[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]


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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.

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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

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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    (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:

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[[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