[Federal Register Volume 81, Number 194 (Thursday, October 6, 2016)]
[Proposed Rules]
[Pages 69475-69500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24118]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2016-0031; 4500030113]
RIN 1018-BA79
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Black Warrior Waterdog
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Black Warrior waterdog (Necturus
alabamensis) under the Endangered Species Act (Act). In total,
approximately 1,073 river kilometers (669 river miles) in Blount,
Cullman, Etowah, Fayette, Jefferson, Lawrence, Marshall, Tuscaloosa,
Walker, and Winston Counties, Alabama, fall within the boundaries of
the proposed critical habitat designation. We also announce the
availability of a draft economic analysis (DEA) of the proposed
critical habitat designation. Elsewhere in this issue of the Federal
Register, we
[[Page 69476]]
propose to list the Black Warrior waterdog as an endangered species
under the Act.
DATES: We will accept comments received or postmarked on or before
December 5, 2016. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 21, 2016.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R4-ES-
2016-0031, which is the docket number for this rulemaking. Then, click
on the Search button. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, click on the
Proposed Rules link to locate this document. You may submit a comment
by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2016-0031, U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Document availability: The draft economic analysis is available on
the Service's Web site at http://www.fws.gov/Daphne, on the Federal
eRulemaking Portal at http://www.regulations.gov under Docket No. FWS-
R4-ES-2016-0031, and at the Alabama Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this proposed
rule and are available on the Service's Web site at http://www.fws.gov/Daphne, on the Federal eRulemaking Portal at http://www.regulations.gov
under Docket No. FWS-R4-ES-2016-0031, and at the Alabama Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any
additional tools or supporting information that we may develop for this
critical habitat designation will also be available at the Service's
Web site and Field Office identified above, and may also be available
at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: William Pearson, Field Supervisor,
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5184; or
facsimile 251-441-6222. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), if we determine that any species is an endangered or threatened
species we must designate critical habitat, to the maximum extent
prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
This rule is a proposed rule to designate critical habitat for the
Black Warrior waterdog under the Act.
The basis for our action. 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.
We prepared an economic analysis of the proposed designation of
critical habitat. We prepared an analysis of the economic impacts of
the proposed critical habitat designation and related factors. We
hereby announce the availability of the draft economic analysis (DEA)
and seek public review and comment.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. Because we will consider all
comments and information we receive during the comment period, our
final designation may differ from this proposal.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other concerned government agencies, the scientific
community, industry, or any other interested party concerning this
proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of Black Warrior waterdog habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Black Warrior waterdog and proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation and the benefits of including or excluding areas that
exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the DEA is a reasonable estimate of the likely economic
impacts.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
DEA, and how the consequences of such reactions, if likely to occur,
would relate to the conservation and regulatory benefits of the
proposed critical habitat designation.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better
[[Page 69477]]
accommodate public concerns and comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
All comments submitted electronically via http://www.regulations.gov will be presented on the Web site in their entirety
as submitted. For comments submitted via hard copy, we will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Alabama Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
All previous Federal actions regarding the Black Warrior waterdog
are described in the proposal to list the species as an endangered
species under the Act, published elsewhere in this issue of the Federal
Register.
Background
The Black Warrior waterdog is a species of salamander that
inhabits, and is endemic to, streams above the fall line in the Black
Warrior River Basin (Basin) in Alabama. 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). The Black Warrior waterdog inhabits the same areas as the
flattened musk turtle (Sternotherus depressus), a species listed as
threatened under the Act (52 FR 22418; June 11, 1987). According to
Mount (1981, p. 23), optimal habitat for the flattened musk turtle
consists of ``segment[s] 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 2 feet, with vegetated shallows
alternating with pools at least 3 to 4 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 [degrees Fahrenheit ([deg]F)], and (9) minimal
pollution by synthetic chemicals and toxic inorganic materials''
(Bailey 2014, p. 1). We find that the optimal habitat for the flattened
musk turtle, as described by Mount, reflects the optimal habitat for
the Black Warrior waterdog with two differences: the Black Warrior
waterdog's prey preference is insect larva instead of molluscan fauna,
and it uses leaf packs (leaves that accumulate in streams and form leaf
bundles behind branches, rocks, and other objects) as shelter and
foraging habitat.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define ``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.
[[Page 69478]]
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. 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. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
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.
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.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species; or
(2) designation of critical habitat would not be beneficial to the
species. In determining whether a designation would not be beneficial,
the factors the Service may consider include, but are not limited to:
Whether the present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or whether any areas meet the definition of ``critical
habitat.''
As discussed under Factor B in the proposed listing rule, which is
published elsewhere in this issue of the Federal Register, there is
currently no imminent threat of take attributed to collection or
vandalism for this species, and identification and mapping of critical
habitat is not expected to initiate any such threat. In the absence of
finding that the designation of critical habitat would increase threats
to a species, we consider whether such designation of critical habitat
would not be beneficial to the species. As discussed in our proposed
listing rule, we determined that the present or threatened destruction,
modification, or curtailment of a species' habitat or range is a threat
to the Black Warrior waterdog. We have also identified, in this
proposed rule, areas that meet the definition of critical habitat.
Therefore, because we have determined that the designation of
critical habitat will not likely increase the degree of threat to the
species and would be beneficial, we find that designation of critical
habitat is prudent for the Black Warrior waterdog.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the Black
Warrior waterdog is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. We have determined that this information is sufficient for us
to analyze the impacts of designation, and includes sufficient
information about the biological needs of the Black Warrior waterdog to
allow us to identify areas for inclusion in critical habitat.
Therefore, we conclude that critical habitat is determinable for the
Black Warrior waterdog.
Physical or Biological Features
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. We define ``physical
or biological features'' at 50 CFR 424.02 as: ``The features that
support the life-history needs of the species, including but not
limited to, water characteristics,
[[Page 69479]]
soil type, geological features, sites, 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.'' These
include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical and ecological
distributions of a species.
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. 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 (rocky habitat with little sand). According to
Mount (1981, p. 23), the Black Warrior waterdog's optimal habitat
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[emsp14][deg]F), and (9) minimal pollution by
synthetic chemicals and toxic inorganic materials.'' The Black Warrior
waterdog finds refuge under boulders or rocks and in crevices, lays its
eggs on the underside of boulders, feeds on insect larva, and has
permeable skin.
Because much is unknown about the spatial habitat requirements of
the Black Warrior waterdog, we considered the Neuse River waterdog
(Necturus lewisi), a closely related species that occurs in the North
Carolina piedmont plateau region, as a surrogate species. The Neuse
River waterdog inhabits similar microhabitat, has similar feeding
requirements, and occurs in the Piedmont plateau region. The
tributaries of the Neuse River are characterized with gradients similar
to the habitat found in the Black Warrior River Basin. According to
Ashton (1985, pp. 103-104), adult and juvenile Neuse River waterdogs
utilize microhabitats 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 utilize areas with
large bedrock outcrops, large boulders with sandy-gravel bottoms, and
stream banks with rock outcroppings.
We note that although the Gulf Coast waterdog (Necturus beyeri) is
also found in the Black Warrior Basin, we did not consider the species
as a surrogate for the Black Warrior waterdog because it utilizes a
different microhabitat; the Gulf Coast waterdog is usually found below
the fall line (sandy habitat). Streams utilized by the Gulf Coast
waterdog usually have sandy substrate, flow through flatter terrain,
and have broader flood plains than the Black Warrior waterdog's
habitat.
Therefore, based on the information above, we identify
geomorphically stable streams with substrate consisting of clay or
bedrock with little sand, and containing abundant rock crevices, rock
slabs, and leaf packs to be essential physical or biological features
for the Black Warrior waterdog. The connectivity of these stream
microhabitats is 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 unknown but are
likely similar to the feeding habits of Neuse River waterdog. 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
(Ostracoda, Copepoda, Isopoda, and Amphipoda) with some insect larvae
(Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and
Coleoptera). The adult 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--specifically, the prey base of aquatic
arthropods, insect larvae (Odonata, Ephemeroptera, Plecoptera,
Trichoptera, Diptera, and Coleoptera), aquatic and terrestrial
invertebrates, and aquatic and terrestrial vertebrates--it is essential
to also take into consideration the aquatic insects' specific habitat
requirements. 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 as a variety of detritus (leaf packs), algae, diatoms, and
macrophytes for the aquatic insects.
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 description of
optimal habitat, Neuse River waterdog literature, prey species
requirements (insect larva), 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 contaminates such as copper, arsenic, mercury, and cadmium;
organic contaminates such as human and animal waste products;
endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and
phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 12-
15);
[[Page 69480]]
Water temperature not exceeding 85[emsp14][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 (TSS; 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 ([micro]S) per centimeter at
80[emsp14][deg]F (October 10, 2012; 77 FR 61664).
These water quality parameters are very similar to those identified
as the primary constituent elements for the rush darter (Etheostoma
phytophilum) and the Alabama pearlshell (Margaritifera marrianae). The
Black Warrior waterdog benefits from instream flow with moderate
velocity and continuous daily discharge that allows for longitudinal
connectivity regimes (the pathway along the entire length of a stream).
The benefits are inclusive of both surface runoff and ground water
sources and exclusive of flushing flows caused by stormwater runoff.
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 recent environmental
deoxyribonucleic acid (eDNA) research, conducted by Godwin (2014, pers.
comm.), the Black Warrior waterdog could be utilizing streams as narrow
as 4 m (13 ft) wide.
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 contaminates such as copper,
arsenic, mercury, and cadmium; organic contaminates such as human and
animal waste products; endocrine-disrupting chemicals; pesticides;
nitrogen, potassium, and phosphorus fertilizers; and petroleum
distillates (ADEM 2014, pp. 13-15). Factors that can potentially alter
water quality include droughts and periods of low seasonal flow,
precipitation events, nonpoint source runoff, human activities within
the watershed, random spills (oil, chemicals, pesticides, fertilizer,
etc.), and unregulated stormwater discharge events. A decrease in water
quality and instream flow would correspondingly cause a decline in the
major food species for the Black Warrior waterdog. Excessive high water
flows can wash away or cover (with sediment) leaf packs that are
essential for juvenile and adult waterdog foraging and feeding.
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).
Therefore, based on the information above, we identify medium to
larger streams (typically 4 m (13 ft) wide or greater), containing hard
substrate (clay or bedrock with little sand) and abundant rock crevices
and rock slabs; cool, clean, flowing water having a dissolved oxygen
level of 5.5 mg/L or greater; moderate water velocity; aquatic
macroinvertabrate prey items; and leaf packs to be essential physical
or biological features for the Black Warrior waterdog.
Cover or Shelter
Preferred 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.
We identify hard bottom substrate with a combination of boulders, rock
slabs, and rock outcrops for shelter and reproduction and leaf packs to
be essential physical and biological features for the Black Warrior
waterdog.
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 show that the Black Warrior waterdog deposits eggs under
rock slabs or in rock crevices, and the female guards 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.).
Therefore, based on the information above, we identify medium to
larger streams (4 m wide or greater), with hard substrate (clay or
bedrock with little sand, also containing abundant rock crevices and
rock slabs) and moderate water velocity; aquatic macroinvertabrate prey
items; leaf packs; with adequate water, as defined above, quality to be
essential physical and biological features for the Black Warrior
waterdog.
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 a representative of the historic geographical and ecological
features of the species' habitat, and is currently considered the
stronghold of the species. Streams in this area typically consisted of
geomorphically stable streams 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 levels 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).
Therefore, based on the habitat found on Bankhead National Forest,
we identify medium to larger streams (4 m (13 ft) wide or greater) with
hard substrate (clay or bedrock with little sand, also containing
abundant rock crevices and rock slabs) to be essential physical and
biological features for the Black Warrior waterdog.
[[Page 69481]]
In summary, based on the information described above we identify
the physical or biological features essential to the conservation of
the Black Warrior waterdog consists of a riverine system with habitat
to support all life-history stages of the Black Warrior waterdog, which
consists of the following components:
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 contaminates 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[emsp14][deg]F;
b. Dissolved oxygen 5.5 mg/L or greater;
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 [micro]S per
centimeter at 80[emsp14][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 which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of the 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 best management practices (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.
In summary, we find that the occupied areas we are proposing to
designate as critical habitat for the Black Warrior waterdog contain
the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations or protection. Special management considerations or
protection may be required of the Federal action agency to eliminate,
or to reduce to negligible levels, the threats affecting the physical
and biological features of each unit. The major threats to the Black
Warrior waterdog are sedimentation (loss of habitat), water quality
(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 used the best
scientific data available to designate critical habitat. We reviewed
available information pertaining to the habitat requirements of the
species and surrogates. Based on our review, we are proposing to
designate critical habitat in areas within the geographical area
occupied by the species at the time of listing (in this case, currently
occupied). In accordance with the Act and its implementing regulation
at 50 CFR 424.12, we also considered whether designating additional
areas--outside those currently occupied--are essential for the
conservation of the species. As a result, we also are proposing to
designate specific areas outside the geographical area occupied by the
Black Warrior waterdog at the time of listing that are within the
historical range of the species, but are currently unoccupied, because
we have determined that such areas are essential for the conservation
of the species.
Areas Occupied at the Time of Listing
For the purpose of proposing critical habitat for the Black Warrior
waterdog, we defined the geographical area currently occupied by the
species as required by section 3(5)(A)(i) of the Act. 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, the U.S. Forest Service, the Natural Resources Conservation
Service, and the 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). We have determined that these four units (which include all
seven tributaries)--Sipsey Fork, Locust Fork, Browns 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.
Areas Not Occupied at the Time of Listing
To include areas not occupied by the species at the time of listing
in our critical habitat designation, we must demonstrate that these
areas are essential to the conservation of the subspecies. To determine
if these areas are essential for the conservation of the Black Warrior
waterdog, we considered: (1) The importance of the stream to the
[[Page 69482]]
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. Lye Branch, Lake
Tuscaloosa, Lost Creek, and Mulberry Fork meet these criteria. These
areas were formerly occupied by the Black Warrior waterdog and are
important in its future recovery, still contain suitable habitat for
the species, and can support reestablished populations because they
formerly supported the species and continue to support the flattened
musk turtle, which has similar habitat requirements as the Black
Warrior waterdog. In addition, the Lye Branch unit occurs below the
fall line for the Basin, which is a unique location for the Black
Warrior waterdog. Due to their separation from the other units, these
units have the potential to provide genetic material essential to the
recovery of the waterdog.
Mapping Black Warrior Waterdog Critical Habitat
In identifying proposed 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, 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 present and 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 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, but that do have historical records
prior to the mid-1990s, 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 proposed critical habitat designation
was then mapped using Projected Coordinate System, NAD 1983 UTM Zone
16N with a Projection of Transverse Mercator.
The proposed critical habitat designation is defined by the maps,
as modified by any accompanying regulatory text, presented at the end
of this document in the Proposed Regulation Promulgation section. We
include more detailed information on the boundaries of the proposed
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 Web site at http://www.fws.gov/daphne/, and at the field office responsible for the designation (see
FOR FURTHER INFORMATION CONTACT, above).
When determining proposed 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 proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, 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.
Proposed Critical Habitat Designation
We are proposing to designate approximately 1,073 river kilometers
(669 river miles) in eight 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. The
areas we propose as critical habitat are:
(1) Lye Branch: approximately 16 river kilometers (rkm) (10 river
miles (rmi)) of stream and river habitat. The unit consists of the
headwaters of Lye Branch to the confluence of Big Sandy Creek.
(2) Lake Tuscaloosa: approximately 108 rkm (67 rmi) of stream and
river habitat. The unit consists of the headwaters of North River to
Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa
Lake.
(3) Yellow Creek: approximately 30 rkm (19 rmi) of stream and river
habitat. This unit is from the headwaters of Yellow Creek to Holt Lake.
(4) Lost Creek: approximately 93 rkm (58 rmi) of stream and river
habitat. This unit is from the headwaters of Lost Creek to Bankhead
Lake.
(5) Locust Fork: approximately 391 rkm (243 rmi) of stream and
river habitat. This unit is 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.
(6) Mulberry Fork: approximately 183 rkm (114 rmi) of stream and
river habitat. This unit consists of the headwaters of Mulberry Fork to
Bankhead Lake, and from Little Blackwater Creek to the confluence of
Blackwater Creek.
(7) Blackwater Creek: approximately 128 rkm (80 rmi) of stream and
river habitat. This unit consists of the headwaters of Blackwater Creek
to the confluence of Mulberry Fork, from the headwaters of Brown Creek
to the confluence of Blackwater Creek.
(8) Sipsey Fork: approximately 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.
[[Page 69483]]
All of the areas proposed for designation 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 proposed unit and
proposed units that overlap with existing critical habitat units for
other federally listed species.
Table 1--Occupancy of Black Warrior Waterdog by Proposed Critical Habitat Units and Existing Overlapping
Critical Habitat Designation for Federally Listed Species
----------------------------------------------------------------------------------------------------------------
Existing
Private Federal critical Total length
Unit Location Occupied ownership rkm/ ownership rkm/ habitat rkm/ rkm/rmi
rmi rmi rmi
----------------------------------------------------------------------------------------------------------------
1............ Lye Branch..... No.............. 16/10 .............. .............. 16/10
2............ Lake Tuscaloosa No.............. 108/67 .............. * 61/38 108/67
3............ Yellow Creek... Yes............. 30/19 .............. .............. 30/19
4............ Lost Creek..... No.............. 93/58 .............. .............. 93/58
5............ Locust Fork.... Yes............. 391/243 .............. ** 101/63 391/243
6............ Mulberry Fork.. No.............. 183/114 .............. .............. 183/114
7............ Blackwater Yes............. 128/80 .............. .............. 128/80
Creek.
8............ Sipsey Fork.... Yes............. 11/7 113/71 *** 103/64 124/78
---------------------------------------------------------------
TOTALS......... ................ 960/598 113/71 265/165 1,073/669
----------------------------------------------------------------------------------------------------------------
* Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis
perovalis), ovate clubshell (Pleurobema perovatum), triangular kidneyshell (Ptychobranchus greenii).
** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, upland combshell (Epioblasma
metastriata), triangular kidneyshell.
*** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma
othcaloogensis), triangular kidneyshell.
We present brief descriptions of all 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 8, which
also includes Federal ownership.
Unit 1: Lye Branch, Tuscaloosa County
Unit 1 includes 16 rkm (10 rmi) of stream and river habitat
consisting of the headwaters of Lye Branch to the confluence of Big
Sandy Creek, and is below the fall line. This area is not occupied at
the time of listing, but is considered essential for the conservation
of the species. Based on a literature review by Bailey (2000, p. 1),
specimens were historically collected from this area. This location is
the only historical site below the fall line, which makes it unique for
the species. If any waterdogs still persist in this area, the genetic
material would be essential in the recovery of the Black Warrior
waterdog. Lye Branch contains leaf litter and instream flow with
moderate velocity and continuous daily discharge that allows for a
longitudinal connectivity regime. The instream flow consists of both
surface runoff and ground water sources, exclusive of flushing flows
caused by stormwater runoff, that are essential for the Black Warrior
waterdog in that it provides shelter, breeding, and foraging habitat
that would allow for reintroduction and recovery activities for the
Black Warrior waterdog.
Unit 2: Lake Tuscaloosa, Fayette and Tuscaloosa Counties, Alabama
Unit 2 includes 108 rkm (67 rmi) of stream and river habitat. The
unit consists of the headwaters of North River to Tuscaloosa Lake, and
from the headwaters of Carroll Creek to Tuscaloosa Lake. This area is
not occupied at the time of listing, but is considered essential for
the conservation of the species. Based on a literature review by Bailey
(2000, p. 1), specimens were historically collected from this area.
North River and Carroll Creek contain 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. This unit would provide
habitat for reintroduction and recovery activities of the Black Warrior
waterdog.
Unit 3: Yellow Creek, Tuscaloosa County, Alabama
Unit 3 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 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 proposed Unit 3
that may require special management considerations or protection
include:
Agriculture and silviculture activities, 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 of 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: Lost Creek, Walker County, Alabama
Unit 4 includes 93 rkm (58 rmi) of stream and river habitat. The
unit consists of headwaters of Lost Creek downstream to Bankhead Lake.
This
[[Page 69484]]
area is unoccupied at the time of listing, but is considered essential
for the conservation of the species. Based on a literature review by
Bailey (2000, p. 1), Black Warrior waterdogs were historically captured
in this area. This area contains 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. It would provide habitat for reintroduction
and recovery activities for the Black Warrior waterdog.
Unit 5: Locust Fork, Blount, Etowah, Jefferson, and Marshall Counties,
Alabama
Unit 5 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 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. 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 proposed Unit 5
that may require special management considerations or protection
include:
Agriculture and silviculture activities, 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 of 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 6: Mulberry Fork, Blount, Cullman, Marshall, and Walker Counties,
Alabama
Unit 6 includes 183 rkm (114 rmi) of stream and river habitat
consisting of the headwaters of Mulberry Fork to Bankhead Lake, and
from Little Blackwater Creek to the confluence of Blackwater Creek.
This area is not occupied at the time of listing, but is considered
essential for the conservation of the species. Based on a literature
review by Bailey (2000, p. 1), Black Warrior waterdog specimens were
historically collected here. This area contains 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. This unit would provide
habitat for reintroduction and recovery activities of the Black Warrior
waterdog.
Unit 7: Blackwater Creek, Walker and Winston Counties, Alabama
Unit 7 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 occupied at the time of
listing based on a literature review by Bailey (2000, p. 1). Godwin
(2014, pers. comm.) reported that Black Warrior waterdogs were still
present based on eDNA results. 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 proposed Unit 7
that may require special management considerations or protection
include:
Agriculture and silviculture activities, 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 of 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 8: Sipsey Fork, Lawrence and Winston Counties, Alabama
Unit 8 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 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 occupied at the time of listing, based on recent
captures (Godwin 2016, 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 proposed Unit 8
that may require special management considerations or protection
include:
Agriculture and silviculture activities, 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 of 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
[[Page 69485]]
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 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 which 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.
On February 11, 2016 (81 FR 7214), we published a final rule
setting forth a new definition of destruction or adverse modification,
which became effective on March 14, 2016. ``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 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
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
[[Page 69486]]
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 proposed 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 proposed
rule, we have not considered any areas for exclusion from critical
habitat.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
which includes the existing regulatory and socio-economic burden
imposed on landowners, managers, or other resource users potentially
affected by the designation of critical habitat (e.g., under the
Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct an optional 4(b)(2)
exclusion analysis.
For this designation, we developed an incremental effects
memorandum (IEM) considering the probable incremental economic impacts
that may result from this proposed designation of critical habitat. The
information contained in our IEM was then used to develop a screening
analysis of the probable effects of the designation of critical habitat
for the Black Warrior waterdog and draft Waterdog Screening Memorandum,
dated June 30, 2015. The purpose of the screening analysis is to filter
out the geographic areas in which the critical habitat designation is
unlikely to result in probable incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes probable economic
impacts where land and water use may be subject to conservation plans,
land management plans, best management practices, or regulations that
protect the habitat area as a result of the Federal listing status of
the species. The screening analysis filters out particular areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. The
screening analysis also assesses whether units are unoccupied by the
species and may require additional management or conservation efforts
as a result of the critical habitat designation for the species which
may incur incremental economic impacts. This screening analysis,
combined with the information contained in our IEM, constitutes our
draft economic analysis of the proposed critical habitat designation
for the Black Warrior waterdog and is summarized in the narrative
below.
Executive Orders (E.O.) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with these requirements, our effects analysis may take into
consideration impacts to both directly and indirectly impacted
entities, where practicable and reasonable. As part of our screening
analysis, we considered the types of economic activities that are
likely to occur within the areas likely affected by the critical
habitat designation. First we identified, in the draft Waterdog
Screening Memorandum, probable incremental economic impacts associated
with the following categories of activities: (1) Federal lands
management (U.S. Forest Service, U.S. Bureau of Reclamation); (2)
roadway and bridge construction; (3) agriculture; (4) grazing; (5)
conservation/restoration; (6) instream dams and diversions; (7) storage
and distribution of chemical pollutants; (8) dredging; (9) commercial
or residential development; (10) timber harvest; (11) recreation
(including sport fishing and sportfish stocking, off-road vehicle
activity); (12) mining; (13) in-water construction; (14) utilities;
(15) water quality; and (16) water quanity/supply. We considered each
industry or category individually. Additionally, we considered whether
their activities have any Federal involvement, because critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the Black Warrior waterdog is present, if the species is
listed, then Federal agencies would already be required to consult with
the Service under section 7 of the Act on activities they fund, permit,
or implement that may affect the species. If we finalize this proposed
critical habitat designation, consultations to avoid the destruction or
adverse modification of critical habitat would merely be incorporated
into that consultation process. Therefore, for occupied and unoccupied
habitat disproportionate impacts to any geographic area or sector are
not likely as a result of this critical habitat designation.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Black
[[Page 69487]]
Warrior waterdog's critical habitat. Because the designation of
critical habitat for the Black Warrior waterdog was proposed
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical and biological features identified for critical
habitat are the same features essential for the life requisites of the
species; and (2) any actions that would result in sufficient harm or
harassment to constitute jeopardy to the Black Warrior waterdog would
also likely adversely affect the essential physical and biological
features of critical habitat. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation in turn has been used as the basis to evaluate
the probable incremental economic impacts of this proposed designation
of critical habitat.
The proposed critical habitat designation for the Black Warrior
waterdog is likely to result, annually, in less than two 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 draft
screening analysis, the administrative cost of addressing adverse
modification in the consultations will cost between about $410 to
$9,000 per consultation. 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 the designation expected to have perceptional
effects on the markets.
Exclusions
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. As discussed
above, we prepared an analysis of the probable economic impacts of the
proposed critical habitat designation and related factors (DEA).
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
required determinations. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
public comment period. In particular, we may exclude an area from
critical habitat if we determine that the benefits of excluding the
area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands within the proposed critical habitat designation where a national
security impact might exist. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for Black Warrior waterdog are not owned or managed by the
Department of Defense or Department of Homeland Security, and,
therefore, we anticipate no impact on national security. Consequently,
the Secretary does not intend to exercise her discretion to exclude any
areas from the final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any habitat conservation plans (HCPs) or
other management plans for the area, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, 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 proposal, we have determined that there are
currently no HCPs or other management plans for the Black Warrior
waterdog, and the proposed designation does not include any tribal
lands or trust resources. We anticipate no impact on tribal lands,
partnerships, or HCPs from this proposed critical habitat designation.
Accordingly, the Secretary does not intend to exercise her discretion
to exclude any areas from the final designation based on other relevant
impacts.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data and analyses. We have invited these peer reviewers to comment
during this public comment period.
We will consider all comments and information we receive during the
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register (see DATES, above). Such requests must be sent to the address
shown in FOR FURTHER INFORMATION CONTACT. We will schedule public
hearings on this proposal, if any are requested, and announce the
dates, times, and places of those hearings, as well as how to obtain
reasonable accommodations, in the Federal Register and local newspapers
at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of Executive Order
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. Executive Order 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
[[Page 69488]]
developed this rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine 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 only required to evaluate the potential incremental
impacts of rulemaking 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.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities are directly regulated by this rulemaking, the
Service certifies that, if adopted, the proposed critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
For the above reasons and based on currently available information,
we certify that, if adopted, the proposed critical habitat designation
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial 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. We do not expect this proposed designation of critical
habitat to significantly affect energy supplies, distribution, or use.
Oil and gas pipelines crossing the proposed critical habitat can be
buried under the river channel (directional bored) and the contours of
the channel bed returned to their natural state. Also, there are
existing impoundments for power generation within the Basin but outside
the proposed critical habitat. 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 would 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, and critical
habitat would not shift the costs of the large entitlement programs
listed above onto State governments.
[[Page 69489]]
(2) We do not believe that this rule would significantly or
uniquely affect small governments because the lands adjacent to the
river and streams being proposed for critical habitat are primarily
owned by private landowners, which do not fit the description of
``small governmental jurisdiction.'' Therefore, a Small Government
Agency Plan is not required. However, we will further evaluate this
issue as we conduct our economic analysis, and review and revise this
assessment as warranted.
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 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, nor does it 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 proposed designation of
critical habitat for the Black Warrior waterdog would 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 proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in Alabama. 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, this proposed rule would
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) of the Act 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 requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the proposed rule identifies the elements of physical or biological
features essential to the conservation of the species. The proposed
areas of critical habitat are presented on maps, and the proposed 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 proposed rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). This rule would 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.
As discussed above, we have determined that there are no tribal
lands that meet the criteria under the Act for inclusion in critical
habitat.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
[[Page 69490]]
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of references cited in this rulemaking 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 proposed 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.
Accordingly, we propose to 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:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.95, amend paragraph (d) by adding an entry for ``Black
Warrior Waterdog (Necturus alabamensis)'' immediately following the
entry for ``Houston Toad (Bufo houstonensis)'' 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, Cullman,
Etowah, Fayette, 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 consists of
a riverine system with habitat to support all life-history stages of
the Black Warrior waterdog, which 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 contaminates 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 (NTUs) above background readings;
(D) 115 mg/L of total suspended solids or less; and
(E) A specific conductance of no greater than 225 microsiemens
([micro]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
the effective date of this rule.
(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.
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[[Page 69491]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.006
(6) Unit 1: Lye Branch.
(i) General description: Unit 1 consists of approximately 16 river
kilometers (rkm) (10 river miles (rmi)) of stream and river habitat
from the headwaters of Lye Branch to the confluence of Big Sandy Creek.
(ii) Map of Unit 1 follows:
[[Page 69492]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.007
(7) Unit 2: Lake Tuscaloosa.
(i) General description: Unit 2 consists of approximately 108 rkm
(67 rmi) of stream and river habitat from the headwaters of North River
to Tuscaloosa Lake, and from the headwaters of Carroll Creek to
Tuscaloosa Lake.
(ii) Map of Unit 2 follows:
[[Page 69493]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.008
(8) Unit 3: Yellow Creek.
(i) General description: Unit 3 is approximately 30 rkm (19 rmi) of
stream and river habitat from the headwaters of Yellow Creek to Holt
Lake.
(ii) Map of Unit 3 follows:
[[Page 69494]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.009
(9) Unit 4: Lost Creek.
(i) General description: Unit 4 is approximately 93 rkm (58 rmi) of
stream and river habitat from the headwaters of Lost Creek to Bankhead
Lake.
(ii) Map of Unit 4 follows:
[[Page 69495]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.010
(10) Unit 5: Locust Fork.
(i) General description: Unit 5 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 5 follows:
[[Page 69496]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.011
(11) Unit 6: Mulberry Fork.
(i) General description: Unit 6 consists of approximately 183 rkm
(114 rmi) of stream and river habitat from the headwaters of Mulberry
Fork to Bankhead Lake, and from Little Blackwater Creek to the
confluence of Blackwater Creek.
(ii) Map of Unit 6 follows:
[[Page 69497]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.012
(12) Unit 7: Blackwater Creek/Browns Creek.
(i) General description: Unit 7 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 7 follows:
[[Page 69498]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.013
(13) Unit 8: Sipsey Fork.
(i) General description: Unit 8 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 8 follows:
[[Page 69499]]
[GRAPHIC] [TIFF OMITTED] TP06OC16.014
[[Page 69500]]
* * * * *
Dated: September 26, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2016-24118 Filed 10-5-16; 8:45 am]
BILLING CODE 4333-15-C