations and technical assistances including the area, provided the Federal agency as to: (1) Whether in a given year. The total additional exclusion will not result in the activities on its lands or waters, or its administrative cost of addressing extinction of this species. activities on other lands or waters, have adverse modification in these new and During the development of a final national-security or homeland-security existing consultations is not expected to designation, we will consider any implications; (2) the importance of those exceed $860,000 to $920,000, depending additional economic impact information implications; and (3) the degree to on the range of cost estimates for we receive during the public comment which the cited implications would be unoccupied critical habitat (see below), period (see DATES, above), and areas adversely affected in the absence of an in a given year. This value likely may be excluded from the final critical exclusion. In that circumstance, in overestimates the cost because technical habitat designation under section 4(b)(2) conducting a discretionary section assistance consultations, which cost of the Act and our implementing 4(b)(2) exclusion analysis, we will give regulations at 50 CFR 424.19. substantially less, cannot be separated great weight to national-security and from informal consultations in the Consideration of National Security homeland-security concerns in consultation information provided to Impacts analyzing the benefits of exclusion. the economists. The cost of project In preparing this proposal, we have Section 4(a)(3)(B)(i) of the Act may determined that the lands within the modifications resulting from currently not cover all DoD lands or areas that identified existing and future activities proposed designation of critical habitat pose potential national-security for the Big Sandy and the Guyandotte in unoccupied habitat for the concerns (e.g., a DoD installation that is River crayfishes are not owned or Guyandotte River crayfish range from in the process of revising its INRMP for managed by DoD or DHS, and, therefore, $30,000 to $60,000 in a given year. a newly listed species or a species we anticipate no impact on national Further, the designation of critical previously not covered). If a particular security. Consequently, the Secretary is habitat is not expected to trigger area is not covered under section not intending to exercise his discretion additional requirements under State or 4(a)(3)(B)(i) of the Act, national-security to exclude any areas from the final local regulations. Additionally, because or homeland-security concerns are not a designation based on impacts on the proposed critical habitat is located factor in the process of determining national security unless we receive new in stretches of river, rather than on land, what areas meet the definition of information on such impacts during the impacts on property values resulting ‘‘critical habitat.’’ Nevertheless, when public comment period. from the perception of additional designating critical habitat under regulation are unlikely. Project section 4(b)(2) of the Act, the Service Consideration of Other Relevant modifications in unoccupied habitat for must consider impacts on national Impacts the Guyandotte River crayfish have the security, including homeland security, We have not considered any areas for potential to increase conservation in on lands or areas not covered by section exclusion from critical habitat. As these areas, resulting in an incremental 4(a)(3)(B)(i) of the Act. Accordingly, we explained above, there are no DoD or benefit. Data limitations preclude IEc’s will always consider for exclusion from national security impacts, and as ability to monetize these benefits; the designation areas for which DoD, described below, there are no Tribal however, these benefits are unlikely to Department of Homeland Security trust impacts associated with the exceed $100 million in a given year. (DHS), or another Federal agency has proposed designation. However, the The proposed units with the highest requested exclusion based on an final decision on whether to exclude potential costs resulting from the assertion of national-security or any areas will be based on the best designation of critical habitat are Unit 2 homeland-security concerns. scientific data available at the time of for the Big Sandy crayfish and the We cannot, however, automatically the final designation, including unoccupied subunits of Unit 1 for the exclude requested areas. When DoD, information obtained during the Guyandotte River crayfish. Proposed DHS, or another Federal agency requests comment period and information about Unit 2 for the Big Sandy crayfish exclusion from critical habitat on the the economic impact of designation. (Russell Fork, spanning both Kentucky basis of national-security or homeland- Accordingly, we have prepared a draft and Virginia) contains the most stream security impacts, it must provide a economic analysis (DEA) concerning the miles with adjacent Federal land reasonably specific justification of an proposed critical habitat designation, ownership and, therefore, a higher incremental impact on national security which is available for review and probability of intersecting with projects that would result from the designation comment (see ADDRESSES, above). or activities with a Federal nexus that of that specific area as critical habitat. require consultation. Because proposed That justification could include Exclusions Unit 1 for the Guyandotte River crayfish demonstration of probable impacts, Under section 4(b)(2) of the Act, we (in West Virginia) includes unoccupied such as impacts to ongoing border- consider any other relevant impacts, in stream miles, requests for project security patrols and surveillance addition to economic impacts and

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5090 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

impacts on national security. We long, the sections where you feel lists or include manufacturing and mining consider a number of factors including tables would be useful, etc. concerns with fewer than 500 whether there are permitted employees, wholesale trade entities Regulatory Planning and Review conservation plans covering the species with fewer than 100 employees, retail (Executive Orders 12866 and 13563) in the area, such as habitat conservation and service businesses with less than $5 plans (HCPs), safe harbor agreements, or Executive Order 12866 provides that million in annual sales, general and candidate conservation agreements with the Office of Information and Regulatory heavy construction businesses with less assurances, or whether there are non- Affairs (OIRA) will review all significant than $27.5 million in annual business, permitted conservation agreements and rules. The Office of Information and special trade contractors doing less than partnerships that would be encouraged Regulatory Affairs has determined that $11.5 million in annual business, and by designation of, or exclusion from, this rule is not significant. agricultural businesses with annual critical habitat. In addition, we look at Executive Order (E.O.) 13563 sales less than $750,000. To determine the existence of tribal conservation reaffirms the principles of E.O. 12866 if potential economic impacts to these plans and partnerships and consider the while calling for improvements in the small entities are significant, we government-to-government relationship nation’s regulatory system to promote considered the types of activities that of the United States with tribal entities. predictability, to reduce uncertainty, might trigger regulatory impacts under We also consider any social impacts that and to use the best, most innovative, this designation as well as types of might occur because of the designation. and least burdensome tools for project modifications that may result. In In preparing this proposal, we have achieving regulatory ends. The general, the term ‘‘significant economic determined that there are currently no executive order directs agencies to impact’’ is meant to apply to a typical HCPs or other management plans for the consider regulatory approaches that small business firm’s business Big Sandy or Guyandotte River reduce burdens and maintain flexibility operations. crayfishes, and the proposed and freedom of choice for the public The Service’s current understanding designation does not include any tribal where these approaches are relevant, of the requirements under the RFA, as lands or trust resources. We anticipate feasible, and consistent with regulatory amended, and following recent court objectives. E.O. 13563 emphasizes no impact on tribal lands, partnerships, decisions, is that Federal agencies are further that regulations must be based or HCPs from this proposed critical only required to evaluate the potential on the best available science and that habitat designation. incremental impacts of rulemaking on the rulemaking process must allow for During the development of a final those entities directly regulated by the public participation and an open designation, we will consider any rulemaking itself and, therefore, are not exchange of ideas. We have developed information currently available or required to evaluate the potential this rule in a manner consistent with received during the public comment impacts to indirectly regulated entities. these requirements. period regarding the economic, national The regulatory mechanism through security, or other relevant impacts of the Regulatory Flexibility Act (5 U.S.C. 601 which critical habitat protections are proposed designation and will et seq.) realized is section 7 of the Act, which requires Federal agencies, in determine whether any specific areas Under the Regulatory Flexibility Act should be excluded from the final consultation with the Service, to ensure (RFA; 5 U.S.C. 601 et seq.), as amended that any action authorized, funded, or critical habitat designation under by the Small Business Regulatory authority of section 4(b)(2) and our carried out by the agency is not likely Enforcement Fairness Act of 1996 to destroy or adversely modify critical implementing regulations at 50 CFR (SBREFA; 5 U.S.C. 801 et seq.), 424.19. habitat. Therefore, under section 7, only whenever an agency is required to Federal action agencies are directly Required Determinations publish a notice of rulemaking for any subject to the specific regulatory proposed or final rule, it must prepare Clarity of the Rule requirement (avoiding destruction and and make available for public comment adverse modification) imposed by We are required by Executive Orders a regulatory flexibility analysis that critical habitat designation. 12866 and 12988 and by the describes the effects of the rule on small Consequently, it is our position that Presidential Memorandum of June 1, entities (i.e., small businesses, small only Federal action agencies would be 1998, to write all rules in plain organizations, and small government directly regulated by this designation. language. This means that each rule we jurisdictions). However, no regulatory There is no requirement under the RFA publish must: flexibility analysis is required if the to evaluate the potential impacts to (1) Be logically organized; head of the agency certifies the rule will entities not directly regulated. (2) Use the active voice to address not have a significant economic impact Moreover, Federal agencies are not readers directly; on a substantial number of small small entities. Therefore, because no (3) Use clear language rather than entities. The SBREFA amended the RFA small entities would be directly jargon; to require Federal agencies to provide a regulated by this rulemaking, the (4) Be divided into short sections and certification statement of the factual Service certifies that, if adopted as sentences; and basis for certifying that the rule will not proposed, the critical habitat (5) Use lists and tables wherever have a significant economic impact on designation will not have a significant possible. a substantial number of small entities. economic impact on a substantial If you feel that we have not met these According to the Small Business number of small entities. requirements, send us comments by one Administration, small entities include In summary, we have considered of the methods listed in ADDRESSES. To small organizations such as whether the proposed designation better help us revise the rule, your independent nonprofit organizations; would result in a significant economic comments should be as specific as small governmental jurisdictions, impact on a substantial number of small possible. For example, you should tell including school boards and city and entities. For the above reasons and us the numbers of the sections or town governments that serve fewer than based on currently available paragraphs that are unclearly written, 50,000 residents; and small businesses information, we certify that, if adopted, which sections or sentences are too (13 CFR 121.201). Small businesses the proposed critical habitat designation

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5091

would not have a significant economic private sector, and includes both (2) We do not believe that this rule impact on a substantial number of small ‘‘Federal intergovernmental mandates’’ would significantly or uniquely affect business entities. Therefore, an initial and ‘‘Federal private sector mandates.’’ small governments. The waters we are regulatory flexibility analysis is not These terms are defined in 2 U.S.C. proposing to designate as critical habitat required. 658(5)–(7). ‘‘Federal intergovernmental are owned by the States of Kentucky, Virginia, and West Virginia. None of Executive Order 13771 mandate’’ includes a regulation that ‘‘would impose an enforceable duty these government entities fits the This proposed rule is not an E.O. upon State, local, or tribal governments’’ definition of ‘‘small governmental 13771 (‘‘Reducing Regulation and with two exceptions. It excludes ‘‘a jurisdiction.’’ Therefore, a Small Controlling Regulatory Costs’’) (82 FR condition of Federal assistance.’’ It also Government Agency Plan is not 9339, February 3, 2017) regulatory excludes ‘‘a duty arising from required. action because this rule is not participation in a voluntary Federal Takings—Executive Order 12630 significant under E.O. 12866. program,’’ unless the regulation ‘‘relates In accordance with E.O. 12630 Energy Supply, Distribution, or Use— to a then-existing Federal program (Government Actions and Interference Executive Order 13211 under which $500,000,000 or more is provided annually to State, local, and with Constitutionally Protected Private Executive Order 13211 (Actions tribal governments under entitlement Property Rights), we have analyzed the Concerning Regulations That authority,’’ if the provision would potential takings implications of Significantly Affect Energy Supply, ‘‘increase the stringency of conditions of designating critical habitat for the Big Distribution, or Use) requires agencies assistance’’ or ‘‘place caps upon, or Sandy and Guyandotte River crayfishes to prepare Statements of Energy Effects otherwise decrease, the Federal in a takings implications assessment. when undertaking certain actions. Coal Government’s responsibility to provide The Act does not authorize the Service mining, pipeline and utility crossings, funding,’’ and the State, local, or tribal to regulate private actions on private and oil and gas exploration activities governments ‘‘lack authority’’ to adjust lands or confiscate private property as a regularly occur within the range of the accordingly. At the time of enactment, result of critical habitat designation. Big Sandy and Guyandotte River these entitlement programs were: Designation of critical habitat does not crayfishes and their proposed critical Medicaid; Aid to Families with affect land ownership, or establish any habitat units/subunits (Service 2019, pp. Dependent Children work programs; closures, or restrictions on use of or 7–8). These are routine activities that access to the designated areas. Child Nutrition; Food Stamps; Social the Service consults on with the Office Furthermore, the designation of critical Services Block Grants; Vocational of Surface Mining, the Federal Energy habitat does not affect landowner Rehabilitation State Grants; Foster Care, Regulatory Commission, and the U.S. actions that do not require Federal Adoption Assistance, and Independent Army Corps of Engineers under section funding or permits, nor does it preclude Living; Family Support Welfare 7 of the Act. In our draft economic development of habitat conservation Services; and Child Support analysis (DEA), we do not find that the programs or issuance of incidental take Enforcement. ‘‘Federal private sector designation of this proposed critical permits to permit actions that do require mandate’’ includes a regulation that habitat would significantly affect energy Federal funding or permits to go ‘‘would impose an enforceable duty supplies, distribution, or use. As forward. However, Federal agencies are upon the private sector, except (i) a discussed in the DEA, the costs prohibited from carrying out, funding, condition of Federal assistance or (ii) a associated with consultations related to or authorizing actions that would duty arising from participation in a occupied critical habitat would be destroy or adversely modify critical voluntary Federal program.’’ largely administrative in nature and the habitat. A takings implications costs associated with the two mining The designation of critical habitat assessment has been completed and projects in unoccupied critical habitat does not impose a legally binding duty concludes that this designation of are estimated not to exceed $60,000 per on non-Federal Government entities or critical habitat for the Big Sandy and year (IEc 2019, pp. 1, 14–15). The full private parties. Under the Act, the only Guyandotte River crayfishes does not cost of the entire proposed designation regulatory effect is that Federal agencies pose significant takings implications for is not expected to exceed $920,000 per must ensure that their actions do not lands within or affected by the year, which does not reach the destroy or adversely modify critical designation. habitat under section 7. While non- significant threshold of $100 million per Federalism—Executive Order 13132 year. Therefore, this action is not a Federal entities that receive Federal significant energy action, and no funding, assistance, or permits, or that In accordance with E.O. 13132 Statement of Energy Effects is required. otherwise require approval or (Federalism), this proposed rule does However, we will further evaluate this authorization from a Federal agency for not have significant federalism effects. issue as we conduct our economic an action, may be indirectly impacted A federalism summary impact statement analysis, and review and revise this by the designation of critical habitat, the is not required. In keeping with assessment as warranted. legally binding duty to avoid Department of the Interior and destruction or adverse modification of Department of Commerce policy, we Unfunded Mandates Reform Act (2 critical habitat rests squarely on the requested information from, and U.S.C. 1501 et seq.) Federal agency. Furthermore, to the coordinated development of this In accordance with the Unfunded extent that non-Federal entities are proposed critical habitat designation Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they with, appropriate State resource seq.), we make the following findings: receive Federal assistance or participate agencies in Kentucky, Virginia, and (1) This proposed rule would not in a voluntary Federal aid program, the West Virginia. From a federalism produce a Federal mandate. In general, Unfunded Mandates Reform Act would perspective, the designation of critical a Federal mandate is a provision in not apply, nor would critical habitat habitat directly affects only the legislation, statute, or regulation that shift the costs of the large entitlement responsibilities of Federal agencies. The would impose an enforceable duty upon programs listed above onto State Act imposes no other duties with State, local, or tribal governments, or the governments. respect to critical habitat, either for

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5092 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

States and local governments, or for Paperwork Reduction Act of 1995 (44 Sandy or Guyandotte River crayfishes at anyone else. As a result, the rule would U.S.C. 3501 et seq.) the time of listing that contain the not have substantial direct effects either This rule does not contain any new features essential for conservation of the on the States, or on the relationship collections of information that require species, and no tribal lands unoccupied between the national government and approval by the Office of Management by the Big Sandy or Guyandotte River the States, or on the distribution of and Budget (OMB) under the Paperwork crayfishes that are essential for the powers and responsibilities among the Reduction Act of 1995 (44 U.S.C. 3501 conservation of the species. Therefore, various levels of government. The et seq.). An agency may not conduct or we are not proposing to designate designation may have some benefit to sponsor, and a person is not required to critical habitat for the Big Sandy or these governments because the areas respond to, a collection of information Guyandotte River crayfishes on tribal that contain the features essential to the unless it displays a currently valid OMB lands. conservation of the species are more control number. References Cited clearly defined, and the physical or biological features of the habitat National Environmental Policy Act (42 A complete list of references cited in necessary to the conservation of the U.S.C. 4321 et seq.) this proposed rule is available on the species are specifically identified. This It is our position that, outside the internet at http://www.regulations.gov information does not alter where and jurisdiction of the U.S. Court of Appeals and upon request from the North what federally sponsored activities may for the Tenth Circuit, we do not need to Atlantic–Appalachian Regional Office occur. However, it may assist these local prepare environmental analyses (see FOR FURTHER INFORMATION CONTACT). governments in long-range planning pursuant to the National Environmental (because these local governments no Policy Act (NEPA; 42 U.S.C. 4321 et Authors longer have to wait for case-by-case seq.) in connection with designating The primary authors of this proposed section 7 consultations to occur). critical habitat under the Act. We rulemaking are the staff members of the Where State and local governments published a notice outlining our reasons North Atlantic–Appalachian Regional require approval or authorization from a for this determination in the Federal Office, Kentucky Ecological Services Federal agency for actions that may Register on October 25, 1983 (48 FR Field Office, Southwestern Virginia affect critical habitat, consultation 49244). This position was upheld by the Field Office, and the West Virginia Field under section 7(a)(2) would be required. U.S. Court of Appeals for the Ninth Office. Circuit (Douglas County v. Babbitt, 48 While non-Federal entities that receive List of Subjects in 50 CFR Part 17 Federal funding, assistance, or permits, F.3d 1495 (9th Cir. 1995), cert. denied or that otherwise require approval or 516 U.S. 1042 (1996)). Endangered and threatened species, authorization from a Federal agency for Government-to-Government Exports, Imports, Reporting and an action, may be indirectly impacted Relationship With Tribes recordkeeping requirements, by the designation of critical habitat, the In accordance with the President’s Transportation. legally binding duty to avoid memorandum of April 29, 1994 Proposed Regulation Promulgation destruction or adverse modification of (Government-to-Government Relations critical habitat rests squarely on the with Native American Tribal Accordingly, we propose to amend Federal agency. Governments; 59 FR 22951), Executive part 17, subchapter B of chapter I, title Civil Justice Reform—Executive Order Order 13175 (Consultation and 50 of the Code of Federal Regulations, 12988 Coordination with Indian Tribal as set forth below: Governments), and the Department of PART 17—ENDANGERED AND In accordance with Executive Order the Interior’s manual at 512 DM 2, we THREATENED WILDLIFE AND PLANTS 12988 (Civil Justice Reform), the Office readily acknowledge our responsibility of the Solicitor has determined that the to communicate meaningfully with ■ 1. The authority citation for part 17 rule does not unduly burden the judicial recognized Federal Tribes on a continues to read as follows: system and that it meets the government-to-government basis. In requirements of sections 3(a) and 3(b)(2) accordance with Secretarial Order 3206 Authority: 16 U.S.C. 1361–1407; 1531– of the Order. We propose designating of June 5, 1997 (American Indian Tribal 1544; and 4201–4245, unless otherwise critical habitat in accordance with the Rights, Federal-Tribal Trust noted. provisions of the Act. To assist the Responsibilities, and the Endangered ■ 2. Amend § 17.11(h) by revising the public in understanding the habitat Species Act), we readily acknowledge entries for ‘‘Crayfish, Big Sandy’’ and needs of the species, this proposed rule our responsibilities to work directly ‘‘Crayfish, Guyandotte River’’ under identifies the elements of physical or with tribes in developing programs for ‘‘CRUSTACEANS’’ in the List of biological features essential to the healthy ecosystems, to acknowledge that Endangered and Threatened Wildlife to conservation of the species. The tribal lands are not subject to the same read as follows: designated areas of critical habitat are controls as Federal public lands, to presented on maps, and the proposed remain sensitive to Indian culture, and § 17.11 Endangered and threatened rule provides several options for the to make information available to tribes. wildlife. interested public to obtain more We determined that there are no tribal * * * * * detailed location information, if desired. lands that were occupied by the Big (h) * * *

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

******* CRUSTACEANS

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5093

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

******* Crayfish, Big Sandy ...... Cambarus callainus ...... Wherever found ...... T 81 FR 20450, 4/7/2016; 50 CFR 17.95(h).CH

******* Crayfish, Guyandotte Cambarus veteranus .... Wherever found ...... E 81 FR 20450, 4/7/2016; 50 CFR 17.95(h).CH River.

*******

■ 3. Amend § 17.95(h) by adding entries sediment and prevent substrate boundaries on the effective date of this for ‘‘Big Sandy Crayfish (Cambarus embeddedness. rule. callainus)’’ and ‘‘Guyandotte River (iii) Water quality characterized by (4) Critical habitat map units. Data seasonally moderated temperatures and Crayfish (Cambarus veteranus)’’ in the layers defining map units were created physical and chemical parameters (e.g., same order that these species appear in on a base of U.S. Geological Survey the table at § 17.11(h) to read as follows: pH, conductivity, dissolved oxygen) sufficient for the normal behavior, digital ortho-photo quarter-quadrangles, § 17.95 Critical habitat—fish and wildlife. growth, reproduction, and viability of and critical habitat units were then * * * * * all life stages of the species. mapped using Universal Transverse (h) Crustaceans. (iv) An adequate food base, indicated Mercator (UTM) Zone 15N coordinates. * * * * * by a healthy aquatic community ESRI’s ArcGIS 10.0 software was used to Big Sandy Crayfish (Cambarus structure including native benthic determine latitude and longitude callainus) macroinvertebrates, fishes, and plant coordinates using decimal degrees. The (1) Critical habitat units are depicted matter (e.g., leaf litter, algae, detritus). USA Topo ESRI online basemap service for Martin, Pike, Johnson, and Floyd (v) Aquatic habitats protected from was referenced to identify features (like Counties, Kentucky; Buchanan, riparian and instream activities that roads and streams) used to delineate the Dickenson, and Wise Counties, Virginia; degrade the physical and biological upstream and downstream extents of and McDowell, Mingo, and Wayne features described in paragraphs (2)(i) critical habitat units. The maps in this Counties, West Virginia, on the maps in through (iv) of this entry or cause entry, as modified by any accompanying this entry. physical (e.g., crushing) injury or death regulatory text, establish the boundaries (2) Within these areas, the physical or to individual Big Sandy crayfish. of the critical habitat designation. The biological features essential to the (vi) An interconnected network of coordinates or plot points or both on conservation of the Big Sandy crayfish streams and rivers that have the which each map is based are available consist of the following components: physical and biological features to the public at the Service’s internet (i) Fast-flowing stream reaches with described in paragraphs (2)(i) through site at https://www.fws.gov/westvirginia unembedded slab boulders, cobbles, or (iv) of this entry and that allow for the fieldoffice/, at http:// isolated boulder clusters within an movement of crayfish in response to www.regulations.gov at Docket No. unobstructed stream continuum (i.e.. environmental, physiological, or FWS–R5–ES–2019–0098, and at the riffle, run, pool complexes) of behavioral drivers. The scale of the North Atlantic–Appalachian Regional permanent, moderate- to large-sized interconnected stream network should Office. You may obtain field office (generally third order and larger) be sufficient to allow for gene flow location information by contacting one streams and rivers (up to the ordinary within and among watersheds. of the Service regional offices, the high water mark as defined at 33 CFR (3) Critical habitat does not include addresses of which are listed at 50 CFR 329.11). manmade structures (such as buildings, (ii) Streams and rivers with natural aqueducts, runways, roads, and other 2.2. variations in flow and seasonal flooding paved areas) and the land on which they (5) Note: Index map of Units 1 and 2 sufficient to effectively transport are located existing within the legal follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 5094 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(6) Unit 1: Upper Levisa Fork—Dismal kilometers (skm) (18.1 stream miles confluence with Levisa Fork (37.233465, Creek, Buchanan County, Virginia. (smi)) of Dismal Creek from its ¥82.043663) in Buchanan County, (i) General description: Unit 1 confluence with Laurel Fork (37.234458, Virginia. includes approximately 29.2 stream ¥81.862347) downstream to its (ii) Map of Unit 1 follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.000 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5095

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.001 5096 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(7) Unit 2: Russell Fork—Buchanan, (A) General description: Subunit 2a Levisa Fork at Levisa Junction, Dickenson, and Wise Counties, Virginia, consists of approximately 83.8 skm Kentucky (37.407259, ¥82.439904). and Pike County, Kentucky. (52.1 smi) of Russell Fork from its (B) Map of Subunit 2a follows: (i) Subunit 2a: Russell Fork, confluence with Ball Creek at Council, Buchanan and Dickenson Counties, Virginia (37.077889, ¥82.062759), Virginia, and Pike County, Kentucky. downstream to its confluence with

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.002 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5097

(ii) Subunit 2b: Hurricane Creek, smi) of Hurricane Creek from its Davenport, Virginia (37.101311, Buchanan County, Virginia. confluence with Gilbert Branch ¥82.137719). ¥ (A) General description: Subunit 2b (37.106350, 82.0939999) downstream (B) Map of Subunit 2b follows: consists of approximately 5.9 skm (3.7 to its confluence with Russell Fork at

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.003 5098 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(iii) Subunit 2c: Indian Creek, smi) of Indian Creek from its confluence Russell Fork in Buchanan and Buchanan and Dickenson Counties, with Three Forks in Buchanan County, Dickenson Counties, Virginia Virginia. Virginia (37.072393, ¥82.134788), (37.109915, ¥82.157881). (A) General description: Subunit 2c downstream to its confluence with (B) Map of Subunit 2c follows: consists of approximately 7.4 skm (4.6

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.004 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5099

(iv) Subunit 2d: Fryingpan Creek, smi) of Fryingpan Creek from its confluence with Russell Fork Dickenson County, Virginia. confluence with Priest Fork (37.068649, (37.163426, ¥82.255683). (A) General description: Subunit 2d ¥ 82.214330) downstream to its (B) Map of Subunit 2d follows: consists of approximately 4.6 skm (2.9

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.005 5100 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(v) Subunit 2e: Lick Creek, Dickenson (10.1 smi) of Lick Creek from its Russell Fork at Birchfield, Virginia County, Virginia. confluence with Cabin Fork near Aily, (37.176104, ¥82.270633). ¥ (A) General description: Subunit 2e Virginia (37.89885, 82.293036), (B) Map of Subunit 2e follows: consists of approximately 16.2 skm downstream to its confluence with

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.006 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5101

(vi) Subunit 2f: Russell Prater Creek, smi) of Russell Prater Creek from its Haysi, Virginia (37.204347, Buchanan and Dickenson Counties, confluence with Greenbrier Creek ¥82.291918). ¥ Virginia. (37.211915, 82.236479) downstream (B) Map of Subunit 2f follows: (A) General description: Subunit 2f to its confluence with Russell Fork at consists of approximately 8.4 skm (5.2

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.007 5102 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(vii) Subunit 2g: McClure River and McClure Creek and Wakenva Branch Middle Fork Open Fork and Coon Open Fork, Dickenson County, Virginia. (37.034201, ¥82.311081) downstream Branch (37.038336, ¥82.355402) (A) General description: Subunit 2g to the confluence of McClure River and downstream to the confluence of Open consists of approximately 35.6 skm Russell Fork (37.205175, ¥82.295412); Fork and McClure Creek at Nora, (22.1 smi) of the McClure River and and approximately 4.9 km (3.0 mi) of Virginia (37.069451, ¥82.346317). McClure Creek from the confluence of Open Fork from the confluence of (B) Map of Subunit 2g follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.008 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5103

(viii) Subunit 2h: Elkhorn Creek, Pike smi) of Elkhorn Creek from its Elkhorn City, Kentucky (37.302386, County, Kentucky. confluence with Mountain Branch ¥82.354708). ¥ (A) General description: Subunit 2h (37.271984, 82.405623) downstream (B) Map of Subunit 2h follows: consists of approximately 8.5 skm (5.3 to its confluence with Russell Fork at

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.009 5104 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(ix) Subunit 2i: Cranes Nest River and its confluence with Birchfield Creek with Dotson Creek (37.055320, Birchfield Creek, Dickenson and Wise (37.065100, ¥82.496553) downstream ¥82.552734) downstream to its Counties, Virginia. to its confluence with Lick Branch confluence with Cranes Nest River (A) General description: Subunit 2i (37.158007, ¥82.402839) and (37.063510, ¥82.496553). consists of approximately 24.6 skm approximately 6.9 skm (4.3 smi) of (B) Map of Subunit 2i follows: (19.0 smi) of the Cranes Nest River from Birchfield Creek from its confluence

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.010 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5105

(x) Subunit 2j: Pound River, (17.7 smi) of the Pound River from its confluence of the Pound River and Jerry Dickenson and Wise Counties, Virginia. confluence with Bad Creek (37.391300, Branch (37.189207, ¥82.444613). (A) General description: Subunit 2j ¥ 82.605201) downstream to the (B) Map of Subunit 2j follows: consists of approximately 28.5 skm

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.011 5106 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(8) Note: Index map of Unit 3 follows:

VerDate Sep<11>2014 19:19 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.012 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5107

(9) Unit 3: Lower Levisa Fork—Floyd, mi) of Levisa Fork from its confluence (10.9 smi) of Levisa Fork from its Johnson, and Pike Counties, Kentucky. with Russell Fork at Levisa Junction, confluence with Abbott Creek (i) Subunit 3a: Levisa Fork, Floyd, Kentucky (37.407259, ¥82.439904), (37.687149, ¥82.783021) downstream Johnson, and Pike Counties, Kentucky. downstream to its confluence with to its confluence with Miller Creek at (A) General description: Subunit 3a Island Creek at Pikeville, Kentucky Auxier, Kentucky. consists of approximately 15.9 km (9.9 (37.464506, ¥82.525588); and 17.5 skm (B) Map of Subunit 3a follows:

VerDate Sep<11>2014 19:19 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.013 5108 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(ii) Subunit 3b: Shelby Creek and (37.299511, ¥82.608677) downstream Left Fork Long Fork (37.286508, Long Fork, Pike County, Kentucky. to its confluence with Levisa Fork at ¥82.663639) downstream to the (A) General description: Subunit 3b Shelbiana, Kentucky (37.426986, confluence of Long Fork and Shelby consists of approximately 32.2 skm ¥82.497604); and approximately 12.9 Creek at Virgie, Kentucky (37.338841, (20.0 smi) of Shelby Creek from its skm (8.0 smi) of Long Fork from the ¥82.585800). confluence with Burk Branch confluence of Right Fork Long Fork and (B) Map of Subunit 3b follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.014 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5109

(10) Note: Index map of Unit 4 follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.015 5110 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(11) Unit 4: Tug Fork—McDowell, and Pike and Martin Counties, Pike County, Kentucky (37.607876, Mingo, and Wayne Counties, West Kentucky. ¥82.162722); and 11.7 skm (7.3 smi) of Virginia; Buchanan County, Virginia; (A) General description: Subunit 4a the Tug Fork from its confluence with and Pike and Martin Counties, consists of approximately 106.1 skm Little Elk Creek (37.885876, Kentucky. (65.9 smi) of the Tug Fork from its ¥82.421245) downstream to its confluence with Elkhorn Creek at (i) Subunit 4a: Tug Fork, McDowell, confluence with Bull Creek at Crum, Welch, West Virginia (37.430721, West Virginia (37.924275, ¥82.480983). Mingo, and Wayne Counties, West ¥81.586455), downstream to its Virginia; Buchanan County, Virginia; confluence with Blackberry Creek in (B) Map of Subunit 4a follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.016 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5111

(ii) Subunit 4b: Dry Fork and confluence with Jacobs Fork (37.280873, with Hite Fork at Jolo, West Virginia Bradshaw Creek, McDowell County, ¥81.665897) downstream to its (37.323526, ¥81.819835), downstream West Virginia. confluence with Tug Fork at Iaeger, to its confluence with Dry Fork at (A) General description: Subunit 4b West Virginia (37.462387, ¥81.817595); Bradshaw, West Virginia (37.352839, consists of approximately 45.2 skm and approximately 4.6 skm (2.9 smi) of ¥81.799246). (28.1 smi) of Dry Fork from its Bradshaw Creek from its confluence (B) Map of Subunit 4b follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.017 5112 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(iii) Subunit 4c: Panther Creek, smi) of Panther Creek from its Panther, West Virginia (37.482947, McDowell County, West Virginia. confluence with George Branch ¥81.898348). ¥ (A) General description: Subunit 4c (37.428924, 81.861612) downstream (B) Map of Subunit 4c follows: consists of approximately 10.7 skm (6.6 to its confluence with Tug Fork at

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.018 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5113

(iv) Subunit 4d: Knox Creek, (10.3 smi) of Knox Creek from its County, Kentucky (37.536035, Buchanan County, Virginia, and Pike confluence with Cedar Branch ¥82.059658). ¥ County, Kentucky. (37.454923, 82.050515) downstream (B) Map of Subunit 4d follows: (A) General description: Subunit 4d to its confluence with Tug Fork in Pike consists of approximately 16.6 skm

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.019 5114 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(v) Subunit 4e: Peter Creek, Pike smi) of Peter Creek from the confluence to the confluence of Peter Creek and Tug County, Kentucky. of Left Fork Peter Creek and Right Fork Fork at Freeburn, Kentucky (37.566644, (A) General description: Subunit 4e Peter Creek at Phelps, Kentucky ¥82.144842). consists of approximately 10.1 skm (6.3 (37.514158, ¥82.152615), downstream (B) Map of Subunit 4e follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.020 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5115

(vi) Subunit 4f: Blackberry Creek, Pike smi) of Blackberry Creek its confluence confluence of Blackberry Creek and Tug County, Kentucky. with Bluespring Branch (37.549770, Fork (37.607876, ¥82.162722). (A) General description: Subunit 4f ¥ 82.188713) downstream to the (B) Map of Subunit 4f follows: consists of approximately 9.1 skm (5.7

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.021 5116 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(vii) Subunit 4g: Pigeon Creek and with Trace Fork (37.773483, (37.837657, ¥82.219076) downstream Laurel Fork, Mingo County, West ¥82.237696) downstream to its to its confluence with Pigeon Creek at Virginia. confluence with Tug Fork (37.789979, Lenore, West Virginia (37.796029, (A) General description: Subunit 4g ¥82.351194); and approximately 11.1 ¥82.287111). consists of approximately 14.0 skm (8.7 skm (6.9 smi) of Laurel Fork from its (B) Map of Subunit 4g follows: smi) of Pigeon Creek from its confluence confluence with Lick Branch

Guyandotte River Crayfish (Cambarus sufficient to effectively transport (vi) An interconnected network of veteranus) sediment and prevent substrate streams and rivers that have the (1) Critical habitat units are depicted embeddedness. physical and biological features for Logan and Wyoming Counties, West (iii) Water quality characterized by described in paragraphs (2)(i) through Virginia, on the maps in this entry. seasonally moderated temperatures and (iv) of this entry and that allow for the (2) Within these areas, the physical or physical and chemical parameters (e.g., movement of crayfish in response to biological features essential to the pH, conductivity, dissolved oxygen) environmental, physiological, or conservation of the Guyandotte River sufficient for the normal behavior, behavioral drivers. The scale of the crayfish consist of the following growth, reproduction, and viability of interconnected stream network should components: all life stages of the species. be sufficient to allow for gene flow (i) Fast-flowing stream reaches with (iv) An adequate food base, indicated within and among watersheds. unembedded slab boulders, cobbles, or by a healthy aquatic community (3) Critical habitat does not include isolated boulder clusters within an structure including native benthic manmade structures (such as buildings, unobstructed stream continuum (i.e., macroinvertebrates, fishes, and plant aqueducts, runways, roads, and other riffle, run, pool complexes) of matter (e.g., leaf litter, algae, detritus). paved areas) and the land on which they permanent, moderate- to large-sized (v) Aquatic habitats protected from are located existing within the legal (generally third order and larger) riparian and instream activities that boundaries on the effective date of this streams and rivers (up to the ordinary degrade the physical and biological rule. high water mark as defined at 33 CFR features described in paragraphs (2)(i) (4) Critical habitat map units. Data 329.11). through (iv) of this entry or cause layers defining map units were created (ii) Streams and rivers with natural physical (e.g., crushing) injury or death on a base of U.S. Geological Survey variations in flow and seasonal flooding to individual Guyandotte River crayfish. digital ortho-photo quarter-quadrangles,

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.022 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5117

and critical habitat units were then critical habitat units. The maps in this FWS–R5–ES–2019–0098, and at the mapped using Universal Transverse entry, as modified by any accompanying North Atlantic-Appalachian Regional Mercator (UTM) Zone 15N coordinates. regulatory text, establish the boundaries Office. You may obtain field office ESRI’s ArcGIS 10.0 software was used to of the critical habitat designation. The location information by contacting one determine latitude and longitude coordinates or plot points or both on of the Service regional offices, the coordinates using decimal degrees. The which each map is based are available addresses of which are listed at 50 CFR USA Topo ESRI online basemap service to the public at the Service’s internet 2.2. was referenced to identify features (like site at https://www.fws.gov/westvirginia (5) Note: Index map of critical habitat roads and streams) used to delineate the fieldoffice/, at http:// for the Guyandotte River crayfish upstream and downstream extents of www.regulations.gov at Docket No. follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.023 5118 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(6) Unit 1: Upper Guyandotte—Logan (A) General description: Subunit 1a to its confluence with the Guyandotte and Wyoming Counties, West Virginia. consists of approximately 28.6 skm River at Pineville, West Virginia ¥ (i) Subunit 1a: Pinnacle Creek, (17.8 smi) of Pinnacle Creek from its (37.574700, 81.536473). Wyoming County, West Virginia. confluence with Beartown Fork (B) Map of Subunit 1a follows: (37.489547, ¥81.394295) downstream

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.024 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5119

(ii) Subunit 1b: Clear Fork and Laurel (23.6 smi) of Clear Fork and its primary downstream to the confluence of Clear Fork, Wyoming County, West Virginia. tributary Laurel Fork from the Fork and the Guyandotte River (A) General description: Subunit 1b confluence of Laurel Creek and Acord (37.607552, ¥81.730974). consists of approximately 38.0 skm Branch (37.669908, ¥81.551222) (B) Map of Subunit 1b follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.025 5120 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(iii) Subunit 1c: Guyandotte River, (22.2 smi) of the Guyandotte River from confluence with Clear Fork (37.607552, Wyoming County, West Virginia. its confluence with Pinnacle Creek at ¥81.730974). (A) General description: Subunit 1c Pineville, West Virginia (37.574700, (B) Map of Subunit 1c follows: consists of approximately 35.8 skm ¥81.536473), downstream to its

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.026 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules 5121

(iv) Subunit 1d: Indian Creek, smi) of Indian Creek from the confluence of Indian Creek and the Wyoming County, West Virginia. confluence of Indian Creek and Brier Guyandotte River (37.587149, (A) General description: Subunit 1d Creek at Fanrock, West Virginia ¥81.664680). consists of approximately 4.2 skm (2.6 (37.566268, ¥81.650848), to the (B) Map of Subunit 1d follows:

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4725 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.027 5122 Federal Register / Vol. 85, No. 18 / Tuesday, January 28, 2020 / Proposed Rules

(v) Subunit 1e: Huff Creek, Wyoming (17.4 smi) of Huff Creek from its River at Huff, West Virginia (37.730736, and Logan Counties, West Virginia. confluence with Straight Fork ¥81.873387). ¥ (A) General description: Subunit 1e (37.748834, 81.640132) downstream (B) Map of Subunit 1e follows: consists of approximately 28.0 skm to its confluence with the Guyandotte

* * * * * Dated: January 15, 2020. Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–01012 Filed 1–27–20; 8:45 am] BILLING CODE 4333–15–P

VerDate Sep<11>2014 17:39 Jan 27, 2020 Jkt 250001 PO 00000 Frm 00052 Fmt 4701 Sfmt 9990 E:\FR\FM\28JAP2.SGM 28JAP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 EP28JA20.028