[Federal Register Volume 83, Number 2 (Wednesday, January 3, 2018)]
[Rules and Regulations]
[Pages 257-284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28386]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R4-ES-2016-0029 and FWS-R4-ES-2016-0031; 4500030113]
RIN 1018-BA78; RIN 1018-BA79
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Black Warrior Waterdog and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended for the Black Warrior waterdog (Necturus alabamensis)
and designate critical habitat. The effect of this regulation will be
to add this species to the List of Endangered and Threatened Wildlife
and designate critical habit for this species. In total, approximately
673 kilometers (420 miles) of streams and rivers in Blount, Etowah,
Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston
Counties, Alabama, fall within the boundaries of the critical habitat
designation.
DATES: This rule is effective February 2, 2018.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/daphne/. Comments,
materials, and documentation that we considered in this rulemaking will
be available by appointment, during normal business hours, at: U.S.
Fish and Wildlife Service, Alabama Ecological Services Field Office,
1208 Main Street, Daphne, AL 36526; by telephone 251-441-5184; or by
facsimile 251-441-6222.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for the critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R4-ES-2016-0031, and at the Alabama Ecological Services
Field Office (https://www.fws.gov/alabama) (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we
developed for this final rule will also be available at the U.S. Fish
and Wildlife Service website and Field Office set out above, and may
also be included in the preamble and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service (see ADDRESSES above). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
This document consists of: (1) A final rule to list the Black
Warrior waterdog as endangered and (2) a final critical habitat
designation for the Black Warrior waterdog.
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act, a
species may warrant protection through listing if it is endangered or
threatened throughout all or a significant portion of its range.
Listing a species as an endangered or threatened species can only be
completed by issuing a rule.
What this rule does. This rule will finalize the listing of the
Black Warrior waterdog (Necturus alabamensis) as an endangered species
and will finalize designation of critical habitat for the species under
the Act. We are designating critical habitat for the species in four
units, on public and private property totaling 673 kilometers (420
miles) of streams and rivers in Blount, Etowah, Jefferson, Lawrence,
Marshall, Tuscaloosa, Walker, and Winston Counties, Alabama. This rule
adds the Black Warrior waterdog to the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations at
50 CFR 17.11(h) and adds critical habitat for this species to 50 CFR
17.95(d).
The basis for our action. Under the Act, we may determine that a
species is endangered or threatened based on any of the following five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or
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predation; (D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence. We
have determined that the Black Warrior waterdog is endangered by
habitat loss and water quality degradation resulting from point source
and non-point source pollution, urbanization, legacy effects of past
forestry and other land use practices, surface coal mining,
sedimentation, and impoundments.
Under the Act, if we determine that any species is a threatened or
endangered species we must, to the maximum extent prudent and
determinable, designate critical habitat. Section 4(b)(2) of the Act
states that the Secretary shall designate and make revisions to
critical habitat on the basis of the best available scientific data
after taking into consideration the economic impact, national security
impact, and any other relevant impact of specifying any particular area
as critical habitat. The Secretary may exclude an area from critical
habitat if he determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species.
Economic analysis. We prepared an economic analysis of the impacts
of designating critical habitat. We published an announcement and
solicited public comments on the draft economic analysis (81 FR 69475,
October 6, 2016). The analysis found no significant economic impact of
the designation of critical habitat.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on our listing proposal. We also considered all comments and
information received from the public during the comment period.
Previous Federal Action
Please refer to the proposed listing rule (81 FR 69500) and the
proposed designation of critical habitat (81 FR 69475) for the Black
Warrior waterdog, both published October 6, 2016, for a detailed
description of previous Federal actions concerning this species.
Summary of Comments and Recommendations
In the proposed listing and critical habitat rules published on
October 6, 2016, we requested that all interested parties submit
written comments on the proposals by December 5, 2016. We also
contacted appropriate Federal and State agencies, scientific experts
and organizations, and other interested parties and invited them to
comment on the proposal. Newspaper notices inviting general public
comment were published in the following: AL.com; The Blount Countian;
The Cullman Times; Daily Mountain Eagle; Decatur Daily; Moulton
Advertiser; Northwest Alabamian; and The Times Record. We did not
receive any requests for a public hearing.
Peer Reviewer Comments
In accordance with our peer review policy published in the Federal
Register on July 1, 1994 (59 FR 34270), and our August 22, 2016,
memorandum updating and clarifying the role of peer review of listing
actions under the Act, we solicited expert opinions from five
knowledgeable individuals with scientific expertise that included
familiarity with the species and the geographic region in which the
species occurs, the species' habitat and biological needs, and
conservation biology principles. We received responses from four of the
peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Black Warrior waterdog. The peer reviewers generally concurred with
our methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final listing and
critical habitat rule. Peer reviewer comments are summarized below and
incorporated into the final rule as appropriate.
(1) Comment: Two reviewers stated that one of the proposed units,
Lye Branch (Tuscaloosa County), should be removed from the critical
habitat designation since the specimens collected there were not Black
Warrior waterdog (Necturus alabamensis) but another species of
Necturus, the Gulf Coast waterdog (N. beyeri).
Our Response: Based on the information provided, we have removed
the Lye Branch unit from the designation in our critical habitat final
rule. See Summary of Changes from the Proposed Rule, below, for more
information.
(2) Comment: Several peer reviewers recommended that additional
units be included in the critical habitat designation. Three peer
reviewers recommended adding Clear Creek (Winston County), and two of
those peer reviewers also recommended the addition of Turkey Creek
(Jefferson County) to the critical habitat designation. One peer
reviewer recommended ``other headwater streams, as not to overlook
streams potentially important to the recovery.'' All three peer
reviewers noted that these other areas have suitable habitat and
potentially support (or may in the future support) the species and
would be crucial to the recovery of the Black Warrior waterdog.
Our Response: The streams mentioned by the commenters are
encompassed within the species' historical range, the upper Black
Warrior Basin. However, the Black Warrior waterdog has never been
documented in these headwater streams this far up in the basin,
although some lower segments of these streams may contain suitable
habitat. Since they do not provide connectivity between occupied sites
for genetic exchange, and therefore it is unknown if a population of
the species could be successfully reestablished in an area that never
had waterdogs, we determined that these sites were not essential to the
conservation of the species (see response to comment 11 below).
(3) Comment: One Federal agency and some public commenters
expressed concern about the use of eDNA. The concern relates to the
potential for ``false positives'' and potential limitations of the use
of eDNA as a surrogate for species occurrence, as well as whether the
use of eDNA warrants consideration as the best science to support both
listing and designating critical habitat.
Our Response: Positive eDNA detections indicate that the DNA of the
target species was present in the water sample (at the collection
location), but it does not definitively reveal whether the species is
still present. Studies on decay rate of eDNA indicate that it remains
detectable for 2-3 weeks following release (Dejan et al. 2011), and, in
using this guideline, we assume that the organismal source (Black
Warrior waterdog) was present in the stream within the prior 2-3-week
time window. Information that eDNA cannot provide is abundance of
target species, whether the eDNA was derived from a living or dead
individual(s), or if the population is viable.
We recognize that detection of eDNA does not confirm species'
current presence with absolute certainty, because the target species
may have died or moved from the sampled area. Additionally, a false
positive, assuming presence of the targeted live organism at a site
when it is absent, can occur if the eDNA was transported to the site
via a
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flood, or transferred between drainages by human collectors. However,
because eDNA persists for only a few weeks, the frequency of such false
positives is likely low. A false positive could also occur if the eDNA
in a sample was from a closely related species and that eDNA was not
distinguishable from Black Warrior waterdog eDNA. However, researchers
have identified and applied eDNA markers unique to the Black Warrior
waterdog that are distinct from markers in other Necturus species
(e.g., de Souza et al. p. 5 and S2), thus avoiding species
misidentification.
Since the Black Warrior waterdog is difficult to capture, sampling
for eDNA in the historical range of the species is an appropriate tool,
bolstering confidence in assessing whether occupancy is likely. We used
eDNA to narrow our focus on sites where additional sampling was more
likely to capture live waterdogs, but we are not designating any
streams as critical habitat, nor are we determining listing status,
solely based on eDNA. That said, based on the comment, we have added
more discussion about eDNA to the final rule.
(4) Comment: A Federal agency was concerned that our economic
analysis may have been an underestimation of the costs associated with
consultations under the Act, as well as of the number of additional
consultations as a result of the listing and critical habitat
designation for the Black Warrior waterdog.
Our Response: The economic analysis estimates that the incremental
costs of critical habitat for the Black Warrior waterdog will be
limited to administrative costs of consultation. This is due to the
fact that all projects with a Federal nexus would already be subject to
section 7 requirements regardless of whether critical habitat is
designated due to the presence of the waterdog or other listed species
with similar conservation needs. In addition, possible project
modifications stemming from section 7 consultation are unlikely to be
affected by the critical habitat designation because (a) the species is
so closely associated with its aquatic habitat that there is unlikely
to be a difference between measures needed to avoid jeopardizing the
species in areas of occupied habitat and (b) in unoccupied areas, other
listed aquatic species are impacted by similar factors as the waterdog.
Specifically, there are 26 listed species that occur within the Black
Warrior River Basin, including 14 aquatic species and 2 plant species
that may be found within the critical habitat for the Black Warrior
waterdog. Eight of these listed species have critical habitat that
overlaps portions of the Black Warrior waterdog's critical habitat, and
the entire range of the threatened flattened musk turtle (Sternotherus
depressus) overlaps with the range of the Black Warrior waterdog.
Therefore, any activities with a Federal nexus will be subject to
section 7 consultation requirements regardless of the Black Warrior
waterdog critical habitat designation.
Based on the historical consultation rate for species that co-occur
or share habitat with the waterdog, the economic analysis estimates
that fewer than 2 formal consultations, 23 informal consultations, and
206 technical assistance efforts are likely to occur in a given year.
(5) Comment: A Federal agency noted that some of its operations
likely co-occur with proposed occupied and unoccupied critical habitat
for the Black Warrior waterdog, at stream crossings used to access
existing transmission line rights-of-way (ROWs) for maintenance
purposes and construction of new transmission line ROWs. The Federal
agency recommended that the Service specify suitable best management
practices (BMPs) at stream crossings to minimize or prevent impacts to
Black Warrior waterdog, so that actions at stream crossings either will
not affect or are not likely to adversely affect this species.
Our Response: For stream crossing access for ROW and new
transmission line construction, the Service will provide BMPs during
informal or formal consultation. The additional administrative costs of
such ROW projects with a Federal nexus are described above.
In accordance with policy, as published in the Federal Register on
July 1, 1994 (59 FR 34272), we added ``transmission line ROW
maintenance'' to the actions unlikely to result in a violation of
section 9 of the Act if carried out in accordance with existing
regulations (see Available Conservation Measures). These actions are
now stated in the rule as ``Normal agricultural practices,
silvicultural practices, and transmission line ROW maintenance,
including herbicide and pesticide use, which are carried out in
accordance with any existing regulations, permits, and label
requirements, and best management practices.''
State Comments
(6) Comment: A State agency and some private organizations provided
information on forestry compliance rates for BMPs and stream management
zones (SMZs) and the positive impact on water quality.
Our Response: We acknowledge the improvements and progress that
many agencies and organizations have made over the years in relation to
land use and certified BMPs, including a 98 percent compliance rate in
Alabama. We made changes to the listing and critical habitat
designation to reflect these recent improvements in certified BMPs and
forest management. We note that a majority of the adverse effects of
forestry on waterdog habitat (e.g., sedimentation, streambank and
channel modification) appear to be the legacy of activities conducted
prior to the existence of the Act and various other laws designed to
protect water quality and aquatic habitats.
Public Comments
(7) Comment: A commenter suggested that there is not sufficient
information on the Black Warrior waterdog's biology and ecological
relationships upon which to make a listing determination.
Our Response: We are required to make our listing determination
based on the best scientific and commercial data available at the time
of our rulemaking. We found that the Black Warrior waterdog warrants
listing as an endangered species under the Act, based on the severity
and immediacy of threats currently impacting the species. The overall
range has been significantly reduced, and the remaining habitat and
populations face threats from a variety of factors such as water
quality degradation and small populations that are isolated from each
other by unsuitable habitat created mainly by impoundments and
pollution (Factors A and E) acting in combination to reduce the overall
viability of the species. The risk of extinction is high because the
number of populations has decreased, and the remaining populations are
small, isolated, and have limited potential for recolonization (Factor
E).
(8) Comment: One commenter requested that the Black Warrior
waterdog be listed as threatened instead of endangered, due to lack of
information on the species' biology and needs.
Our Response: We considered the best scientific and commercial data
available regarding the Black Warrior waterdog to evaluate its status
under the Act and found that the species meets the definition of
endangered due to the species' contracted range, loss of habitat due to
water quality degradation (sedimentation, toxins, and nutrients),
fragmentation of the populations caused by impoundments, rangewide (not
localized) threats, and ongoing threats that are presently acting on
the species. A threatened species status is not
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appropriate for this species due to a reduction of suitable habitat
available for the species and the severity of the stressors that are
imminent and occurring rangewide, and are expected to continue into the
future, such that the species is in immediate danger of extinction.
Additionally, only two of the waterdog locations support strong numbers
of animals to the point they can be collected on a routine basis. At
the remaining sites surveyed since 1990, only one or two waterdogs have
been captured, which speaks to the current poor status of the species.
(9) Comment: One commenter suggested the relevance of the flattened
musk turtle as a surrogate species was not adequately explained.
Our Response: We used the flattened musk turtle as a surrogate
species because the Black Warrior waterdog and flattened musk turtle
occupy the same range and habitat, and similar factors influence the
habitat and conservation of each species. However, we did not rely
solely on the flattened musk turtle to discern the habitat needs of the
Black Warrior waterdog. We also relied on information about the Neuse
River waterdog (Necturus lewisi), a closely related species in the same
genus, because of its similar biology and life history, as well as
recently published Black Warrior waterdog research.
(10) Comment: One commenter noted that the lower 22.5 miles of
Locust Fork and 44.5 miles of Mulberry Fork, both of which were
proposed for designation as critical habitat, are navigable and used
for barge traffic. The commenter requested that we consider whether
those lower reaches exhibit the features of critical habitat for the
Black Warrior waterdog. The commenter also requested that we identify
measures to allow navigation maintenance activities ``without
unreasonable burdens of cost or time'' if Section 7 consultation or
Section 10 permitting is required.
Our Response: The Locust Fork critical habitat unit (Unit 2) is
occupied by the Black Warrior waterdog and contains the following
physical or biological features: Abundant rock crevices and rock slabs,
leaf litter, and instream flow with moderate velocity and continuous
daily discharge that allows for a longitudinal connectivity regime
consisting of both surface runoff and ground water sources, exclusive
of flushing flows caused by stormwater runoff, that are essential to
the conservation of the Black Warrior waterdog. We have removed the
Mulberry Fork unit (Unit 6 in the proposed rule), including its lower
44.5 miles from the final critical habitat rule. The Black Warrior
waterdog has been extirpated from Mulberry Fork, likely because
Mulberry Fork has incurred more habitat degradation in comparison to
Locust Fork, where the waterdog remains extant. In short, Locust Fork
meets the definition of critical habitat under the Act for occupied
habitat. Mulberry Fork, however, does not meet the definition under the
Act for unoccupied habitat as it is not essential for conservation of
the species and therefore, is not included as critical habitat in the
final rule (see our response to comment 11 below).
We would not expect direct effects to the species from navigation
maintenance activities because areas with suitable physical and
biological features in lower Locust Fork are close to the stream
margins, away from the navigation channel. Navigation maintenance
activities are unlikely to be affected by the critical habitat
designation any more than they would be by the listing of the species
because (a) the species is so closely associated with its aquatic
habitat there is unlikely to be a difference between measures needed to
avoid jeopardizing the species in areas of occupied habitat and (b) in
unoccupied areas, other listed aquatic species are impacted by similar
factors as the waterdog. Therefore, any activities with a Federal nexus
will be subject to section 7 consultation requirements and, if
necessary, section 10 permitting requirements to inform the
consultation, regardless of the Black Warrior waterdog critical habitat
designation.
(11) Comment: Several private organizations commented that our
proposal to designate unoccupied areas as critical habitat had not been
properly supported or explained in the proposed rule.
Our Response: In order to designate unoccupied areas, we are
required by section 3(5)(A) of the Act to determine that such areas are
essential for the conservation of the species. We determine from the
record whether any unoccupied areas are necessary to support the
species' recovery. The proposed rule outlined criteria for designation
of critical habitat, which included a consideration of unoccupied areas
that relied on the following criteria: (1) The importance of the stream
to the overall status of the species and the contribution to the future
recovery of the Black Warrior waterdog; (2) whether the area could be
restored to contain the necessary habitat to support the Black Warrior
waterdog; (3) whether the site provides connectivity between occupied
sites for genetic exchange; and (4) whether a population of the species
could potentially be reestablished in the area.
We received public comments indicating the Service inappropriately
evaluated these units for inclusion in critical habitat and did not
explain why these units were essential for the conservation of the
Black Warrior waterdog. In response to these comments, we reevaluated
the Lake Tuscaloosa, Lost Creek, and Mulberry Fork units, considering
the four criteria listed above and the conservation strategy for the
Black Warrior waterdog, and determined that our conclusion in the
proposed rule, that the three unoccupied units are essential for the
conservation of the Black Warrior waterdog, was in error.
Within the Lake Tuscaloosa unit, even though both of these sections
are considered to be in the historical range of the species, both are
isolated from each other and other populations of Black Warrior
waterdog by two large impoundments (Lake Tuscaloosa and Holt Lake), and
we had failed to consider this in the proposed rule. Upon further
review, based on these impoundments, we now conclude habitat
connectivity, one of the four criteria we considered in determining
whether unoccupied areas are essential for the conservation of the
species, is not met for the Lake Tuscaloosa unit. This lack of habitat
connectivity with occupied sites in turn affects the unit's
satisfaction of another criterion, the importance of the stream to the
overall status of the species and its contribution to future recovery.
Although this unit still contains suitable habitat in the upper reaches
and may play a role in the recovery of the species, we find that
because it does not provide habitat connectivity between occupied sites
to allow for genetic exchange it is not essential for the conservation
of the species.
Regarding the Lost Creek unoccupied unit, in a site assessment
completed in March 2000, habitat in Lost Creek was determined to be
poor to unsuitable water quality for the Black Warrior waterdog (Bailey
2000, pp. 7-8). This reduces the likelihood that a population of
waterdogs could be established in this unit. More importantly, like the
Lake Tuscaloosa unit, upon reevaluation we have determined that this
unit is isolated from other occupied areas by an impoundment (Lake
Tuscaloosa) and therefore lacks the connectivity to occupied stream
reaches, which in the proposed rule was one of the criteria for
determining that the area was essential for the conservation of the
species. Similarly, the importance of the stream to the overall status
of the species and
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the contribution to the future recovery are also reduced due to this
lack of habitat connectivity with occupied sites. While this unit still
contains somewhat suitable habitat in the upper reaches and may play a
role in the recovery of the species, we find that, because it does not
provide habitat connectivity between occupied sites to allow for
genetic exchange, it is not essential for the conservation of the
species.
Regarding the Mulberry Fork unit, as with the other two units we
have, upon reevaluation, determined that impounded areas at the
confluence of occupied tributary streams prohibit natural
recolonization of this unit. The lower reach of Mulberry Fork is
impounded by Bankhead Lake as far upstream as the mouth of Blackwater
Creek (Bailey 2000, p. 9). In a site assessment completed in March
2000, habitat was described as a sluggish, muddy, and impounded area at
the confluence with Sipsey Fork (Bailey 2000, p. 10). While this unit
does connect to the occupied Blackwater Creek unit, the large expanse
of impounded water provides a barrier to the Black Warrior waterdogs
expanding from the occupied unit into Mulberry Fork. Therefore, since
the Mulberry Fork unit is isolated from other occupied areas by
impounded areas of unsuitable habitat, it does not meet the
connectivity criteria we considered in determining whether unoccupied
areas are essential for the conservation of the species. The importance
of the stream to the overall status of the species and the contribution
to the future recovery are also reduced due to this lack of habitat
connectivity with occupied sites. While this unit still contains
somewhat suitable habitat in the upper reaches and may play a role in
the recovery of the species, we find that it does not provide habitat
connectivity between occupied sites to allow for genetic exchange and
is not essential for the conservation of the species.
Although the proposed units Lake Tuscaloosa, Lost Creek, and
Mulberry Fork may have some degree of suitable habitat in the upper
reaches and may be able to support the reintroduction of Black Warrior
waterdogs, in the proposed rule we incorrectly determined that these
areas were essential for the conservation of the species, as noted in
the public comments. However, we correctly identified these units as
providing habitat for reintroduction and future recovery activities.
Therefore, we have determined that these four units are not
essential for Black Warrior waterdog conservation and have not included
these units in this final critical habitat designation. Although we no
longer regard the unoccupied units (Lake Tuscaloosa, Lost Creek, or
Mulberry Fork) as essential for the conservation of the species, we
recognize that these areas may offer suitable habitat through
restoration for the Black Warrior waterdog and may be useful for ex
situ (offsite) conservation measures at a future time.
Summary of Changes From the Proposed Rule
We made the following significant changes to the rule based on peer
review and public comments: We have removed four units from the final
critical habitat designation--the Lye Branch, Lake Tuscaloosa, Lost
Creek, and Mulberry Fork units.
Based on further analysis after taking into consideration
information provided during the comment period, it was determined that
the Lye Branch stream segment (16 kilometers (10 miles)) (set forth in
the proposed rule as Unit 1) was not historically occupied by the Black
Warrior waterdog but by another species of waterdog. Based on this
information, we determined that the unit is outside the known
historical range of the Black Warrior waterdog.
As described in our response to Comment 11, we have also removed
the Lake Tuscaloosa unit, approximately 108 rkm (67 rmi) of stream and
river habitat (set forth in the proposed rule as Unit 2), the Lost
Creek unit, approximately 93 rkm (58 rmi) of stream and river habitat
(set forth in the proposed rule as Unit 4), and the Mulberry Fork unit,
approximately 183 rkm (114 rmi) of stream habitat (set forth in the
proposed rule as Unit 6) from the final critical habitat designation
because after further analysis we determined that those unoccupied
areas were not essential for the conservation of the species and
therefore did not fall within the definition of ``critical habitat.''
Summary of Biological Status
The Black Warrior waterdog is a large, aquatic, nocturnal
salamander that permanently retains a larval form and external gills
throughout its life (Conant and Collins 1998, pp. 419-420). Found only
in streams within the Black Warrior River Basin (Basin) in Alabama, the
waterdog inhabits streams above the Fall Line, which is the contact
zone between the Coastal Plain and the adjacent Piedmont physiographic
province. Due to their highly permeable skin (Duellman and Trueb 1986,
p. 197) and external gills, Black Warrior waterdogs are very sensitive
to declines in water quality.
Populations and Distribution
Historically, the waterdog was known from 11 sites, 2 of which have
been lost due to impoundments. Since 1990 (current), the waterdog has
been reported from 13 sites. These sites are in Blount (Blackburn Fork
of the Little Warrior River), Marshall (Slab Creek, tributary to Locust
Fork), Tuscaloosa (Yellow Creek, North River, Carroll Creek, Mulberry
Fork), Walker (Lost Creek, Little Blackwater Creek), and Winston
(Sipsey Fork, Blackwater Creek, Browns Creek, Brushy Creek, Capsey
Creek) Counties, Alabama. Each of the 13 sites verified as a Black
Warrior waterdog locality represents an individual population.
Information concerning the current status of Black Warrior waterdog
populations is limited. Only the Sipsey Fork and Brushy Creek
populations, in Bankhead National Forest (BNF), appear to be
maintaining numbers sufficient enough to be captured regularly. At
other sites surveyed since 1990, only one or two waterdogs have been
captured. In Sipsey Fork, 52 waterdogs were captured over a 3-year
period, representing 173,160 trap hours, a rate of 1 waterdog per 3,330
trap hours (Durflinger-Moreno et al. 2006, pp. 70-71). A high
proportion of sexually mature individuals were captured during this
period, suggesting that recruitment and survival rates of the young age
classes may be low in Sipsey Fork (Durflinger-Moreno et al. 2006, p.
79). More recently, in surveys from 2012 to 2016 (Godwin 2016, entire),
seven waterdogs were captured in Sipsey Fork (408 trap-nights; catch
per unit effort (CPUE) = 0.017 waterdogs per trap-night) and four were
captured in Brushy Creek (140 trap-nights; CPUE = 0.029). The density
of Black Warrior waterdogs in Sipsey Fork and Brushy Creek in BNF,
relative to the lower densities detected at other sites in the species'
range, indicates the importance of this federally owned land for the
species' recovery and long-term survival.
Because Black Warrior waterdogs are extremely difficult to detect
in surveys, little is known regarding the species' demography. However,
we may infer some of the characteristics of a healthy population based
on capture data from the most the robust extant population (Durflinger-
Moreno 2006, entire) in the Sipsey Fork drainage. We would expect a
healthy population at a minimum to have an adult sex ratio close to
1:1. Additionally, a stable population would be expected to have
larval, juvenile, and adult age classes present annually, as a measure
of stable recruitment and reproduction rates. Species' abundance
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data are lacking, but in 1938, during spring and fall, 135 specimens
were collected at a single site in Mulberry Fork (Bart et al. 1997, p.
193). In comparison, 52 waterdogs were captured in Sipsey Fork over
three years of sampling, in 1994, 1995 and 1997. Thus, based on these
historic and current data, and given the Sipsey Fork population is
likely depressed relative to historic populations, a recovered or
conserved species could be estimated to have aggregations of at least
100 individuals per year, represented by all age classes, and at
multiple sites within each currently occupied sub-basin in the Black
Warrior river.
The captures of four waterdogs in Brushy Creek confirmed the
accuracy of eDNA (environmental DNA, described below) previously
detected in Brushy Creek water samples (de Souza et al. 2016, p. 8). In
2013 and 2014, eDNA samples indicated Black Warrior waterdogs may still
present in Rush Creek (Brushy Creek tributary) and Locust Fork, and
newly found in Gurley Creek (Locust Fork tributary) and Yellow Creek
(Big Yellow Creek/Black Warrior River tributary), although no waterdogs
were captured at the time (Godwin 2014, pers. comm.). Similarly, in
2016, a Black Warrior waterdog was captured in Yellow Creek, validating
the results of the eDNA survey in that stream.
Detecting the presence of the Black Warrior waterdog is difficult,
presumably because the species currently occurs only at low densities.
The relationship between cumulative number of site visits and the
cumulative number of sites containing waterdogs indicated that 200
additional surveys would be needed to discover a single new locality
for the species (Guyer 1997, p. 4). This relationship is further
supported by the findings of de Souza (2016, p. 10), which indicated
that, at an occupied site, 10 and 32 eDNA replicate water samples in
the cool season and warm season, respectively, would be necessary for
95 percent detection probability of the waterdog.
Only through the use of eDNA have we been able to determine that
the waterdog is likely present at some historical locations.
Researchers use eDNA as a surveillance tool to monitor for the genetic
presence of an aquatic species. According to Strickler (2015, p. 1),
``. . . when an aquatic animal can't be seen or heard, it leaves traces
of itself in the water by shedding skin, excreting waste, releasing
gametes and decomposing. Investigators collect a water sample to detect
the target species' DNA and determine whether the species has recently
been in the water body.'' Positive eDNA detections indicate that the
DNA of the targeted species was present in a water sample at the
collection location but do not definitively tell us that the species is
still present. Studies on decay rate of eDNA indicate it remains 2 to 3
weeks following release (Dejean et al. 2011), and, in using this
guideline, we assume that the organismal source (Black Warrior
waterdog) was present in the stream within the prior 2- to 3-week time
window. Information that eDNA cannot provide is the abundance of the
target species, whether the eDNA was derived from living or dead
individuals, or if the population is viable.
To prevent incorrectly identifying presence of Black Warrior
waterdog based on eDNA when a similar species was present, de Souza et
al. (2016 p. 5 and S2) included DNA from similar Necturus species in
analyses of the eDNA samples from the Black Warrior drainage. Part of
the eDNA analyses included a primer search (primers are used to amplify
DNA samples) that identified the primers that combined with Black
Warrior waterdog DNA but not the DNA of non-target Necturus species (de
Souza et al. 2016, S2). Non-target species (those to avoid
misidentifying as Black Warrior waterdog) in the analyses were N.
lodingi, an undescribed species in Gulf drainages from Mobile Bay
eastward (Shelton-Nix, p. 200), mudpuppy, dwarf waterdog, and Gulf
Coast waterdog. Among the non-target species only the Gulf Coast
waterdog could potentially co-occur naturally at sites along the Fall
Line, since its range extends from the Coastal Plain to the Fall Line,
whereas the Black Warrior waterdog range extends from the Piedmont to
the Fall Line. It is also possible that mudpuppies could co-occur as a
result of introductions by human transport from the Tennessee River
drainage, which lies just north of Black Warrior drainage divide. In
summary, given the analytical design applied to the eDNA, it is
unlikely any samples were from Necturus species other than Black
Warrior waterdog.
Biology and Habitat
Black Warrior waterdogs are associated with stream depths of 1 to 4
meters (m) (3.3 to 13.1 feet (ft)), reduced sedimentation, and large
leaf packs (leaves that fall into streams accumulate in packs usually
behind branches, rocks, and other obstructions) supporting mayfly
(Ephemeroptera spp.) and caddisfly (Trichoptera spp.) larvae.
Except for habitat affinities, life-history data concerning the
Black Warrior waterdog and other species of Necturus waterdogs are
somewhat limited. As closely related species in the same genus, there
are general characteristics that all Necturus species share, such as
retention of the larval state (e.g., gills) as adults. As an example,
although geographically separated (allopatric), the Black Warrior
waterdog and the Neuse River waterdog both utilize high-gradient
streams that are above the Fall Line and contain hard substrate,
leafpacks, and macroinvertebrates. Because the two species likely
evolved in similar habitats, an influential factor in determining life-
history traits, we used the Neuse River waterdog as a surrogate to
decipher some of the biological and ecological attributes that have not
yet been determined for the Black Warrior waterdog. When such data were
lacking for the Neuse River waterdog and Black Warrior waterdog, we
relied on data from other Necturus species.
Summary of Factors Affecting the Species
The Act directs us to determine whether any species is an
endangered species or a threatened species because of any one of five
factors affecting its continued existence. In this section, we
summarize the factors affecting the Black Warrior waterdog to assess
the species' viability. For additional detail, see the proposed listing
rule (81 FR 69500, October 6, 2016).
Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
Water quality degradation is considered the primary reason for the
extirpation of the Black Warrior waterdog over much of its historical
range (Bailey 2000, pp. 19-20). Together with large impoundments
(discussed below), it is the predominant threat to the continued
existence of the species. Changes in water chemistry and flow patterns,
resulting in a decrease in water quality and quantity, have detrimental
effects on salamander ecology because they can render aquatic habitat
unsuitable. Substrate modification is also a major concern for aquatic
salamander species (Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34).
When interstitial spaces between substrates become compacted or filled
with fine sediment, the amount of available foraging habitat and
protective cover for salamanders is reduced, resulting in population
declines. Most streams surveyed for the Black Warrior waterdog showed
evidence of water quality degradation and were correspondingly
biologically depauperate, lacking the full complement of species that
would
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be expected under natural, undisturbed habitat conditions (Bailey 1992,
p. 2; Bailey 1995, p. 11; Durflinger-Moreno et al. 2006, p. 78).
Discharges
Contributors to water quality degradation in the Black Warrior
Basin include point source (end of pipe) discharges and runoff from
urban, mining, agricultural and, historically, forestry land uses
(Deutsch et al. 1990, pp. 1-62; Upper Black Warrior Technical Task
Force 1991, p. 1; O'Neil and Sheppard 2001, p. 2). These sources
contribute pollution to the Basin via sediments, fertilizers,
herbicides, pesticides, animal wastes, septic tank and gray water
leakage, and oils and greases. Pollution has a direct effect on the
survival of Black Warrior waterdogs, which, due to their highly
permeable skin (Duellman and Trueb 1986, p. 197) and external gills,
are very sensitive to declines in water quality.
Urbanization
Urbanization is a significant source of water quality degradation
that can reduce the survival of aquatic organisms, including the Black
warrior waterdog (Bowles et al. 2006, p. 119; Chippindale and Price
2005, pp. 196-197). Urban development can stress aquatic systems in a
variety of ways, including increasing the frequency and magnitude of
high flows in streams, increasing sedimentation, increasing
contamination and toxicity, and changing stream morphology and water
chemistry (Coles et al. 2012, pp. 1-3, 24, 38, 50-51). Sources and
risks of an acute or catastrophic contamination event, such as a leak
from an underground storage tank or a hazardous materials spill on a
highway, increase as urbanization increases.
Several researchers have examined the negative impact of
urbanization on stream salamander habitat, finding connections between
salamander abundances and levels of development within a watershed. A
study on the dusky salamander (Desmognathus fuscus) in Georgia (Orser
and Shure 1972, p. 1,150) found a decrease in stream salamander density
with increasing urban development. A similar relationship between
populations and urbanization was found for dusky salamander, two-lined
salamander (Eurycea bislineata), southern two-lined salamander (E.
cirrigera), and other species in North Carolina (Price et al. 2006, pp.
437-439; Price et al. 2012a, p. 198), Maryland, and Virginia (Grant et
al. 2009, pp. 1,372-1,375). Abundance of dusky and two-lined
salamanders was most closely related to the amount and type of habitat
within the entire watershed, as opposed to areas immediately adjacent
to the stream (Willson and Dorcas 2003, pp. 768-770).
Large population centers such as the cities of Birmingham,
Tuscaloosa, and Jasper contribute substantial runoff to the Black
Warrior Basin. The watershed occupied by these three cities contains
more industrial and residential land area than other river basins in
Alabama. Streams draining these areas have a history of serious water
quality problems, as described above. Entire species of fish, mussels,
and snails (Mettee et al. 1989, pp. 14-16; Hartfield 1990, pp. 1-8),
and populations of the flattened musk turtle (Service 1990, p. 3), have
been extirpated from large areas of the watershed primarily due to
water quality degradation.
Spills
Associated with urbanization is the development of transportation
systems, including roads, rails, airports, locks, and docks. Accidents,
crashes, and derailments, resulting in spills, occur along these
transportation corridors. Since 1990, more than 1,200 spills in the
Basin have been reported to the U.S. Coast Guard National Response
Center. One of several spills in the Basin took place in the Black
Warrior River in 2013. Approximately 164 gallons of crude oil were
accidently pumped into the river. Emergency response teams cleaned the
river, but a sheen of crude oil remained visible (Taylor 2013, entire).
The threat from spills remains unchanged.
Forestry
Runoff from forestry operations and road construction has been a
source of pollution in the Basin when certified BMPs were not followed
to protect streamside management zones (Hartfield 1990, pp. 4-6;
Service 2000, p. 13). Forestry activities that were poorly or
inadequately managed in the past can have long-lasting effects in the
high-gradient, highly erodible soils within the Basin, as seen by the
legacy effects on Bankhead National Forest (Laschet 2014, pers. obs.).
However, modern forestry operations in Alabama have a certified BMP
compliance of 98 percent and, therefore, mostly are not currently
significant contributors to nonpoint source pollution. According to
Alabama's BMPs for forestry, SMZs should be a width of 35 ft (50 ft for
sensitive areas) from the stream bank, providing a level of protection
to instream habitat. Recently, the forest industry has begun to self-
regulate SMZs through a third-party certification program in which
mills will not accept timber from foresters who do not comply with SMZ
requirements.
Surface Coal Mining
Surface coal mining represents another threat to the biological
integrity of streams in the Basin and has undoubtedly affected the
distribution of the Black Warrior waterdog (Bailey 1995, p. 10). Strip
mining for coal results in hydrologic disturbance (i.e., erosion,
sedimentation, decline in groundwater levels, and general degradation
of water quality) that affects many aquatic organisms (Service 2000, p.
12). Runoff from coal surface mining can generate pollution through
acidification, increased mineralization, and sediment loading. Impacts
are more often associated with past activities and abandoned mines,
since presently operating mines are required to employ environmental
safeguards established by the Federal Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) and the Clean Water
Act of 1972 (33 U.S.C. 1251 et seq.) (Service 2000, p. 12).
Coal mining in the Basin is currently a threat to the Black Warrior
waterdog. Abandoned mines that have been inadequately reclaimed will
continue to contribute pollutants to streams into the future. Recently,
new coal mines, which have the potential to discharge additional
pollutants into the waters in the range of the Black Warrior waterdog,
have been proposed in Sipsey Fork and Mulberry Fork (Dillard 2011,
pers. comm.; Alabama Surface Mining Commission 2012, pp. 1-4).
Impoundments
In addition to water quality degradation, creation of large
impoundments has reduced suitable habitat within the Basin. Two
historical populations of the Black Warrior waterdog, Black Warrior
River near Tuscaloosa and Mulberry Fork at Cordova, have been lost due
to impoundments. Impoundments behind Bankhead, Lewis, and Holt dams
have flooded thousands of hectares (acres) of habitat previously
considered suitable for the Black Warrior waterdog. The entire main
channel of the Black Warrior River, over 272 kilometers (km) (170 miles
(mi)), has been affected by impoundments (Hartfield 1990, p. 7), which
do not have the shallow, flowing water associated with the waterdog. As
a result, impoundments generally are unsuitable habitat for the
species, although on one occasion two waterdogs were found in the upper
end of Lewis Smith Reservoir (U.S. Forest Service record, in Godwin
2016, p. 5) where
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Sipsey Fork enters and stream habitat transitions to lake habitat. The
abundance of large predatory fish in impoundments further renders them
unsuitable for the Black Warrior waterdog.
Historically, Brushy Creek was a tributary of Sipsey Fork.
Construction of Lewis Smith Reservoir separated the flowing connection
between Brushy Creek and Sipsey Fork, essentially splitting the single
BNF population in two isolated halves. Impoundments have been
entrapments for waterdogs, isolating and inhibiting genetic exchange
between populations in tributaries no longer connected by suitable
flowing habitat.
Summary of Factor A
The Black Warrior waterdog has experienced substantial destruction,
modification, and curtailment of its habitat and range. Specific
species stressors include degradation of water quality and habitat from
point source discharges and runoff, urbanization, legacy effects of
poor forest management, surface coal mining, agriculture, and the
construction of dams and their impoundments, together affecting
hundreds of stream miles in the species' range. The amount of habitat
already lost amplifies the current and future threat from point and
nonpoint source pollution, accidental spills, and violation of
permitted discharges. Due to a reduction of suitable habitat available
for the species and the severity and magnitude of this stressor, we
consider the present or threatened destruction, modification, or
curtailment of habitat and range a threat to the Black Warrior
waterdog. While changes to land management and river operations have
reduced impacts to the river system, ongoing activities continue to
affect water quality.
Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Based on best available data, there is no evidence that
overutilization for commercial, recreational, scientific, or
educational purposes is a threat to the Black Warrior waterdog.
Factor C. Disease or Predation
No diseases or incidences of predation have been reported for the
Black Warrior waterdog. Also, there is no evidence of predation on
Necturus species by fish in creeks and streams as reported by Bart and
Holzenthal (1985, p. 406). Predation of adult mudpuppy (N. maculosus)
by fish, crayfish, turtles and watersnakes has been observed rarely
(Petranka 1998, p. 429), and is almost certainly an occurrence for
Black Warrior waterdogs as well. A study of dwarf waterdog (N.
punctatus) feeding behavior in the presence of predators indicated
movement of the species to leaf pack habitat was driven by food
availability rather than predator avoidance (Sollenberger 2013,
entire). Given the very infrequent observations of predation on
waterdogs and no reports of deleterious effects of predation on
Necturus species, we do not consider predation to be an important
factor influencing Black Warrior waterdog populations. Therefore, the
best available data do not indicate that disease or predation is a
threat to the Black Warrior waterdog in its preferred habitat outside
of impounded areas, which harbor greater densities of larger fish
predators and are more open than stream habitats, providing less cover
for avoiding potential predators such as birds.
Factor D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine whether existing regulatory
mechanisms are inadequate to address the threats to the Black Warrior
waterdog discussed under other factors. Section 4(b)(1)(A) of the Act
requires the Service to take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species.'' In relation to
Factor D under the Act, we interpret this language to require the
Service to consider relevant Federal, State, and Tribal laws and
regulations, and other such mechanisms that may minimize any of the
threats we describe in threat analyses under the other four factors, or
otherwise enhance conservation of the species. We give strongest weight
to statutes and their implementing regulations and to management
direction that stems from those laws and regulations. An example would
be State governmental actions enforced under a State statute or
constitution, or Federal action under statute.
The Federal Surface Mining Control and Reclamation Act of 1977
(SMCRA), as amended December 22, 1987, requires all permitted mining
operations to minimize disturbances and adverse impacts to fish,
wildlife, and related environmental values, as well as implement
enhancement measures where practicable. It further recognizes the
importance of land and water resources restoration as a high priority
in reclamation planning. However, the continued decline of many
species, including the flattened musk turtle, fishes, and a number of
mussels in the Black Warrior Basin, is often attributed to mining
activities (Dodd et al. 1988, pp. 55-61; Mettee et al. 1989, pp. 12-13;
Hartfield 1990, pp. 1-8; Bailey and Guyer 1998, pp. 77-83; Service
2000, pp. 12-13), even though SMCRA is in effect.
The Alabama Department of Conservation and Natural Resources
(ADCNR) recently added the Black Warrior waterdog to its list of non-
game State-protected species (ADCNR 2012, pp. 1-4). Although this
change will make it more difficult to obtain a collecting permit for
the species, it does not offer any additional protection for habitat
loss and degradation. The ADCNR also recognizes the Black Warrior
waterdog as a Priority 2 species of high conservation concern in its
State Wildlife Action Plan due to its rarity and restricted
distribution (ADCNR 2005, p. 298). However, this designation also does
not offer any regulatory protections.
Alabama Department of Environmental Management (ADEM) has
established minimum water-quality standards for some occupied stream
segments within the Black Warrior River drainage under the authority of
the Clean Water Act of 1972. These standards are believed to be
protective of aquatic species. In Locust Fork, Mulberry Fork, and other
tributaries of the Black Warrior River occupied by the Black Warrior
waterdog, a combined total of 275 km (171 mi) have been identified on
the Alabama 303(d) List (a list of water bodies failing to meet their
designated water-use classifications) as impaired by siltation and
nutrients (ADEM 2010, pp. 1-3). The sources of these impairments have
been identified as runoff from agricultural fields, abandoned surface
mines, and industrial or municipal sites. Multiple stream reaches
within the occupied habitat of the Black Warrior waterdog (Locust Fork,
Mulberry Fork, Yellow Creek, and North River) fail to meet current
regulatory standards. Even with current regulations, surviving waterdog
populations are negatively affected by discharges, highway
construction, mining (current and unreclaimed sites), and other
activities with a Federal nexus (see discussion under Factor A, above).
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence
Demographic Factors
The remaining Black Warrior waterdog populations are isolated from
each other by unsuitable habitat created by impoundments, pollution,
and other
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factors as described under the Factor A discussion, above. Waterdog
population densities are low even in the relatively best localities,
and factors related to low population compound these threats.
Species that are restricted in range and population size are more
likely to suffer loss of genetic diversity due to genetic drift,
potentially increasing their susceptibility to inbreeding depression,
decreasing their ability to adapt to environmental changes, and
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). These low
population densities combined with fragmentation of habitat renders
populations extremely vulnerable to inbreeding depression (negative
genetic effects of small populations, e.g., Wright et al. 2008, p. 833)
and may reduce mating to a frequency insufficient to sustain
populations with newly recruited cohorts. Additionally, low population
densities reduce species' resiliency to catastrophic events such as
floods, droughts, or chemical spills (Black Warrior River Watershed
Management Plan n.d., p. 4.4), which may be compounded by the effects
of climate change in the future (see discussion below). It is likely
that some of the Black Warrior waterdog populations are below the
effective population size required to maintain long-term genetic and
population viability. The long-term viability of a species is based on
the conservation of numerous populations throughout its geographic
range (Harris 1984, pp. 93-104), which provides a level of redundancy
that reduces the risk of environmental change to the species as a whole
(Shaffer and Stein 2000, p. 310). The level of isolation and
fragmentation of Black Warrior waterdog populations makes natural
repopulation following localized extirpations virtually impossible
without human intervention.
Climate Change
Climate change has the potential to increase vulnerability of the
Black Warrior waterdog to random catastrophic events. Various emissions
scenarios suggest that, by the end of the 21st century, average global
temperatures are expected to increase 0.3 [deg]C to 4.8 [deg]C (0.5
[deg]F to 8.6[emsp14][deg]F), relative to the period 1986-2005 (IPCC
2013, p. 15). By the end of 2100, it is virtually certain that there
will be more frequent hot and fewer cold temperature extremes over most
land areas on daily and seasonal timescales, and it is very likely that
heat waves and extreme precipitation events will occur with a higher
frequency and intensity (IPCC 2013, pp. 15-16). In the southeastern
United States the frequency, duration, and intensity of droughts are
likely to increase (Thomas et al. 2009, p. 112). Droughts cause
decreases in water flow and dissolved oxygen levels and increases in
temperature in the river system. Studies of aquatic salamanders have
reported decreased occupancy, loss of eggs, decreased egg-laying, and
extirpation from sites during periods of drought (Camp et al. 2000, p.
166; Miller et al. 2007, pp. 82-83; Price et al. 2012b, pp. 317-319).
Determination of Status
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for
determining whether a species is an endangered species or threatened
species and should be included on the Federal Lists of Endangered and
Threatened Wildlife and Plants (i.e., ``listed''). Under section
4(a)(1) of the Act, we may list a species based on (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence. Listing actions may be warranted
based on any of the above threat factors, singly or in combination.
Determination of Status Throughout All of the Species' Range
We have carefully assessed the best scientific and commercial data
available regarding the past, present, and future threats to the Black
Warrior waterdog. Two populations have been extirpated due to
construction of dams that eliminated habitat on the Black Warrior River
(Factor A). Current threats to the species include habitat destruction
and degradation from point source pollution, runoff, and contaminant
spills from industry, urbanization, surface coal mining, agriculture,
and legacy effects of past forestry practices (Factor A). The small
size and level of fragmentation of remaining Black Warrior waterdog
populations leaves the species vulnerable to inbreeding depression and
reduced genetic fitness, natural stochastic events, including storms
and droughts (Factor E). Existing regulatory mechanisms have not led to
a reduction or removal of threats impacting the Black Warrior waterdog
(Factor D). These ongoing threats to the species are rangewide and
expected to continue in the future.
The Black Warrior waterdog is currently in danger of extinction
throughout its entire range due to the immediacy and severity of
threats currently impacting the species. The risk of extinction is high
because there are few (13) extant populations and the majority of the
populations are small and isolated. Several of these populations are
likely below the effective size needed to remain viable without human
intervention, owing to barriers to natural immigration. Therefore, on
the basis of the best available scientific and commercial information,
we list the Black Warrior waterdog as an endangered species. We find
that a threatened species status is not appropriate for this species
due to a reduction of suitable habitat available for the species and
the severity of the stressors that are imminent and occurring
rangewide, are ongoing, and are expected to continue into the future,
such that the species is in immediate danger of extinction.
Additionally, only two waterdog populations appear to be maintaining
numbers sufficiently large to be captured regularly. At the remaining
sites surveyed since 1990, only one or two waterdogs have been
captured, which speaks to the current poor status of the species.
Because of the contracted range and small population size of Black
Warrior waterdog and because the threats are occurring rangewide, are
ongoing, and are expected to continue into the future, we conclude that
the species is in immediate danger of extinction.
Determination of Status in a Significant Portion of the Range
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become endangered within the foreseeable future throughout all or a
significant portion of its range.'' The phrase ``significant portion of
its range'' is not defined by the Act, and a district court has held
that aspects of the Service's Final Policy on Interpretation of the
Phrase ``Significant Portion of Its Range'' in the Endangered Species
Act's Definitions of ``Endangered Species and ``Threatened Species''
(79 FR 37577 (July 1, 2014)) (SPR Policy) were not valid. Center for
Biological Diversity v. Jewel, No. 14-cv-02506-RM (D. Ariz. Mar. 29,
2017) (Pygmy-Owl Decision).
Although the court's order in that case has not yet gone into
effect, if the court denies the pending motion for reconsideration, the
SPR Policy would become vacated. Therefore, we have examined the plain
language of the Act
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and court decisions addressing the Service's application of the SPR
phrase in various listing decisions, and for purposes of this
rulemaking we are applying the interpretation set out below for the
phrase ``significant portion of its range'' and its context in
determining whether or not a species is an endangered species or a
threatened species. Because the interpretation we are applying is
consistent with the SPR Policy, we summarize herein the bases for our
interpretation, and also refer the public to the SPR Policy itself for
a more-detailed explanation of our reasons for interpreting the phrase
in this way.
An important factor that influences the question of whether an SPR
analysis is necessary here is what the consequence would be if the
Service were to find that the Black Warrior waterdog is in danger of
extinction or likely to become so throughout a significant portion of
its range. Two district court decisions have evaluated whether the
outcomes of the Service's SPR determinations were reasonable. As
described in the SPR Policy, both courts found that, once the Service
determines that a ``species''--which can include a species, subspecies,
or DPS under ESA Section 3(16)--meets the definition of ``endangered
species'' or ``threatened species,'' the species must be listed in its
entirety and the Act's protections applied consistently to all members
of that species (subject to modification of protections through special
rules under sections 4(d) and 10(j) of the Act). See Defenders of
Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1222 (D. Mont. 2010)
(delisting of the Northern Rocky Mountains DPS of gray wolf; appeal
dismissed as moot because of public law vacating the listing, 2012 U.S.
App. LEXIS 26769 (9th Cir. Nov. 7, 2012)); WildEarth Guardians v.
Salazar, No. 09-00574-PHX-FJM, 2010 U.S. Dist. LEXIS 105253, 15-16 (D.
Ariz. Sept. 30, 2010) (Gunnison's prairie dog). The issue has not been
addressed by a Federal Court of Appeals.
Consistent with the district court case law, we interpret that the
consequence of finding that the Black Warrior waterdog is in danger of
extinction or likely to become so throughout a significant portion of
its range would be that the entire species would be listed as an
endangered species or threatened species, respectively, and the Act's
protections would be applied to all individuals of the species wherever
found. Thus, the ``throughout all'' phrase and the SPR phrase provide
two independent bases for listing. We note that in the Act Congress
placed the ``all'' language before the SPR phrase in the definitions of
``endangered species'' and ``threatened species.'' This suggests that
Congress intended that an analysis based on consideration of the entire
range should receive primary focus. Thus, the first step we undertook,
above, in our assessment of the status of the species was to determine
its status throughout all of its range. Having determined that the
species is in danger of extinction throughout all of its range, we now
examine whether it is necessary to determine its status throughout a
significant portion of its range.
We conclude that in this situation we do not need to conduct an SPR
analysis. This conclusion is consistent with the Act because the
species is currently in danger of extinction throughout all of its
range due either to high-magnitude threats across its range, or to
threats that are so high in particular areas that they severely affect
the species across its range. Therefore, the species is in danger of
extinction throughout every portion of its range, and an analysis of
whether the species is in danger of extinction or likely to become so
throughout any significant portion of its range would be redundant and
unnecessary. In addition, because the phrase ``significant portion of
its range'' (SPR) could provide a second and independent basis for
listing the Black Warrior waterdog in its entirety, an SPR analysis
could would be either unnecessary or confusing. An SPR analysis could
lead to a conclusion that, in addition to being an ``endangered
species'' because of its status throughout all of its range, the Black
Warrior waterdog is also an ``endangered species'' or ``threatened
species'' because of its status throughout a significant portion of its
range. The former clearly would be an unnecessary finding, because we
have already determined that the species is an ``endangered species''
because of its status throughout all of its range. The latter would
create confusion because it could lead to a conclusion that the species
warrants listing both as an endangered species (because of its status
throughout all of its range) and as a threatened species (because of
its status in the SPR). We accordingly conclude that we do not need to
conduct further analysis of whether the Black Warrior waterdog is in
danger of extinction or likely to become so in the foreseeable future
throughout a significant portion of its range.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing actions results in public
awareness and conservation by Federal, State, Tribal, and local
agencies; private organizations; and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies and the prohibitions against certain activities are
discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline,
shortly after a species is listed, and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
downlisting or delisting, and methods for monitoring recovery progress.
Recovery plans also establish a framework for agencies to coordinate
their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Alabama Ecological Services Field Office (see
ADDRESSES).
Implementation of recovery actions generally requires the
participation of a
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broad range of partners, including other Federal agencies, States,
Tribes, nongovernmental organizations, businesses, and private
landowners. Examples of recovery actions include habitat restoration
(e.g., restoration of native vegetation), research, captive propagation
and reintroduction, and outreach and education. The recovery of many
listed species cannot be accomplished solely on Federal lands because
their range may occur primarily or solely on non-Federal lands. To
achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands.
Following publication of this listing rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Alabama
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the Black Warrior waterdog.
Information on our grant programs that are available to aid species
recovery can be found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Black Warrior waterdog. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of any endangered or
threatened species or destroy or adversely modify its critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency must enter into consultation
with the Service.
Federal agency actions within Black Warrior waterdog habitat that
may require consultation as described in the preceding paragraph
include management and any other landscape-altering activities on
Federal lands administered by the Service, U.S. Forest Service, and
Bureau of Land Management; issuance of section 404 Clean Water Act
permits by the U.S. Army Corps of Engineers; construction and
maintenance of gas pipeline and power line rights-of-way by the Federal
Energy Regulatory Commission; construction and maintenance of roads or
highways by the Federal Highway Administration; land management
practices supported by programs administered by the U.S. Department of
Agriculture; Environmental Protection Agency pesticide registration;
and projects funded through Federal loan programs which include, but
are not limited to, roads and bridges, utilities, recreation sites, and
other forms of development.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any listed species. It is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. Certain exceptions apply to employees of the
Service, the National Marine Fisheries Service, other Federal land
management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.32. With regard to
endangered wildlife, a permit may be issued for scientific purposes, to
enhance the propagation or survival of the species, and for incidental
take in connection with otherwise lawful activities. There are also
certain statutory exemptions from the prohibitions, which are found in
sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of species. Based on
the best available information, the following actions are unlikely to
result in a violation of section 9, if these activities are carried out
in accordance with existing regulations and permit requirements; this
list is not comprehensive:
(1) Normal agricultural practices, silvicultural practices, and
transmission line ROW maintenance, including herbicide and pesticide
use, which are carried out in accordance with any existing regulations,
permit, and label requirements, and certified best management
practices; and
(2) Normal residential development and landscape activities, which
are carried out in accordance with any existing regulations, permit
requirements, and best management practices.
Based on the best available information, the following activities
may potentially result in a violation of section 9 the Act; this list
is not comprehensive:
(1) Unauthorized introduction of nonnative species that compete
with or prey upon the Black Warrior waterdog;
(2) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens of this taxa, as defined by
section 10(h)(1) of the Act;
(3) Unauthorized destruction or alteration of Black Warrior
waterdog habitat that results in destruction or loss of leaf packs and
rocky substrate (rock crevices in the creek or stream);
(4) Unauthorized discharge of chemicals or fill material into any
waters in which the Black Warrior waterdog is known to occur; and
(5) Actions, intentional or otherwise, that would result in the
destruction of eggs or cause mortality or injury to hatchling,
juvenile, or adult Black Warrior waterdogs.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Alabama
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
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(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define ``geographical area
occupied by the species'' as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat). In identifying those physical and
biological features within an area, we focus on the specific features
that support the life-history needs of the species, including, but not
limited to, water characteristics, soil type, geological features,
prey, vegetation, symbiotic species, or other features. A feature may
be a single habitat characteristic, or a more complex combination of
habitat characteristics. Features may include habitat characteristics
that support ephemeral or dynamic habitat conditions. Features may also
be expressed in terms relating to principles of conservation biology,
such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we may designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Act (published in the Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section
515 of the Treasury and General Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated
Information Quality Guidelines, provide criteria, establish procedures,
and provide guidance to ensure that our decisions are based on the best
scientific and commercial data available. They require our staff, to
the extent consistent with the Act and with the use of the best
scientific and commercial data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
However, additional information sources may include the recovery plan
for the species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to
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designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. For
example, physical features might include gravel of a particular size
required for spawning, alkali soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species. In
considering whether features are essential to the conservation of the
species, the Service may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include but are not limited to space for
individual and population growth and for normal behavior; food, water,
air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
We derive the specific physical or biological features essential
for Black Warrior waterdog from studies of this species' habitat,
ecology, and life history as described below. Additional information
can be found in the proposed listing (81 FR 69500) and critical habitat
rule (81 FR 69475), both published in the Federal Register on October
6, 2016. We have determined that the following physical or biological
features are essential for Black Warrior waterdog.
Space for Individual and Population Growth and for Normal Behavior
The Black Warrior waterdog is found in the Black Warrior Basin
above the Fall Line, characterized by rocky habitat with little sand.
According to Mount (1981, p. 23), optimal habitat for the flattened
musk turtle, a species listed as threatened under the Act (52 FR 22418;
June 11, 1987) that has the same range as the waterdog, consists of a
``segment of a free flowing large creek or small river having the
following characteristics: (1) Drainage area between 50 and 500 square
miles, (2) depth averaging two feet, with vegetated shallows
alternating with pools at least three to four feet deep, (3) pools with
detectable current, (4) abundance of submerged rocks with crevices,
overlapping flat rocks, or accumulations of boulders, (5) abundant
molluscan fauna, (6) low silt load and minimal silt deposits, (7)
relatively low nutrient content and bacterial count, (8) moderate
temperatures (maximum 85 [deg]F), and (9) minimal pollution by
synthetic chemicals and toxic inorganic materials.'' Since the Black
Warrior waterdog and the flattened musk turtle occupy the same range
and similar habitats, this description of optimal habitat is applicable
to both species with the difference that the Black Warrior waterdog
finds refuge under boulders or rocks and in crevices, lays its eggs on
the underside of boulders, and uses deposited leaf packs (Bailey and
Guyer 2004, pp. 36-37; Durflinger-Moreno et al. 2006, pp. 69, 76, 78)
on the streambed, likely for foraging on aquatic insect larvae and for
sheltering.
Necturus species in general have similar feeding habits,
reproductive strategies, and physical characteristics. For example,
although geographically separated (allopatric), the Black Warrior
waterdog and the Neuse River waterdog both utilize high-gradient
streams that are above the Fall Line and contain hard substrate,
leafpacks, and macroinvertebrates. Because the two species likely
evolved in similar habitats, an influential factor in determining life-
history traits, we used the Neuse River waterdog as a surrogate to
determine some of the biological and ecological attributes that have
not yet been determined for the Black Warrior waterdog. When such data
were lacking for the Neuse River waterdog and Black Warrior waterdog,
we relied on data from other Necturus species. Furthermore, as
discussed above, because the flattened musk turtle has an identical
range to the Black Warrior waterdog, we relied on the turtle's known
habitat affinities to identify some of the habitat features important
to the Black Warrior waterdog.
The tributaries of the Neuse River have gradients similar to the
tributaries of the Black Warrior River Basin. According to Ashton
(1985, pp. 103-104), adult and juvenile Neuse River waterdogs use
habitats characterized by moderate stream flow and relatively high
dissolved oxygen concentrations, which is consistent with other
Necturus species found in southern States. Studies of the Neuse River
waterdog indicate that adult waterdogs use areas with large bedrock
outcrops, large boulders with sandy-gravel bottoms, and stream banks
with rock outcroppings.
The Black Warrior waterdog needs geomorphically stable streams with
substrate consisting of clay or bedrock with little sand, and
containing abundant rock crevices, rock slabs, and leaf packs. The
connectivity of these stream habitats is also essential in
accommodating growth and other normal behaviors of the Black Warrior
waterdog and in promoting gene flow within the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--Feeding habits of the Black Warrior waterdog are likely
similar to the feeding habits of Neuse River waterdog, since both
species are found in similar microhabitats. Both adult and juvenile
Neuse River waterdogs appear to be opportunistic feeders. Braswell and
Ashton (1985 pp. 22-27) found that larval waterdog diets consist
primarily of a variety of aquatic arthropods (orders Ostracoda,
Copepoda, Isopoda, and Amphipoda) with some insect larvae (orders
Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and
Coleoptera). Black Warrior waterdogs have been found in close
association with mayfly (Ephemeroptera) and caddisfly (Tricoptera)
larvae (Durflinger-Moreno et al. 2006). Adult Neuse River waterdog diet
was more expansive than the juvenile diet and included aquatic
arthropods, other aquatic and terrestrial invertebrates (earthworms,
centipedes, beetles, grubs), and aquatic and terrestrial vertebrates
(fish and salamanders) (Braswell and Ashton 1985, pp. 13, 24-25).
Since aquatic invertebrates are an important component of the Black
Warrior waterdog's diet, it is essential to also take into
consideration specific habitat requirements of these prey. Merrit and
Cummins (1996) described caddisfly and mayfly habitat as a wide variety
of standing and flowing water habitats, with the greatest diversity
being found in rocky-bottom streams with an abundance of oxygen. As a
result, they further identify the food sources for these aquatic
insects as a variety of detritus (leaf packs), algae, diatoms, and
macrophytes.
Water--As little is known about the specific water quality needs of
the Black Warrior waterdog, we evaluated and based the water quality
parameters on various factors, specifically Mount's (1983) description
of optimal habitat, Neuse River waterdog literature, prey species
requirements (insect larvae),
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Alabama Department of Environmental Management (ADEM) water quality
standards, and water quality requirements for currently listed aquatic
species found in the Basin, as follows: rush darter (Etheostoma
phytophilum), Alabama moccasinshell (Medionidus acutissimus), dark
pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis),
ovate clubshell (Pleurobema perovatum), triangular kidneyshell
(Ptychobranchus greenii), upland combshell (Epioblasma metastriata),
and southern acornshell (Epioblasma othcaloogensis).
Appropriate water quality parameters to support the Black Warrior
waterdog's primary prey base and other listed species in the Basin
include:
Water that lacks harmful levels of pollutants, including
inorganic contaminants such as copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 12-
15);
Water temperature not exceeding 85 [deg]F;
Dissolved oxygen 5.5 milligrams per liter (mg/L) or
greater;
Turbidity of an average monthly reading of 15
nephelometric turbidity units (NTUs; units to measure sediment
discharge) above background readings;
115 mg/L of total suspended solids (measured as mg/L of
sediment in water) or less; and
A specific conductance (ability of water to conduct an
electrical current, based on dissolved solids in the water) of no
greater than 225 microsiemens ([mu]S) per centimeter at 80 [deg]F
(October 10, 2012; 77 FR 61664).
The Black Warrior waterdog has similar hydrologic requirements as
those of the Neuse River waterdog, which are usually found in streams
greater than 15 meters (m) (50 feet (ft)) wide and deeper than 100
centimeters (cm) (3 ft) and are not found in streams where water flow
ceases under normal summer dry weather conditions (Braswell and Aston
1985, pp. 26-30). However, based on eDNA detections, the Black Warrior
waterdog could be using streams as narrow as 4 m (13 ft) wide (Godwin
2014, pers. comm.). In regard to instream flow, the Black Warrior
waterdog benefits from moderate stream velocity and continuous daily
discharge that allows for longitudinal connectivity (the pathway along
the entire length of a stream).
The quality of the chemical and physical environment of the streams
in the upper Black Warrior River Basin is essential to the survival of
the Black Warrior waterdog. Optimal water quality lacks harmful levels
of pollutants, including inorganic contaminants such as copper,
arsenic, mercury, and cadmium; organic contaminants such as human and
animal waste products; endocrine-disrupting chemicals; pesticides;
nitrogen, potassium, and phosphorus fertilizers; and petroleum
distillates (ADEM 2014, pp. 13-15). A decrease in water quality and
instream flow would cause a decline in the major food species for the
Black Warrior waterdog.
Natural variations of instream flows maintain the stream bottom
substrates, providing oxygen and other attributes to various
invertebrate life stages. Sedimentation contributes to turbidity of the
water and has been shown to reduce photosynthesis in aquatic plants,
suffocate aquatic insects, smother aquatic eggs, clog gills, and fill
in essential interstitial spaces used by aquatic organisms for spawning
and foraging. Sedimentation has been shown to wear away and suffocate
periphyton (organisms that live attached to objects underwater) and
disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and
Welch 2004, pp. 132-135).
Cover or Shelter
Suitable substrates for the Black Warrior waterdog are dominated by
clay or bedrock with little sand, and also contain abundant rock
crevices and rock slabs for retreats (shelter) and areas for egg
laying. Based on capture data, the Black Warrior waterdog utilizes leaf
pack for shelter from predators and as foraging areas for prey species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Little is known about the specific requirements of Black Warrior
waterdog's reproduction. Based on Neuse River waterdog research,
breeding sites are large bedrock outcrops or large boulders with sand
and gravel beneath them (Ashton 1985, p. 95). Data collected from the
Cincinnati Zoo (unpublished) indicate that the Black Warrior waterdog
has similar tendencies of depositing eggs under rock slabs or in rock
crevices, and the female guarding the eggs. Juvenile Black Warrior
waterdogs are often found in leaf packs in the stream.
Sedimentation can be destructive to Black Warrior waterdogs and
their habitat when it contains toxicants and is excessive. Bailey
(2000, p. 2) reported that Black Warrior waterdogs are virtually in
constant contact with the substrate and; therefore, also with any toxic
chemicals present. He also reported that juveniles and adults are
impacted by the exposure. Further, excessive sedimentation of the
crevices and leaf packs removes foraging, feeding, breeding, and
retreat areas for the Black Warrior waterdog (Laschet 2014, pers.
obs.).
Habitats Protected From Disturbance or Representative of the Historical
Geographical and Ecological Distributions of the Species
Currently, there are no areas that are undisturbed or that are
representative of the historical geographical and ecological
distribution of the species that the Black Warrior waterdog typically
inhabits. The Bankhead National Forest is an area that can reveal a
glimpse of representative historical geographical and ecological
features of the species' habitat and is currently considered the
stronghold of the species. Streams in this area typically are
geomorphically stable with substrate consisting of clay or bedrock with
little sand, and containing abundant rock crevices and rock slabs.
These streams also contain cool, clean, flowing water having a
dissolved oxygen level of 5.5 mg/L or higher; moderate water velocity;
aquatic macroinvertabrate prey items; leaf packs; and adequate water
quality (ADEM 2010, pp. 1-3).
In summary, based on the information described above, we have
determined that the following physical or biological features are
essential to the conservation of the Black Warrior waterdog.
(1) Geomorphically stable, medium to large streams (typically 4 m
(13 ft) wide or greater) with:
(a) Substrate consisting of clay or bedrock with little sand, and
containing abundant rock crevices, rock slabs, and leaf packs;
(b) Moderate water velocity; and
(c) Prey base of aquatic macroinvertebrates.
(2) Water that lacks harmful levels of pollutants, including
inorganic contaminants such as copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorus fertilizers; and petroleum distillates.
(3) Appropriate water quality parameters to support Black Warrior
waterdog and primary prey base, including:
(a) Water temperature not exceeding 85 [deg]F;
(b) Dissolved oxygen 5.5 mg/L or greater;
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(c) Turbidity of an average monthly reading of 15 NTUs above
background readings;
(d) 115 mg/L of total suspended solids or less; and
(e) A specific conductance of no greater than 225 [mu]S per
centimeter at 80 [deg]F.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of the Black Warrior
waterdog may require special management considerations or protections
to reduce the following threats: (1) Urbanization activities and
inadequate stormwater management (such as stream channel modification
for flood control or gravel extraction) that could cause an increase in
bank erosion; (2) significant changes in the existing flow regime
within the streams due to water diversion or withdrawal; (3)
significant alteration of water quality; (4) significant alteration in
quantity of groundwater, prevention of water percolating into the
aquifer recharge zone, and alteration of spring discharge sites; (5)
significant changes in stream bed material composition and quality due
to changes in stream flow characteristics, construction projects, and
maintenance activities; (6) off-road vehicle use; (7) sewer, gas, and
water easements; (8) bridge construction; (9) culvert and pipe
installation; and (10) other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Management activities that could ameliorate these threats include,
but are not limited to: Use of certified BMPs designed to reduce
sedimentation, erosion, and bank side destruction; select harvest of
trees along banks, and leaving 50 percent canopy cover (of deciduous
trees) along banks; moderation of surface and ground water withdrawals
to maintain natural flow regimes; increased use of stormwater
management and reduction of stormwater flows into the systems;
preservation of headwater springs and spring runs; regulation of off-
road vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
These management activities could protect the physical or
biological features essential for the conservation of the species by
eliminating, or reducing to negligible levels, the threats affecting
the physical and biological features of each unit. The major threats to
the Black Warrior waterdog habitat are sedimentation, water quality
degradation (increased nutrients, turbidity, and toxins), and
fragmentation from impoundments.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are designating critical
habitat in areas within the geographical area occupied by the Black
Warrior waterdog at the time of listing in 2017. We are not designating
any areas outside the geographic area occupied by the species because
we did not find any areas that were essential for the conservation of
the species (see explanation under response to comment 11, above).
For the purpose of designating critical habitat for the Black
Warrior waterdog, we defined the geographical area currently occupied
by the species. We used information from surveys and reports prepared
by the Alabama Department of Conservation and Natural Resources,
Alabama Geological Survey, Alabama Natural Heritage Program, Auburn
University, Alabama Power Company, U.S. Forest Service, Natural
Resources Conservation Service, and Service to identify the specific
locations occupied by the Black Warrior waterdog. Currently, occupied
habitat for the species is isolated and limited to four units. Within
these four units, the species is located within seven tributaries in
the Black Warrior River Basin. Three of the tributaries are on Bankhead
National Forest (Winston County) and include Sipsey Fork, Brushy Creek,
and Rush Creek. The other four tributaries are Locust Fork; Gurley
Creek, which feeds into Locust Fork (Blount and Jefferson Counties);
Blackwater/Browns Creek in Winston County; and Yellow Creek in
Tuscaloosa County (Godwin 2014, entire). We have determined that these
four units (which include all seven tributaries)--Sipsey Fork, Locust
Fork, Blackwater Creek, and Yellow Creek--meet the criteria for
designation as critical habitat. As discussed below, some of these
units contain all of the identified elements of physical or biological
features and support multiple life-history processes. Some units
contain only some elements of the physical or biological features
necessary to support the Black Warrior waterdog's particular use of
that habitat.
Mapping Black Warrior Waterdog Critical Habitat
In identifying critical habitat units for the Black Warrior
waterdog, we proceeded through a multi-step process. We obtained and
reviewed historical records for the Black Warrior waterdog's
distribution from Bankhead National Forest and Alabama Natural Heritage
Program, as well as both published and unpublished documentation from
our files. Once the historical range was determined, we looked at
whether the physical and biological features were present at these
historical sites. Then, we reviewed surveys conducted over the last 8
years, including surveys currently being undertaken. We conducted
species present-or-absent surveys of known and historical sites and
sampled and observed the habitat. Since the Black Warrior waterdog is
difficult to detect and capture, we contracted with Alabama Natural
Heritage Program and Auburn University to conduct sampling surveys
including the use of eDNA. With the survey results, we confirmed the
Black Warrior waterdog's distribution in the Black Warrior River Basin.
We determined occupied areas with data collected from surveys conducted
over the last 8 years to present. We considered areas that do not have
recent capture or sighting data to be unoccupied by the species.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We overlaid Black Warrior waterdog locations into a GIS
database. This provided us with the ability to examine slope,
elevation, geologic type, hydrologic factors, vegetation community, and
topographic features. These data points verified the previously
recorded elevation ranges for Black Warrior waterdog.
(2) In addition to the GIS layers listed above, we then excluded
impoundments and dams as barriers for the species, as described in
Physical or Biological Features, above.
(3) We then drew critical habitat boundaries that captured the
locations as discussed above. The final critical habitat designation
was then mapped using Projected Coordinate System,
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NAD 1983 UTM Zone 16N with a Projection of Transverse Mercator.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Black Warrior waterdog. The scale
of the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands would not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat streams that we have
determined are occupied at the time of listing and contain physical or
biological features to support life-history processes essential to the
conservation of the species.
Four units were designated based on one or more of the elements of
physical or biological features being present to support the Black
Warrior waterdog's life processes. Some units contained all of the
identified elements of physical or biological features and supported
multiple life processes. Some units contained only some elements of the
physical or biological features necessary to support the Black Warrior
waterdog's particular use of that habitat.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2016-0031, on the Service's
website at http://www.fws.gov/daphne/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT,
above).
Final Critical Habitat Designation
We are designating approximately 673 river kilometers (420 river
miles) in five units as critical habitat for the Black Warrior
waterdog. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the Black Warrior waterdog.
All of the areas designated as critical habitat for the Black
Warrior waterdog include stream and river channels within the normal
high water line.
Table 1 shows the occupancy status of each unit and units that
overlap with existing critical habitat units for other federally listed
species.
TABLE 1--Black Warrior Waterdog Critical Habitat Units and Existing Overlapping Critical Habitat Designation for
Federally Listed Species
----------------------------------------------------------------------------------------------------------------
Existing
Private Federal critical Total length
Unit Location ownership rkm/ ownership rkm/ habitat rkm/ rkm/rmi
rmi rmi rmi
----------------------------------------------------------------------------------------------------------------
1..................... Yellow Creek............ 30/19 .............. .............. 30/19
2..................... Locust Fork............. 391/243 .............. * 101/63 391/243
3..................... Blackwater Creek........ 128/80 .............. .............. 128/80
4..................... Sipsey Fork............. 11/7 113/71 ** 103/64 124/78
---------------------------------------------------------------
Totals............ ........................ 560/349 113/71 204/127 673/420
----------------------------------------------------------------------------------------------------------------
* Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis
perovalis), ovate clubshell (Pleurobema perovatum), upland combshell (Epioblasma metastriata), triangular
kidneyshell (Ptychobranchus greenii).
** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma
othcaloogensis), triangular kidneyshell.
We present brief descriptions of all the units, and reasons why
they meet the definition of critical habitat for the Black Warrior
waterdog, below. All units are within private ownership, except Unit 4,
which also includes Federal ownership.
Unit 1: Yellow Creek, Tuscaloosa County, Alabama
Unit 1 includes 30 rkm (19 rmi) of stream and river habitat. The
unit consists of the headwaters of Yellow Creek to Holt Lake. This area
is within the geographical area occupied at the time of listing (i.e.,
currently occupied). Godwin (2016, pers. comm.) reported a capture of a
Black Warrior waterdog in this area. This area contains the following
physical or biological features that are essential for the Black
Warrior waterdog: Abundant rock crevices and rock slabs, leaf litter,
and instream flow with moderate velocity and continuous daily discharge
that allows for a longitudinal connectivity regime inclusive of both
surface runoff and ground water sources and exclusive of flushing flows
caused by stormwater runoff.
Threats to the physical and biological features in Unit 1 that may
require special management considerations or protection include:
Agriculture, silviculture, and urbanization activities
that could result in increased bank erosion;
Significant changes in the existing flow regime due to
inadequate stormwater management, water diversion, or water withdrawal;
Significant alteration of water quality; and
Significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge and road construction and maintenance; culvert and pipe
installation; and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 2: Locust Fork, Blount, Etowah, Jefferson, and Marshall Counties,
Alabama
Unit 2 includes 391 rkm (243 rmi) of stream and river habitat. The
unit consists of the headwaters of Locust Fork to Bankhead Lake, from
the headwaters of Slab Creek to the confluence of Locust Fork, from the
headwaters of Blackburn Fork to the confluence of Locust Fork, and from
the headwaters of Gurley Creek to the confluence of Locust Fork. This
area is
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within the geographical area occupied at the time of listing (i.e.,
currently occupied). Based on a literature review by Bailey (2000, p.
1), Black Warrior waterdog specimens have been collected from the
Locust Fork area. Black Warrior waterdogs were also collected in the
upper Locust Fork in 2012 along with positive eDNA samples in this
area. This area contains the following physical or biological features:
Abundant rock crevices and rock slabs, leaf litter, and instream flow
with moderate velocity and continuous daily discharge that allows for a
longitudinal connectivity regime consisting of both surface runoff and
ground water sources, exclusive of flushing flows caused by stormwater
runoff, that are essential for the Black Warrior waterdog.
Threats to the physical and biological features in Unit 2 that may
require special management considerations or protection include:
Agriculture, silviculture, and urbanization activities
that could result in increased bank erosion;
Significant changes in the existing flow regime due to
inadequate stormwater management, water diversion, or water withdrawal;
Significant alteration of water quality; and
Significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge and road construction and maintenance; culvert and pipe
installation; and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 3: Blackwater Creek, Walker and Winston Counties, Alabama
Unit 3 includes 128 rkm (80 rmi) of stream and river habitat. The
unit consists of the headwaters of Blackwater Creek to the confluence
of Mulberry Fork, and from the headwaters of Brown Creek to the
confluence of Blackwater Creek. This area is within the geographical
area occupied at the time of listing based on a literature review by
Bailey (2000, p. 1). Black Warrior waterdogs were collected in Brown
Creek in 2006. Black Warrior waterdogs were likely still present based
on eDNA results (Godwin 2014, pers. comm.). This area contains the
following physical or biological features: Abundant rock crevices and
rock slabs, leaf litter, and instream flow with moderate velocity and
continuous daily discharge that allows for longitudinal connectivity
regime consisting of both surface runoff and ground water sources,
exclusive of flushing flows caused by stormwater runoff, that are
essential for the Black Warrior waterdog.
Threats to the physical and biological features in Unit 3 that may
require special management considerations or protection include:
Agriculture, silviculture, and urbanization activities
that could result in increased bank erosion;
Significant changes in the existing flow regime due to
inadequate stormwater management, water diversion, or water withdrawal;
Significant alteration of water quality; and
Significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge and road construction and maintenance; culvert and pipe
installation; and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Unit 4: Sipsey Fork, Lawrence and Winston Counties, Alabama
Unit 4 includes 124 rkm (78 rmi) of stream and river habitat. The
unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake,
from the headwaters of Brushy Creek to Lewis Smith Lake, from the
headwaters of Rush Creek to the confluence of Brushy Creek, and from
the headwaters of Capsey Creek to the confluence of Brushy Creek. This
area falls within the boundary of Bankhead National Forest, although
some areas are private inholdings.
This area is within the geographical area occupied at the time of
listing, based on recent captures (Godwin 2016, entire). This area
contains the following physical or biological features: abundant rock
crevices and rock slabs, leaf litter, and instream flow with moderate
velocity and continuous daily discharge that allows for longitudinal
connectivity consisting of both surface runoff and ground water
sources, exclusive of flushing flows caused by stormwater runoff, that
are essential for the Black Warrior waterdog.
Threats to the physical and biological features in Unit 4 that may
require special management considerations or protection include:
Agriculture, silviculture, and urbanization activities
that could result in increased bank erosion;
Significant changes in the existing flow regime due to
inadequate stormwater management, water diversion, or water withdrawal;
Significant alteration of water quality; and
Significant changes in stream bed material composition and
quality as a result of construction projects and maintenance
activities; off-road vehicle use; sewer, gas, and water easements;
bridge and road construction and maintenance; culvert and pipe
installation; and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a new definition of
destruction or adverse modification on February 11, 2016 (81 FR 7214).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the conservation of a listed species. Such alterations may include,
but are not limited to, those that alter the physical or biological
features essential to the conservation of a species or that preclude or
significantly delay development of such features.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or
[[Page 274]]
authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that result in a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the conservation of the Black Warrior waterdog. Such
alterations may include, but are not limited to, those that alter the
physical or biological features essential to the conservation of these
species or that preclude or significantly delay development of such
features. As discussed above, the role of critical habitat is to
support physical or biological features essential to the conservation
of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Black Warrior waterdog. These activities include,
but are not limited to:
(1) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals, biological pollutants, or heated effluents into
the surface water or connected groundwater at a point source or by
dispersed release (non-point source). These activities could alter
water conditions to levels that are beyond the tolerances of the
species' prey items and result in direct or cumulative adverse effects
to the Black Warrior waterdog and its lifecycle.
(2) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, channel alteration, timber harvest, off-road vehicle use,
and other watershed and floodplain disturbances. These activities could
eliminate or reduce the habitat necessary for the growth and
reproduction of the Black Warrior waterdog by increasing the sediment
deposition to levels that would adversely affect its ability to
complete its lifecycle.
(3) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, impoundment, road and bridge construction, mining,
dredging, and destruction of riparian vegetation. These activities may
lead to changes in water flows and levels that would degrade or
eliminate the Black Warrior waterdog and/or its habitat. These actions
can also lead to increased sedimentation and degradation in water
quality to levels that are beyond the tolerances of the Black Warrior
waterdog or its prey items.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the final
critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if she determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless she determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the statute, as well as the legislative history, is
clear that the Secretary has broad discretion regarding which factor(s)
to use and how much weight to give to any factor. In this final rule,
we have not considered any areas for exclusion from critical habitat.
[[Page 275]]
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, constitute
our draft economic analysis of the proposed critical habitat
designation and related factors (IEc 2015). The analysis, dated July
15, 2015, was made available for public review from October 6, 2016,
through December 5, 2016. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the Black Warrior waterdog
is summarized below and available in the screening analysis for the
Black Warrior waterdog (IEc 2015, entire), available at http://www.regulations.gov in Docket No. FWS-R4-ES-2016-0031.
The final critical habitat designation for the Black Warrior
waterdog is likely to result, annually, in less than 2 formal
consultations, 23 informal consultations, and 206 technical assistance
efforts related to silviculture, mining, impoundments, commercial and
residential development, pipelines, agriculture and other activities
that impact water quality. According to the finding in the screening
analysis, the administrative cost of addressing adverse modification in
the consultations is estimated to be between about $410 to $9,000 per
consultation. Accordingly, the incremental administrative cost is not
likely to exceed $150,000 annually. This designation of critical
habitat is not likely to cause more requirements under State or local
regulations, nor is it expected to have perceptional effects on the
markets.
Exclusions Based on Economic Impacts
As discussed above, the Service considered the economic impacts of
the critical habitat designation and the Secretary is not exercising
his discretion to exclude any areas from this designation of critical
habitat for the Black Warrior waterdog based economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Alabama Ecological Services Field
Office (see ADDRESSES) or by downloading from the internet at http://www.regulations.gov.
Exclusions Based on Impacts to National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), national-security or
homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2),
the Service must consider impacts on national security, including
homeland security, on lands or areas not covered by section
4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from
the designation areas for which DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns. No DoD
lands occur within or are affected by the designation.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, safe harbor agreements, or candidate conservation agreements with
assurances, or whether there are non-permitted conservation agreements
and partnerships that would be encouraged by designation of, or
exclusion from, critical habitat. In addition, we look at the existence
of tribal conservation plans and partnerships and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this final rule, we have determined that there are
currently no permitted conservation plans or other non-permitted
conservation agreements or partnerships for the Black Warrior waterdog,
and the final designation does not include any tribal lands or tribal
trust resources. We anticipate no impact on tribal lands, partnerships,
permitted or non-permitted plans or agreements from this critical
habitat designation. Accordingly, the Secretary is not exercising his
discretion to exclude any areas from this final designation based on
other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as
[[Page 276]]
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; and small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are required to evaluate the potential incremental impacts of
rulemaking only on those entities directly regulated by the rulemaking
itself, and therefore, not required to evaluate the potential impacts
to indirectly regulated entities. The regulatory mechanism through
which critical habitat protections are realized is section 7 of the
Act, which requires Federal agencies, in consultation with the Service,
to ensure that any action authorized, funded, or carried out by the
Agency is not likely to destroy or adversely modify critical habitat.
Therefore, under section 7 only Federal action agencies are directly
subject to the specific regulatory requirement (avoiding destruction
and adverse modification) imposed by critical habitat designation.
Consequently, it is our position that only Federal action agencies will
be directly regulated by this designation. There is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities are directly regulated by this
rulemaking, the Service certifies that the final critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Black Warrior waterdog conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of
[[Page 277]]
designating critical habitat for the Black Warrior waterdog in a
takings implications assessment. The Act does not authorize the Service
to regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that this
designation of critical habitat for the Black Warrior waterdog does not
pose significant takings implications for lands within or affected by
the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this final critical habitat designation with,
appropriate State resource agencies in Alabama. We received comments
from Alabama and have addressed them in the Summary of Comments and
Recommendations section of the rule. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the Black Warrior waterdog.
The designated areas of critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands affected by the designation.
References Cited
A complete list of all references cited is available on the
internet at http://www.regulations.gov and upon request from the
Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Alabama Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
[[Page 278]]
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245;
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Waterdog, Black
Warrior'' under ``AMPHIBIANS'' to the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Amphibians
* * * * * * *
Waterdog, Black Warrior.......... Necturus alabamensis Wherever found..... E 83 FR [Insert Federal
Register page where the
document begins], 1/3/
2018.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (d) by adding an entry for ``Black
Warrior Waterdog (Necturus alabamensis)'' in the same alphabetical
order that the species appears in the table at Sec. 17.11(h), to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Black Warrior Waterdog (Necturus alabamensis)
(1) Critical habitat units are depicted for Blount, Etowah,
Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston
Counties, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Black Warrior waterdog, which
describe a riverine system with habitat to support all life-history
stages of the Black Warrior waterdog, consists of the following
components:
(i) Geomorphically stable, medium to large streams (typically 4
meters (m) (13 feet (ft)) wide or greater) with:
(A) Substrate consisting of clay or bedrock with little sand, and
containing abundant rock crevices, rock slabs, and leaf packs;
(B) Moderate water velocity; and
(C) Prey base of aquatic macroinvertebrates.
(ii) Water that lacks harmful levels of pollutants, including
inorganic contaminants such as copper, arsenic, mercury, and cadmium;
organic contaminants such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorus fertilizers; and petroleum distillates.
(iii) Appropriate water quality parameters to support Black Warrior
waterdog and primary prey base, including:
(A) Water temperature not exceeding 85[deg] F;
(B) Dissolved oxygen 5.5 milligrams per liter (mg/L) or greater;
(C) Turbidity of an average monthly reading of 15 nephelometric
turbidity units above background readings;
(D) 115 mg/L of total suspended solids or less; and
(E) A specific conductance of no greater than 225 microsiemens
([mu]S) per centimeter at 80 [deg]F.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
February 2, 2018.
(4) Critical habitat map units. Data layers defining map units were
created from the USGS National Hydrography Datasets High Resolution
Flowline layer using Universal Transverse Mercator (UTM) Zone 16N
coordinates. Segments were mapped using 1983 UTM Zone 16 projection.
The maps in this entry, as modified by any accompanying regulatory
text, establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at http://www.fws.gov/daphne/, at http://www.regulations.gov under Docket No.
FWS-R4-ES-2016-0031, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
BILLING CODE 4333-15-P
[[Page 279]]
(5) Note: Index map follows:
[GRAPHIC] [TIFF OMITTED] TR03JA18.010
[[Page 280]]
(6) Unit 1: Yellow Creek; Tuscaloosa County, Alabama.
(i) General description: Unit 1 is approximately 30 rkm (19 rmi) of
stream and river habitat from the headwaters of Yellow Creek to Holt
Lake.
(ii) Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TR03JA18.011
[[Page 281]]
(7) Unit 2: Locust Fork; Blount, Etowah, Jefferson, and Marshall
Counties, Alabama.
(i) General description: Unit 2 is approximately 391 rkm (243 rmi)
of stream and river habitat from the headwaters of Locust Fork to
Bankhead Lake, from the headwaters of Slab Creek to the confluence of
Locust Fork, from the headwaters of Blackburn Fork to the confluence of
Locust Fork, and from the headwaters of Gurley Creek to the confluence
of Locust Fork.
(ii) Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TR03JA18.012
[[Page 282]]
(9) Unit 3: Blackwater Creek; Walker and Winston Counties, Alabama.
(i) General description: Unit 3 consists of approximately 128 rkm
(80 rmi) of stream and river habitat from the headwaters of Blackwater
Creek to the confluence of Mulberry Fork, from the headwaters of Brown
Creek to the confluence of Blackwater Creek.
(ii) Map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TR03JA18.013
[[Page 283]]
(10) Unit 4: Sipsey Fork; Lawrence and Winston Counties, Alabama.
(i) General description: Unit 4 consists of approximately 124 rkm
(78 rmi) of stream and river habitat from the headwaters of Sipsey Fork
to Lewis Smith Lake, from the headwaters of Brushy Creek to Lewis Smith
Lake, from the headwaters of Rush Creek to the confluence of Brushy
Creek, and from the headwaters of Capsey Creek to the confluence of
Brushy Creek.
(ii) Map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TR03JA18.014
[[Page 284]]
* * * * *
Dated: November 21, 2017.
James W. Kurth,
Deputy Director for U.S. Fish and Wildlife Service, Exercising the
Authority of the Director for U.S. Fish and Wildlife Service.
[FR Doc. 2017-28386 Filed 1-2-18; 8:45 am]
BILLING CODE 4333-15-C