March 22, 2017

Submitted via electronic mail and U.S. Mail

Sarah McRae Aquatic Endangered Species Biologist U.S. Fish & Wildlife Service, Southeast Region PO Box 33726 Raleigh, NC 27636-3726 [email protected]

Re: Updated Best Available Science for Neuse River Waterdog (Necturus lewisi)

Dear Ms. McRae,

I am writing on behalf of the Center for Biological Diversity (“Center”) to provide additional information on the status of the Neuse River waterdog (Necturus lewisi), which is scheduled to receive an Endangered Species Act 12-month finding in 2017. The Center is a national, nonprofit organization with more than 1.2 million members and supporters who are dedicated to protecting and restoring endangered species and their habitats through science, policy, education, advocacy, and environmental law.

The Neuse River waterdog is a rare and significant part of North Carolina’s— indeed the United States’—natural heritage. It is only known from the Neuse and Tar-Pamlico River systems in the Piedmont and Coastal Plain regions of North Carolina (AmphibiaWeb 2017). The best available science indicates that the species is in decline and facing current and mounting threats including habitat loss, pollution, overutilization, and climate change. Existing regulatory mechanisms are inadequate to protect the Neuse River waterdog from these threats and ensure its future existence. Consequently, it is imperative that the U.S. Fish and Wildlife Service (“Service”) protect the species under the Endangered Species Act.

This letter provides recent, relevant scientific studies as well as newly identified threats within the species’ range, which is meant to supplement information provided in a petition to list the species submitted in 2010 and already before the agency.1

1 Center for Biological Diversity, Petition to List 404 Aquatic, Riparian and Wetland Species from the Southeastern United States as Threatened or Endangered under the Endangered Species Act 6–33, 723–729 (April 20, 2010), available at

I. Habitat Destruction

Neuse River waterdogs are impacted by habitat loss and degradation in the river systems where they are found. They use different types of habitat at different developmental stages; thus a diverse array of microhabitat is required to support healthy populations. Juvenile waterdogs shelter under granite boulders on sand and gravel substrates, and at an eastern Piedmont site they also use leaf beds in the early spring (AmphibiaWeb 2017). Adult waterdogs are permanently aquatic and are generally found in backwaters off the main current (AmphibiaWeb 2017). They prefer sandy or muddy substrates (AmphibiaWeb 2017). They are most commonly found in streams greater than 15 meters wide and 1 meter deep, with flow rates greater than 10 cubic meters per second (AmphibiaWeb 2017). They have also been found in areas with clay or hard soil substrates and leaf beds (AmphibiaWeb 2017). Within waterways, Neuse River waterdogs are distributed throughout larger headwater streams to coastal streams up to the point of saltwater intrusion (AmphibiaWeb 2017).

Neuse River waterdog habitat is threatened primarily by damming and channelization of streams, as well as degradation from urban, industrial, and agricultural pollution. The following subsections address each of these threats in detail.

a. Dams and Channelization

Dams and channelization cause significant, negative impacts to aquatic environments, and thus threaten the Neuse River waterdog. There are numerous dams in North Carolina and in the species’ range. According to the U.S. Army Corps of Engineers’ National Inventory of Dams, there are 3,444 dams in North Carolina (USACOE undated). The Corps ranks 1,448 dams as having a high hazard potential and 599 dams as having a significant hazard potential (USACOE undated). The hazard potential classification is intended to rank dams in terms of potential downstream losses—including environmental losses—if the dam should fail or be improperly operated (USACOE undated). These rankings are significantly lower than neighboring South Carolina, which has 2,444 total dams with 209 ranking with a high hazard potential and 480 ranking with a significant hazard potential (USACOE undated). There are 28 dams on the Neuse River and its major tributaries, 11 on the Tar River and its tributaries, and 5 on the Pamlico River (USACOE undated).

All dams have complex impacts on waterways, including significant impacts on natural stream flows by reducing the amount of water available through evaporative loss, storage, and releases (Baer and Ingle 2016 at 38). Water releases may also be irregular. For instance, hydropower dams release water http://www.biologicaldiversity.org/programs/biodiversity/1000_species/the_southeast_freshw ater_extinction_crisis/pdfs/SEPetition.pdf.

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when they are generating power and release much smaller amounts when they are not (Baer and Ingle 2016 at 38). Although dams regulated by the Federal Energy Regulatory Commission (FERC) must obtain licenses with set conditions to generate hydroelectricity, these licenses were often granted before the importance of river-flow protection was recognized (Baer and Ingle 2016 at 38). Because Neuse River waterdogs have specific preferences regarding the size, depth, and flow of the waterways they inhabit, existing dam’s impacts to flow continue to threaten the species survival. Low or irregular flows caused by dams are particularly concerning in light of projected increasing temperatures and rain variability due to global climate change and projected human population growth (Carter et al. 2014 at 403, 405–406), which could lead to limited water availability for the species.

Dams also significantly alter aquatic environments, leading to negative impacts on species. Specifically, they can change water quality via shifts in temperature, pH, turbidity, and dissolved oxygen. Impoundments can alter physical and chemical water qualities including dissolved oxygen and water temperature, which in turn affects the ecosystems below them (Lessard and Hayes 2003 at 722). Temperature is a crucial physical property of flowing water because of its significance to all freshwater organisms (Webb et al. 2008 at 902). For instance, elevated temperatures can increase wildlife metabolic rates, creating a need for increased levels of food quantity and quality for the wildlife to survive (Lessard and Hayes 2003 at 722). Species that need cold water are also negatively impacted by increased water temperatures (Lessard and Hayes at 722). Because the Neuse River waterdog’s activity levels can be impacted by water temperature (AmphibiaWeb 2017), these impacts should be considered a threat to the species.

Dams can also cause channel incision, the general lowering of a streambed over time (Castro 2003 at 2; Simon and Rinaldi 2006 at 375). Incision is of particular concern in areas with soft, erodible sediments. Typically the channel below the dam will become deeper and the banks will collapse as the channel grows wider and shallower as sediment is transferred downstream. Increased erosion and sedimentation associated with channel incision can drive extensive destruction and degradation of stream corridor habitats, leading to reduced habitat heterogeneity, greater temporal instability, reduced stream-floodplain interaction, and shifts in fish community structure (Shields et al. 1994, entire; Shields et al. 1998, entire). Incised streams are also likely to demonstrate water quality degradation with levels of turbidity and solids 2–3 times higher than non-incised streams (Shields et al. 2010, entire). They may also demonstrate increased “flashiness,” dramatic fluctuation in flow between dry and wet weather (Shields et al. 2010, entire). These changes make incised channel habitat “inferior” to channels not impacted by incision, with fewer types of habitat (Shields et al. 1994 at 48–52). Dams in the Neuse River waterdog’s range likely cause these types of changes to sediment and water flow, which

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could contribute to declines in waterdog populations that depend on specific sediment and flow conditions.

Dam failure or reckless removal of existing dams may also threaten waterdog populations if not completed with caution and active monitoring. North Carolina has one of the highest densities of small dams in the U.S. (Sherman 2013 at i). As many smaller dams become structurally unsound, they are being removed. For species like the Neuse River waterdog, which have specific habitat requirements related to water depth, flow, and quality, sudden changes caused by dam removal could be devastating. For instance, dams tend to cause upstream sediment storage, which is then released downstream (Doyle et al. 2005 at 229; Sherman 2013 at 11–12). These sediments may be contaminated in areas where dams were built in urbanized areas for industrial purposes (Sherman 2013 at 12). If a sediment release were to flow over active waterdog habitat, it would essentially evict the species by completely engulfing the leaf litter, boulders, and gravel it uses for sheltering. This would expose the waterdog to predation and disrupt essential feeding and breeding activities. Thus, while dam removal can return some aspects of aquatic ecosystems such as water flow to their pre-dam state, there is also potential for it to cause “irreversible degradation to specific ecosystem attributes” if removal is not designed to minimize negative impacts and maximize ecosystem recovery (Doyle et al. 2005 at 241–242). Likewise, these threats exist if a dam were to fail.

The broad and significant impacts dams have on natural waterways directly threaten the Neuse River waterdog within its range through changes in quantity and quality of water. They also threaten the species with future harm, particularly in synergy with climate change, human population growth, and potential dam failure.

b. Industrial Agricultural Pollution / Concentrated Animal Feeding Operations

Wastes from industrial agriculture—specifically concentrated animal feeding operations (“CAFOs”)—also threaten the Neuse River waterdog by degrading water quality in streams across its range. North Carolina is one of the Nation’s principal animal producers, with thousands of CAFOs scattered across the state (Harden 2015 at 14). These CAFOs produce about 10 billion gallons of wet animal waste each year in the state of North Carolina alone (EWG and Waterkeeper Alliance 2016). At a typical swine CAFO, animal waste including manure is flushed from the swine houses into one or more holding “lagoons” for storage, and some is then applied to nearby fields as fertilizer (Harden 2015 at 14). These open-air storage systems can be problematic for surrounding environments, particularly when there are adverse weather conditions or when application of waste to crops exceeds crop uptake (Harden 2014 at 14).

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In fact, animal feeding operations are recognized as significant contributors of nitrogen and phosphorus pollution to streams in the North Carolina Coastal Plain, and the USGS recently confirmed a measureable effect of CAFO waste manures on stream water quality for watersheds where CAFOs are present (Harden 2015 at 1, 3).2 Excessive input of nitrogen and phosphorus from CAFOs and other agricultural activities can contribute to eutrophication, excess algal blooms, wildlife kills, and outbreaks of toxic dinoflagellates (Harden 2015 at 14). Increased concentrations of ammonia, calcium, magnesium, sodium, potassium, and chloride have also been observed in groundwater beneath CAFO spray fields (Harden 2015 at 4). Often this contaminated groundwater is interconnected with surface waters, causing the far-reaching spread of contaminants.

CAFO operations are actively polluting streams the Neuse River waterdog needs to survive. Nutrient pollution can enter streams via polluted groundwater or from overland runoff (Harden 2015, pp. 3–4). Agricultural activities such as CAFO operation have already contributed to water quality problems in waterways in the Tar-Pamlico, Neuse, and Cape Fear river basins (Harden 2015, p. 14). Many CAFOs exist along waterways where Neuse River waterdogs are known to occur. Figure 1 from Harden et al. 2015, inserted below, shows large densities of CAFOs in the Neuse River watershed, and many scattered across the Tar-Pamlico watershed.

2 These effects are largely apparent in watersheds with lower percentages of wetlands and higher swine barn densities (Harden 2015 at 1–2).

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Figure 1: Locations of Permitted CAFOs Source: Harden et al. (2015).

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In the Upper Tar watershed, there are 75 waste lagoons producing an estimated 10,354,302 gallons per year of wet waste, and 270 poultry barns producing 39,657 tons per year of dry waste (EWG and Waterkeeper Alliance

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undated, map providing Locations of Concentrated Animal Feeding Operations in North Carolina by Watershed).

In the Lower Tar watershed, there are 63 waste lagoons producing an estimated 216,533,254 gallons per year of wet waste, and 89 poultry barns producing approximately 7,698 tons per year of dry waste (EWG and Waterkeeper Alliance, undated).

In the Upper Neuse watershed, there are 276 waste lagoons producing approximately 504,942,335 gallons per year of wet waste, and 424 poultry barns producing 67,410 tons per year of dry waste (EWG and Waterkeeper Alliance, undated).

In the Middle Neuse watershed, there are 245 waste lagoons producing 585,350,859 gallons/year of wet waste, and 347 poultry barns producing approximately 39,048 tons/year of dry waste (EWG and Waterkeeper Alliance, undated).

Among these watersheds, located in the heart of the Neuse River waterdog’s range, more than 1 million gallons of wet waste and more than 150,000 tons of dry waste are created each year (EWG and Waterkeeper Alliance, undated).

Contaminants from these animal wastes can enter the environment through leakage from poorly constructed manure lagoons or during major precipitation events that results in lagoon overflow or surface runoff from fields (Burkholder et al. 2007 at 308). These contaminants include nutrients, pathogens, veterinary pharmaceuticals, heavy metals, and naturally excreted hormones (Burkholder et al. 2007 at 308). Although nutrients such as nitrogen or phosphorus can be desirable for crop fertilizers, large amounts applied to waterways can cause harmful algal blooms and low dissolved oxygen, leading to fish and aquatic wildlife kills (Burkholder et al. 2007 at 308–309). Other contaminants may cause endocrine disruption and antibiotic resistance issues (Burkholder et al. 2007 at 309). Swine waste lagoons also emit hydrogen sulfide, a colorless, potentially harmful gas, which can travel in particulate form through the air to other locations (Rumsey and Aneja 2014 at 1609).

The prolific CAFOs in eastern North Carolina have proven to have devastating impacts on water quality for many species in the Neuse and Tar-Pamlico watersheds, including the Neuse River waterdog. Heaney and others (2015), found high fecal indicator bacteria concentrations in both up- and down- stream sites from CAFOs, indicating diffuse and overall poor sanitary quality of waters in areas with high CAFO density (Heaney et al. 2015, entire).

Additionally, within the last few years, waste from CAFOs has directly entered surface waters during extreme weather events. Most recently in October 2016, hog and poultry CAFOs in North Carolina flooded, killing livestock and flooding hog-manure lagoons containing pathogenic bacteria, antibiotic residues, and

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nitrate, which can cause harmful algal blooms.3 Some of the lagoons were so flooded they could not even be identified when taking aerial photographs.4 Waterkeeper Alliance documented several flooded hog waste lagoons in Wayne County, a county within the Neuse River waterdog’s range.5 One photograph shows a flooded facility almost directly adjacent to the Neuse River.6 A North Carolina Department of Environmental Quality spokesperson told Reuters that many of the hog lagoons were inundated and leaching into the waterways.7

This is not the first time extreme weather has caused hog waste to enter North Carolina’s Surface Waters. In 1999, Hurricane Floyd washed raw manure and 30,000 to 100,000 dead hogs into watersheds, creating a 350-square mile dead zone in coastal estuaries.8

As climate change causes more frequent extreme weather events (Melillo et al. 2014, entire), and as long as hog waste lagoons continue to exist in North Carolina, CAFOs will continue to pose a clear threat to the Neuse River waterdog through their impacts to water quality.

c. Coal Ash

Coal ash ponds are also present within the Neuse River waterdog’s range and threaten water quality through leaching, flooding, and spills. A Duke University study of coal ash ponds near 21 power plants in the Southeastern United States found evidence of consistent and lasting contamination of nearby surface and groundwater (Harkness et al. 2016, entire).9 Toxic heavy metals including arsenic and selenium were found in high levels in surface water or groundwater at all of the sites tested, and concentrations of trace elements in 29 percent of the surface water samples exceeded EPA standards for drinking water and aquatic life (Harkness et al. 2016, entire). One of the researchers noted that elevated levels of selenium in surface waters are certain to cause

3 Tom Philpott, Hurricane Matthew Killed Millions of Farm Animals in North Carolina: It also likely caused massive amounts of toxic hog poop to flow into rivers and streams, Mother Jones, http://www.motherjones.com/environment/2016/10/hurricane-matthew-killed-animals-hog- poop (Oct. 14, 2016) [hereinafter Mother Jones]. 4 Id. 5 Neuse River waterdog’s range extends across Person, Granville, Vance, Warren, Halifax, Orange, Durham, Wake, Franklin, Nash, Edgecomb, Martin, Johnston, Wilson, Greene, Pitt, Wayne, Nenoir, Jones, Craven, Sampson, Duplin, Onslow counties in North Carolina. 6 Mother Jones. 7 Id. 8 McGraw Hill, NC Aquatic Dead Zone from Floods after Hurricane Floyd, http://www.mhhe.com/biosci/pae/es_map/articles/article_53.mhtml (Oct. 1999); see also Mother Jones. 9 Duke Today Staff, Coal Ash Ponds Found to Leak Toxic Chemicals, Duke Today https://today.duke.edu/2016/06/ashpondleaks (June 10, 2016).

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ecological impacts.10 This contamination was found to be widespread and persistent in the environment (Harkness et al. 2016, entire).

Scientists have recorded various impacts to amphibians from coal ash. Coal- combustion residue contamination of aquatic habitats has been shown to result in the accumulation of numerous metals and trace elements in larval amphibians, including arsenic, cadmium, chromium, copper, mercury, lead, selenium, and vanadium (Rowe et al. 2002, entire). These accumulations can lead to developmental, behavioral, and physiological effects (Rowe et al. 2002, entire). These metals and trace elements may also interact synergistically or antagonistically within individual amphibians (Heyes et al. 2014 at 79). Contaminants from coal combustion waste may also move through maternal transfer to offspring, and may reduce reproductive success and offspring viability (Metts et al. 2013, entire). One study found that maternal exposure to coal combustion waste coupled with larval exposure to the same waste interacted to reduce survival of southern toads to metamorphosis by 85% (Metts et al. 2012). Another study found morphological impacts to bullfrog tadpoles associated with coal ash deposition, which affected their ability to feed and grow (Rowe et al. 1996). Roe et al. (2006), studied the impacts of coal combustion wastes on salamanders (Ambystoma talpoideum) in temporary ponds and found that salamanders exposed to the wastes experienced higher larval mortality, likely due to toxicity and extended larval periods which led to larvae mortality when they were not ready to morphose before the ponds dried up.

Coal ash ponds also threaten waterdog habitat during extreme weather events. In October 2016, during Hurricane Matthew, a 1.2-billion-gallon cooling pond dam at Duke Energy’s H.F. Lee plant in Goldsboro, North Carolina, breached, flooding into the Neuse River. 11 Three coal ash ponds at the plant were also completely submerged for days.12 This coal ash in the submerged ponds is spread in a layer that is between four and ten feet thick and spans across an area the size of 130 football fields.13 Duke Energy confirmed that “some

10 Laurie A. Shuster, Coal Ash Sites Leak Into Surface Water and Groundwater, Civil Engineering: The Magazine of the American Society of Civil Engineers (June 28, 2016) http://www.asce.org/magazine/20160628-coal-ash-sites-leak-into-surface-water-and- groundwater/. 11 News Release, Waterkeeper Alliance, Waterkeeper Alliance and Upper Neuse Riverkeeper Respond to Duke Energy Cooling Pond Dam Breach of Quaker Neck Lake, http://waterkeeper.org/waterkeeper-alliance-and-upper-neuse-riverkeeper-respond-to-duke- energy-cooling-pond-dam-breach/ (Oct. 12, 2016). 12 Id. 13 News Release, Waterkeeper Alliance, Waterkeeper Alliance and Upper Neuse Riverkeeper at Sound Rivers Respond to News of Coal Ash Release from the Duke Energy H.F. Lee Facility in Goldsboro, NC (Oct. 15, 2016) http://waterkeeper.org/waterkeeper-alliance-and-upper-neuse- riverkeeper-at-sound-rivers-respond-to-news-of-coal-ash-release-from-the-duke-energy-h-f-lee- facility-in-goldsboro-nc/; see also SynTerra, Figure 6-1a: Geologic Cross Sections Inactive Ash Basins (Oct. 12, 2015), http://edocs.deq.nc.gov/WaterResources/0/doc/295505/Page1.aspx.

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material, including coal ash, eroded and was carried by flood waters outside one of the berms of an inactive basin.”14 Duke also reported cenospheres, which they described as a by-product of coal-burning power plants made largely of aluminum and silica, floating in waters near the site.15

The Upper Neuse Riverkeeper and Waterkeeper Alliance monitored the impacts from the spills during and after Hurricane Matthew. They reported coal ash floating on the Neuse River and covering trees as high as seven feet.16 Waterkeeper Alliance also took samples of spilled coal ash cenospheres and provided them to scientists at Appalachian State University to test for contaminants.17 The testing revealed heavy metals including antimony and cobalt, and thallium on the fly-ash cenospheres.18

The spill at the Duke’s H.F. Lee Plant occurred in waters within the Neuse River waterdog’s range (see Figures 2–4, below). Consequently, the contaminants from the coal ash ponds likely threatened Neuse River waterdogs and their freshwater habitat.

Figure 2: Map of Neuse River Waterdog’s Confirmed and Predicted Presence

14 News Release, Duke Energy, Duke Energy update on H.F. Lee Power Plant in Goldsboro, N.C. (Oct. 14, 2016), https://news.duke-energy.com/releases/duke-energy-update-on-h-f-lee- power-plant-in-goldsboro-n-c. 15 Duke Energy, Cenospheres Observed in Low Lying Area, https://news.duke- energy.com/file?fid=58068d0e2cfac208f35d8d37 (last accessed Feb. 23, 2017). 16 AJ Janavel, Coal ash spills in Wayne County after Hurricane Matthew, CBS North Carolina (Oct. 19, 2016), http://wncn.com/2016/10/19/coal-ash-spills-in-wayne-county-after- hurricane-matthew/. 17 News Release, Waterkeeper Alliance, Dangerous Metals Found in Latest Duke Energy Coal Ash Spill (Oct. 22, 2016), available at http://www.ecowatch.com/duke-energy-coal-ash-spill- 2058750746.html. 18 Id.

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Source: Biodiversity and Spatial Information Center; North Carolina Gap Analysis Project (http://www.basic.ncsu.edu/).

Figure 3: Location of Duke Energy H.F. Lee Facility Source: Google Maps.

Figure 4: Locations of Coal Ash Spill and Dam Failure

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Source: Peter Harrison/Waterkeeper Alliance

d. The Atlantic Coast Pipeline and Supply Header Project

The proposed Atlantic Coast Pipeline will threaten water quality, and thus the Neuse River waterdog, by crossing 343 bodies of water in North Carolina, including the Neuse and Tar Rivers, Swift Creek (an outstanding resource water), Fishing Creek, Little River as well as others. The crossings will occur via horizontal directional drilling, as well as wet and dry ditching. In the draft Environmental Impact Statement, the Federal Energy Regulatory Commission (FERC) stated that “the Neuse River waterdog is found within the ACP project area in the Neuse and Tar-Pamlico drainage basin in Halifax, Nash, Wilson, and Johnston Counties, North Carolina.19 Additionally, suitable habitat was identified at 19 water-body crossing locations, and presence was confirmed at 4 water-body crossing locations.20 One water-body crossing still has not been surveyed due to lack of permission by the private landowner, but it was expected to be surveyed February 2017.21 The construction of the crossings could negatively impact Neuse River Waterdogs by degrading their natural

19 Federal Energy Regulatory Commission, Atlantic Coast Pipeline and Supply Header Project: Draft Environmental Impact Statement, Volume I, 4-182, available at https://www.ferc.gov/industries/gas/enviro/eis/2016/12-30-16-DEIS/volume-I.pdf (December 2016). 20 Id. 21 Id.

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habitat and disrupting their natural behaviors. The pipeline crossings would also put the waterdogs at risk from pollution or degradation from pipeline ruptures or spills.

II. Pollution

Neuse River waterdogs can be locally common but impacted by pollution in other localities. Though a survey conducted between 1978 and 1980 demonstrated apparently healthy populations in the species historical range, severely polluted streams have lost their waterdog populations (AmphibiaWeb 2017). Because high levels of pollution eliminate Neuse River waterdog populations, low levels of pollution may reduce abundance in existing populations (AmphibiaWeb 2017).

Pesticide and PCB residues, including DDE, DDD, dieldrin cis-chlordane, trans-nonachlor, and PCP 1254, have been reported in Neuse River waterdogs from Piedmont and Coastal Plain sites (AmphibiaWeb 2017).

Likewise, many of the waterways inhabited by the Neuse River Waterdog have shown signs of pollution or been designated as pollution impaired. The Final 2014 list of Category 5 Clean Water Act impaired waters included 178 waterways in the Neuse river basin and 106 waterways in the Tar-Pamlico river basin (NDEQ 2014a). The Draft 2016 list included 176 impaired waterways in the Neuse river basin and 114 impaired waterways in the Tar-Pamlico river basin (NDEQ 2016). Many waterways near city centers such as Raleigh or Durham were designated impaired based on one or more water quality factor (NDEQ 2014a). For example, in 2012 Crabtree Creek exceeded criteria for Mercury PCB presence in fish tissue (NDEQ 2014a).

III. Inadequacy of Existing Regulatory Mechanisms

Neuse River waterdogs depend on natural quality and quantities of water flowing through the waterways in their range, which North Carolina laws do not adequately regulate or protect. North Carolina is still largely based on a riparian water use system, rather than some form of regulated riparianism, which would provide more protection for sufficient flows to support Neuse River waterdogs and their habitat. North Carolina does not have a state water plan, though one is in development (Baer and Ingle 2016 at 56).

With regard to water budgeting, North Carolina has only begun to analyze the needs of each basin. In 2010, North Carolina’s legislature required the North Carolina Department of Environmental Quality (NCDEQ) to develop basin-wide hydrologic models, including information about water withdrawals, capacity of

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water sources, projected future water use, ecological flows,22 and required instream flows23 (Baer and Ingle 2016 at 13). The purpose of the model was to allow the state to evaluate proposed water transfers on the source waters and to predict when the water yield would not meet the intended withdrawal or when ecological flow may be adversely affected (Baer and Ingle 2016, at 13). So far, models have only been completed for 5 of the 17 basins in North Carolina (Baer and Ingle 2016 at 13)

Despite movement on the research front, North Carolina’s regulations for water withdrawals are weak and fail to protect the natural characteristics of the state’s waterways and aquatic habitats. North Carolina does not require permitting for water withdrawals. Rather, certain withdrawals are required to register (100,000 gallons per day or more) while others are exempt but “encouraged to do so” (Baer and Ingle 2016 at 20).24 Although North Carolina’s Water Use Act authorizes the state to limit or prohibit withdrawals in designated “capacity use areas” where cumulative use of groundwater and surface water threaten their sustainability, only two capacity use areas have ever been designated, and they were for groundwater resources (Baer and Ingle 2016 at 20–21).25 In those two capacity use areas, the Environmental Management Commission is only authorized to prohibit withdrawals measuring more than 100,000 gallons-per-day from increasing their withdrawals over a certain limit, and to limit the amount of water withdrawn under any new state- issued permit (Baer and Ingle 2016 at 21).

Finally, although North Carolina has a scientific process to determine environmental flow criteria, as well as recommendations,26 it does not have water withdrawal provisions or water quality standards to protect flow (Baer and Ingle 2016 at 32, 36). Consequently, the state is not implementing flow criteria or any other regulatory protection for flows.

North Carolina’s deficient water-use laws, policies, and plans threaten the Neuse River waterdog currently and in the future. Neuse River waterdogs need sufficient, clean water to survive within their range. The lack of water-use regulations will lead to situations where too much water is removed from the waterways, particularly during times of drought, leading to stress or mortality.

22 Ecological flow encompasses the quantity, timing, and quality of water flow needed to sustain natural freshwater and estuarine ecosystems that depend on the flow, as well as human livelihoods that depend on those ecosystems (Baer and Ingle 2016 at 28). 23 Instream flow is the water flowing in a stream channel at any time of year (Baer and Ingle 2016 at 28). 24 See N.C. General Statute, § 143-215.22H(a). 25 See id. § 143-215.13. 26 See N.C. Session Law 2010-143; N.C. Gen. Stat. § 143-355(o)(4) (tasking the Department of Environment and Natural Resources (now Department of Environmental Quality) to characterize the “ecology [of] river basins and identify the flow necessary to maintain ecological integrity.”).

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Furthermore, as water becomes scarcer, pollutants will become concentrated in the remaining water, thus threatening waterdogs and their habitat with high concentrations of pollutants.

IV. Conclusion

The Neuse River waterdog is a unique species known from only a small area in North Carolina. Despite existing regulatory mechanisms intended to protect wildlife and environmental quality, the waterdog continues to be threatened by habitat loss and degradation, pollution, climate change, and other impacts. Accordingly, the Neuse River waterdog and its habitat require the robust protections of the Endangered Species Act.

Thank you for taking this additional information into consideration. Please note that I included PDF copies of the articles cited herein (submitted via U.S. Mail), and these should be included in the agency’s record. Also please do not hesitate to contact me if the Center can be of further help during the Service’s status review for this species.

Sincerely,

Elise Pautler Bennett Reptile and Amphibian Staff Attorney Center for Biological Diversity PO Box 2155 St. Petersburg, Florida 33731 (727) 755-6950 [email protected]

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LITERATURE CITED

AmphibiaWeb. 2017. University of California, Berkeley, CA, USA. Accessed 14 Feb 2017.

Baer, K. and A. Ingle. 2016. Protecting and Restoring Flows in Our Southeastern Rivers: A Synthesis of State Policies for Water Security and Sustainability, available at http://www.rivernetwork.org/wp- content/uploads/2017/01/River-Network-Protecting-Restoring-Flows-in-SE- Rivers.pdf.

Braswell, A. and G. Hammerson. 2004. Necturus lewisi. The IUCN Red List of Threatened Species 2004: e.T59432A11940982. http://dx.doi.org/10.2305/IUCN.UK.2004.RLTS.T59432A11940982.en. Downloaded on 19 October 2016.

Burkholder, J, B. Libra, P. Weyer, S. Heathcote, D. Kolpin, P.S. Thorne, and M. Wichman. 2007. Impacts of Waste from Concentrated Animal Feeding Operations. Environmental Health Perspectives 115(2):308–312.

Carter, L. M., J. W. Jones, L. Berry, V. Burkett, J. F. Murley, J. Obeysekera, P. J. Schramm, and D. Wear, 2014: Ch. 17: Southeast and the Caribbean. Climate Change Impacts in the United States: The Third National Climate Assessment, J. M. Melillo, Terese (T.C.) Richmond, and G. W. Yohe, Eds., U.S. Global Change Research Program, 396-417. doi:10.7930/J0NP22CB.

Castro, J. 2003. Geomorphologic Impacts of Culvert Replacement and Removal: Avoiding Channel Incision. USFWS – Oregon Fish and Wildlife Office, Portland, Or., available at https://www.fws.gov/oregonfwo/ExternalAffairs/Topics/Documents/Geomorp hicImpactsOfCulvertReplacementAndRemovalGuidelines.pdf.

Doyle, M.W., E.H. Stanley, C.H. Orr, A.R. Selle, S.A. Sethi, and J.M. Harbor. Stream ecosystem response to small dam removal: Lessons from the Heartland. Geomorphology 71:227–244.

Environmental Working Group and Waterkeeper Alliance, Exposing Fields of Filth, http://www.ewg.org/research/exposing-fields-filth (June 21, 2016).

Harden, S.L., 2015, Surface-water quality in agricultural watersheds of the North Carolina Coastal Plain associated with concentrated animal feeding operations: U.S. Geological Survey Scientific Investigations Report 2015–5080, 55 p., 7 apps., http://dx.doi.org/10.3133/sir20155080.

Harkness, J., B. Sulkin, A. Vengosh. 2016. Evidence for Coal Ash Ponds Leaking in Southeastern United States. Environmental Science and Technology, online June 10, 2016. DOI: 10.1021/acs.est.6b01727.

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Heaney, C.D., K. Myers, S. Wing, D. Hall, D. Baron, and J.R. Stewart. 2015. Source tracking swine fecal waste in surface water proximal to swine concentrated animal feeding operations. Sci. Total Environ. 511:676–683.

Heyes, A., C.L. Rowe, and P. Conrad. 2014. Differential Patterns of Accumulation and Retention of Dietary Trace Elements Associated With Coal Ash During Larval Development and Metamorphosis of an Amphibian. Arch. Environ. Contam. Toxicol. 66:78–85.

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