[Federal Register Volume 81, Number 194 (Thursday, October 6, 2016)]
[Proposed Rules]
[Pages 69500-69508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24119]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2016-0029; 4500030113]
RIN 1018-BA78

Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Black Warrior Waterdog

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Black Warrior waterdog (Necturus alabamensis), an aquatic 
salamander from the Black Warrior River Basin of Alabama, as an 
endangered species under the Endangered Species Act (Act) because of 
the severity and immediacy of threats currently impacting the species. 
If we finalize this rule as proposed, it would extend the Act's 
protections to this species.

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 FWS-R4-ES-2016-0029, 
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-2016-0029, 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 Public Comments, below, for more information).

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; by telephone 251-441-5184; 
or by facsimile 251-441-6222. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.


Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) The Black Warrior waterdog's biology, range, and population 
trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1531 et seq.) directs that determinations as to whether any species is 
a threatened or endangered species must be made ``solely on the basis 
of the best scientific and commercial data available.''
    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.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    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 

Public Hearing

    Section 4(b)(5) of the Act requires us to hold 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 the FOR FURTHER INFORMATION CONTACT section. 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.

[[Page 69501]]

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 listing determination is based on scientifically sound data, 
assumptions, and analyses. The peer reviewers will inform our 
determination. We invite comments from the peer reviewers during this 
public comment period.

Previous Federal Actions

    The Black Warrior waterdog (then known as the Sipsey Fork waterdog) 
was first identified as a Category 2 species in our 1982 Review of 
Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 
FR 58454, December 30, 1982). Category 2 candidates were defined as 
taxa for which we had information that proposed listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not available to support a proposed rule at the time. 
The species remained on subsequent annual candidate notices of review 
(CNORs) (56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 
1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the 
designation of Category 2 species as candidates; therefore, the Black 
Warrior waterdog was no longer a candidate species.
    In 1999, the Black Warrior waterdog was again added to the 
candidate list (64 FR 57534, October 25, 1999). At present, candidates 
are those fish, wildlife, and plants for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing rule is precluded by other higher priority listing 
activities. The Black Warrior waterdog was included in all of our 
subsequent annual CNORs (66 FR 54808, October 30, 2001; 67 FR 40657, 
June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 
FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 
75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, 
November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 
21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 
2014; 80 FR 80584, December 24, 2015). On May 11, 2004, we were 
petitioned to list the Black Warrior waterdog. The petitioner provided 
information the Service already had in its files and had used to 
identify the species as warranted for listing. As a result, no further 
action was taken on the petition. The Black Warrior waterdog has a 
listing priority number of 2, which means that the candidate is a 
species with threats that are both imminent and high in magnitude.

Species Information

Taxonomy and Species Description

    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). Its head 
and body are depressed; its tail is compressed laterally, and each of 
its four legs has a foot with four toes. Larval Black Warrior waterdogs 
(28 to 48 millimeters (mm) (1 to 2 inches (in) total length)) are dark 
brown or black on their dorsum (upper surfaces) and have two light 
stripes running along their sides (Bailey 2000, p. 1). Adults may reach 
a maximum of 240 mm (9.5 in) total length; subadults (40 to 100 mm (1.5 
to 4 in) total length) do not have the stripes that are present on 
larvae and are not conspicuously marked, although they do have a dark 
stripe extending from the nostril through the eye to the gills. Adults 
are usually brown, may be spotted or unspotted, and retain the dark eye 
stripe (Bailey 2000, p. 1). The ventral surface of all age classes is 
plain white.
    In 1937, Viosca (1937, pp. 120-138) described the Black Warrior 
waterdog as Necturus alabamensis. In subsequent years, the name N. 
alabamensis was mistakenly applied to other waterdogs within the peer-
reviewed literature. The taxonomy of the Black Warrior waterdog was 
clarified by Bart et al. (1997, pp. 192-201), and the original 
description by Viosca (1937, pp. 120-138) remains valid. The available 
taxonomic information on N. alabamensis has been carefully reviewed, 
and we conclude that this species is a valid taxon.


    The Black Warrior waterdog (waterdog) is found only within streams 
within the Black Warrior River Basin (Basin) in Alabama. The waterdog 
inhabits streams above the Piedmont Fall Line (the contact between the 
Coastal Plain and the adjacent Upland provinces) within the Basin in 
Alabama, including parts of the North River, Locust Fork, Mulberry 
Fork, and Sipsey Fork drainages and their tributaries.
    Waterdog habitat is similar to that of the flattened musk turtle 
(Sternotherus depressus), a species listed as threatened under the Act 
(52 FR 22418; June 11, 1987) and which is restricted to permanent 
streams above the Fall Line in the Black Warrior Basin (Mount 1975, p. 
303). The waterdog received little attention between the time it was 
described in 1937 and the mid-1980s, when it was found during surveys 
in the Tennessee-Tombigbee Waterway (Ashton and Peavy 1985, pp. 1-15). 
During this time, reference to the species, beyond field guides and 
summary descriptions, could be found in only three scientific 
publications and one unpublished doctoral dissertation (Hecht 1958, pp. 
4, 17; Neil 1963, pp. 166-174; Gunter and Brode 1964, pp. 114-126; 
Brode 1969, pp. 21-22, 62-64, 132).
    There are a total of 11 historical records from sites in Blount, 
Tuscaloosa, Walker, and Winston Counties, Alabama. The historical 
waterdog records are sites from 10 streams or major segments: Sipsey 
Fork (two sites) of the Black Warrior River and Brushy Creek (a 
tributary to Sipsey Fork) in Winston County; Locust Fork and Blackburn 
Fork of the Little Warrior River in Blount County; Mulberry Fork, Lost 
Creek, and Blackwater Creek in Walker County; and Yellow Creek, North 
River, and Black Warrior River in Tuscaloosa County (Viosca 1937, pp. 
120-122, 137-138; Ashton and Peavy 1985, pp. 1-15; Bailey 1992, pp. 7-
9, 16-27; Bailey 1995, pp. 16-27; Bart et al. 1997, pp. 194-195, 198-
200; Guyer 1997, p. 9; Bailey 2000, pp. 3-5). Only two of these records 
(Black Warrior River ``near Tuscaloosa'' in 1914 and 1937, and Mulberry 
Fork ``at Cordova'' in 1938) were documented prior to the mid-1980s. 
These localities have since been inundated by impoundments.
    Bailey (2000, pp. 1-24) conducted a habitat assessment of the 11 
sites verified as Black Warrior waterdog localities prior to 1993. 
Bailey assessed the sites using subjective impressions of habitat 
suitability using parameters such as stream width and depth, water 
quality, substrate, structure (crevices, logs, etc.), and invertebrate 
fauna. Sites were stratified into four categories: Good to excellent, 
moderate, poor to unsuitable, and impounded. Bailey concluded that one 
(9 percent) of the sites was good to excellent, four (36 percent) were 
of moderate quality, two (18 percent) were poor to unsuitable, and four 
(36 percent) were in impoundments.

Current Range and Distribution

    At least 112 sites have been sampled for the Black Warrior 
waterdogs since 1990 (1990, 1991, 1992, 1994, 1996, 1997, 1998, 2008, 
2009, 2011, 2012, and

[[Page 69502]]

2013) (Bailey 1995, pp. 16-27; Guyer 1997, pp. 19-21 and 1998, pp. 6-7; 
Durflinger-Moreno et al. 2006, pp. 73-74; Stoops et al. 2010, p. 6; 
Alabama Natural Heritage Program 2011, p. 4; 78 FR 70104, November 22, 
2013, p. 70125; Godwin 2014, pers. comm.; Godwin 2013b, p. 1). Survey 
sites included all stream localities within the range of the species 
that approached or intersected roads and had appropriate habitat. Since 
1990, the species has been reported from only 14 sites. These sites are 
in Blount (Blackburn Fork of the Little Warrior River), Marshall (Slab 
Creek, tributary to Locust Fork), Tuscaloosa (Yellow Creek, North 
River, Carroll Creek, Lye Branch, Mulberry Fork), Walker (Lost Creek, 
Little Blackwater Creek), and Winston (Sipsey Fork, Blackwater Creek, 
Browns Creek, Brushy Creek, Capsey Creek) Counties, Alabama. Guyer 
(1997, pp. 3-4) did a statistical analysis of all waterdog field survey 
data. The relationship between cumulative number of site visits and the 
cumulative number of sites containing waterdogs indicated that 200 
additional surveys would be needed to discover a single new locality 
for the species (Guyer 1997, p. 4).
    No waterdogs were recently captured at any historic localities 
outside of William Bankhead National Forest (BNF). Therefore, we 
believe the populations are in decline outside of BNF. Only through the 
use of environmental DNA (eDNA) have we been able to determine that the 
species is still present at some historic locations. Environmental DNA 
is a surveillance tool used to monitor for the genetic presence of an 
aquatic species. According to Strickler (2015, p. 1),''Environmental 
DNA has proven to be a sensitive, accurate, and cost-efficient tool for 
species detection in aquatic environments and is especially attractive 
because it's non-invasive and poses no risk to aquatic animals. Even 
when an aquatic animal can't be seen or heard, it leaves traces of 
itself in the water by shedding skin, excreting waste, releasing 
gametes and decomposing. Investigators collect a water sample to detect 
the target species' DNA and determine whether the species has recently 
been in the water body.'' Field surveys conducted between 2008 and 2012 
at historical localities indicated only one population was still 
persisting in the BNF, Winston County (Stoops et al. 2010, p. 1-6; 
Godwin 2014, pers. comm.; Godwin 2013a, p. 1 and 2013b, p. 1). 
Additionally, the use of eDNA in 2013 and 2014 indicated that Black 
Warrior waterdogs were still present in Locust Fork, Gurley Creek, Rush 
Creek (BNF property), and Yellow Creek (Godwin 2014, pers. comm.), 
although no waterdogs were captured at the time.

Population Estimates and Status

    Each of the 14 sites verified as a Black Warrior waterdog locality 
(see above) represented individual populations. Very little is known 
about the status of these populations. Only one or two animals were 
captured at survey sites with the exception of Sipsey Fork, which was 
chosen for an indepth study because waterdogs were most common there 
(Durflinger-Moreno et al. 2006, pp. 70-71). Fifty-two waterdogs were 
captured at the Sipsey Fork site over a 3-year period representing 
173,160 trap hours (1 waterdog/3,330 trap hours). Thirty-five (67 
percent) animals were adults, 5 (10 percent) were subadults, and 12 (23 
percent) were larvae. The number of adult males and females captured 
was not significantly different from an expected 1:1 sex ratio 
(Durflinger-Moreno et al. 2006, p. 79). In the Sipsey Fork, the high 
number of sexually mature individuals indicates that recruitment and 
survival rates of the young age classes may be low (Durflinger-Moreno 
et al. 2006, p. 79).
    The viability of any Black Warrior waterdog population, including 
Sipsey Fork population, is unknown.


    Rocks, submerged ledges, and other cover play important roles in 
determining habitat suitability for the Black Warrior waterdog (Ashton 
and Peavy 1986, p. 64). Semi-permanent leaf beds (where they exist) are 
visited frequently (Ashton and Peavy 1986, p. 64). Larvae and adult 
waterdogs are reliably found only in these submerged leaf beds, and 
they may use them for both shelter and foraging habitat (Bailey 2000, 
p. 3). Guyer (1997, pp. 1-21) analyzed habitats to distinguish sites 
with waterdogs from those lacking the species. He found that Black 
Warrior waterdogs were associated with clay substrates lacking silt, 
wide and shallow stream morphology, increased snail and dusky 
salamander (Desmognathus spp.) abundance, and decreased Asiatic clam 
(Corbicula fluminea) occurrence. Durflinger-Moreno et al. (2006, pp. 
70-80) completed an additional assessment of 112 localities surveyed 
for waterdogs. At a regional scale, Black Warrior waterdogs were 
associated with stream depths of 1 to 4 meters (m) (3.3 to 13.1 feet 
(ft)), reduced sedimentation, and large leaf packs (leaves that fall 
into streams accumulate in packs usually behind branches, rocks, and 
other obstructions) supporting mayfly (Ephemeroptera spp.) and 
caddisfly (Trichoptera spp.) larvae.


    Very little is known about the life history of the Black Warrior 
waterdog. Additionally, data are generally limited for other species of 
the southeastern Necturus waterdogs, as well.
    Reproduction in the Black Warrior waterdog is aquatic. Egg 
disposition sites and clutch sizes are unknown. However, in the closely 
related Gulf Coast waterdog (Necturus beyeri), females attach their 
eggs singly to the undersides of underwater substrate (summarized in 
Guyer 2005, p. 868). Sexually active Black Warrior waterdog adults have 
been found in rock crevices (Bailey 2005, p. 867), and thus egg 
deposition may occur at these sites. Clutch sizes ranging from 4 to 40 
eggs were reported in a summary of research conducted on the Gulf Coast 
waterdog (Guyer 2005, p. 868). Ashton and Peavy (1986, p. 64) collected 
post hatchling Black Warrior waterdog larvae in December; this suggests 
that nesting may occur in late spring or summer. Reproductive maturity 
is probably attained in the third winter or at 2.5 years of age (Bailey 
2005, p. 867).
    Aestivation (spending the summer in a state of inactivity) in Black 
Warrior waterdogs is suspected, as no specimens have been collected 
during the summer (Bailey 2005, p. 867). A similar seasonal pattern of 
activity primarily in winter and spring is also seen in other species 
of Necturus (Dundee 2005, p. 872; Guyer 2005, p. 868).
    Larval and adult Black Warrior waterdogs are assumed to be 
opportunistic carnivores, but prey taken in the wild has not been 
described. Adults are attracted to traps baited with fish-flavored cat 
food (Bailey 2005, p. 867). Captive Black Warrior waterdogs have eaten 
small fish and earthworms (Bailey 2005, p. 867). Crayfish, isopods, 
amphipods, freshwater clams, and insects (including mayflies, 
caddisflies, dragonfly naiads, dytiscid beetles, and midges) have been 
reported as prey items in Gulf Coast waterdogs (Guyer 2005, p. 868).
    Home ranges of Black Warrior waterdogs are likely small as in other 
species of the southeastern Necturus. As much more is known about the 
Gulf Coast waterdog, we are basing our analysis on its mark-recapture 
study where all recaptures were within 64 m (210 ft) of the original 
capture and release site (summarized in Guyer 2005, p. 868).

[[Page 69503]]

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination. Each of these 
factors is discussed below.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Water quality degradation is the primary threat to the continued 
existence of the Black Warrior waterdog. Bailey (2000, pp. 19-20) 
considered water quality degradation to be the primary reason for the 
extirpation of this species over much of its historical range in the 
upper Black Warrior River system. Changes in water chemistry and flow 
patterns, resulting in a decrease in water quality and quantity have 
detrimental effects on salamander ecology because they can render 
aquatic habitat unsuitable for salamanders. Substrate modification is 
also a major concern for aquatic salamander species (Geismar 2005, p. 
2; O'Donnell et al. 2006, p. 34). Unobstructed interstitial space 
(pertaining to being between things, especially between things that are 
normally close) is a critical component of the habitat for the Black 
Warrior waterdog, because it provides cover from predators and habitat 
for their macroinvertebrate prey items within the sites. When the 
interstitial spaces become compacted or filled with fine sediment, the 
amount of available foraging habitat and protective cover for 
salamanders with these behaviors is reduced, resulting in population 
declines (Welsh and Ollivier 1998, pp. 1, 128; Geismar 2005, p. 2; 
O'Donnell et al. 2006, p. 34). Most streams surveyed for the Black 
Warrior waterdog showed evidence of water quality degradation, and many 
appeared biologically depauperate (limited aquatic species diversity) 
(Bailey 1992, p. 2 and 1995, p. 11; Durflinger-Moreno et al. 2006, p. 
    Sources of point (point source discharge) and nonpoint (land 
surface runoff) pollution in the Basin have been numerous and 
widespread. Point pollution is generated from inadequately treated 
effluent from industrial plants, sanitary landfills, sewage treatment 
plants, and drain fields from individual private homes (Service 2000, 
pp. 12-13). Nonpoint pollution originates from agricultural activities, 
poultry and cattle feedlots, abandoned mine runoff, construction, 
silviculture, failing septic tanks, and contaminated runoff from urban 
areas (Deutsch et al. 1990, pp. 1-62, Upper Black Warrior Technical 
Task Force 1991, p. 1; O'Neil and Sheppard 2001, p. 2). These sources 
contribute pollution to the Basin via sediments, fertilizers, 
herbicides, pesticides, animal wastes, septic tank and gray water 
leakage, and oils and greases. Water quality and native aquatic fauna 
have declined as a result of this pollution, which causes 
nitrification, decreases in dissolved oxygen concentration, and 
increases in acidity and conductivity. These alterations have a direct 
effect on the survival of Black Warrior waterdogs, which, due to their 
highly permeable skin (Duellman and Trueb 1986, p. 197) and external 
gills, are very sensitive to declines in water quality and oxygen 
    Urbanization is a significant source of water quality degradation 
that can reduce the survival of aquatic organisms, such as the Black 
warrior waterdog (Bowles et al. 2006, p. 119; Chippindale and Price 
2005, pp. 196-197). Urban development leads to various stressors on 
aquatic systems, including increased frequency and magnitude of high 
flows in streams, increased sedimentation, increased contamination and 
toxicity, and changes in stream morphology and water chemistry (Coles 
et al. 2012, pp. 1-3, 24, 38, 50-51). Urbanization can also impact 
aquatic species by negatively affecting their invertebrate prey base 
(Coles et al. 2012, p. 4). Urbanization also increases the sources and 
risks of an acute or catastrophic contamination event, such as a leak 
from an underground storage tank or a hazardous materials spill on a 
highway. Several researchers have examined the negative impact of 
urbanization on stream salamander habitat by making connections between 
salamander abundances and levels of development within the watershed. 
In a 1972 study on the dusky salamander (Desmognathus fuscus) in 
Georgia, Orser and Shure (p. 1,150) found a decrease in stream 
salamander density with increasing urban development. A similar 
relationship between salamander populations and urbanization was found 
in another study on the dusky salamander, two-lined salamander (Eurycea 
bislineata), southern two-lined salamander (Eurycea cirrigera), and 
other species in North Carolina (Price et al. 2006, pp. 437-439; Price 
et al. 2012a, p. 198), Maryland, and Virginia (Grant et al. 2009, pp. 
1,372-1,375). Willson and Dorcas (2003, pp. 768-770) demonstrated the 
importance of examining disturbance within the entire watershed as 
opposed to areas just adjacent to the stream by showing that salamander 
abundance in the dusky and two-lined salamanders is most closely 
related to the amount and type of habitat within the entire watershed.
    The large population centers such as Birmingham, Tuscaloosa, and 
Jasper contribute substantial runoff to the Basin. The watershed 
occupied by these three cities contains more industrial and residential 
land area than other river basins in Alabama. Streams draining these 
areas have a history of serious water quality problems, as described 
above. Species of fish, mussels, and snails (Mettee et al. 1989, pp. 
14-16; Hartfield 1990, pp. 1-8), and populations of the flattened musk 
turtle (Service 1990, p. 3), have been extirpated from large areas of 
the watershed primarily due to water quality degradation. For example, 
Mettee et al. (1989, pp. 14-16) noted the absence of at least nine fish 
species from streams draining the Birmingham metropolitan area where 
they had previously been common, and Hartfield (1990, pp. 1-8) 
documented the extirpation of 39 to 40 species of mussels from 
individual tributaries of the Black Warrior River. In addition, highway 
construction may reroute streams or change their shape.
Forest Management
    Forestry operations and road construction are also sources of 
nonpoint pollution when best management practices (BMPs) are not 
followed to protect streamside management zones (Hartfield 1990, pp. 4-
6; Service 2000, p. 13). Logging can cause erosion, siltation, and 
streambed structural changes from the introduction of tree slash. 
Forestry road construction, stream crossings, and bridge replacements 
can also result in increased sedimentation, and runoff may introduce 
toxic chemicals into streams. According to Alabama's BMPs for forestry, 
stream management zones (SMZs) should be 35 ft (50 ft for

[[Page 69504]]

sensitive areas). Recently, the forest industry has begun to self-
regulate SMZs through a certification program in which mills will not 
accept timber from foresters who do not comply with SMZs.
Surface Mining
    Surface mining represents another threat to the biological 
integrity of streams in the Basin and has undoubtedly, in the past, 
affected the distribution of the Black Warrior waterdog (Bailey 1995, 
p. 10). Strip mining for coal results in hydrologic problems (i.e., 
erosion, sedimentation, decline in groundwater levels, and general 
degradation of water quality) that affect many aquatic organisms 
(Service 2000, p. 12). Runoff from coal surface mining generates 
pollution through acidification, increased mineralization, and sediment 
loading. Impacts are generally associated with past activities and 
abandoned mines, since presently operating mines are required to employ 
environmental safeguards established by the Federal Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) and the 
Clean Water Act of 1972 (33 U.S.C. 1251 et seq.) (Service 2000, p. 12). 
Old, abandoned mines will continue to contribute pollutants to streams 
into the future.
    Recently, new coal mines, which have the potential of discharging 
additional pollutants into the waters within the range of the Black 
Warrior waterdog, have been proposed in the Sipsey Fork and the 
Mulberry Fork (Dillard 2011, pers. comm.; Alabama Surface Mining 
Commission 2012, pp. 1-4).
    Sedimentation has probably caused similar declines for Black 
Warrior waterdogs as it has for the flattened musk turtle, which also 
occurs in the upper Basin. Sedimentation in this system has negatively 
affected the flattened musk turtle by: (1) Reduction of mollusks and 
other invertebrates used as food; (2) physical alteration of rocky 
habitats where animals forage and take cover, and (3) accumulation of 
substrate in which chemicals toxic to animals and their prey persist 
(Dodd et al. 1988, pp. 1-61). The Sipsey Fork of the Black Warrior 
River is the best remaining locality for the Black Warrior waterdog 
(Guyer 1998, p. 2). Bailey and Guyer (1998, pp. 77-83) completed a 
study of the flattened musk turtle at this site. They found that the 
turtle population was declining and suggested that habitat quality is 
also deteriorating. Because of similar habitat use, deteriorating 
habitat quality may likewise affect the Black Warrior waterdog.
    Black Warrior waterdogs are vulnerable to sedimentation, and the 
associated pollution concentrated in sediments, as they spend virtually 
all of their lives at the stream bottom and would be in almost constant 
contact with any toxic substances that may be present (Bailey 1995, p. 
10). The skin of amphibians is highly permeable, and water is exchanged 
readily with the environment. As a result, the respiration (breathing) 
and osmoregulation (balance of body fluids) of Black Warrior waterdogs 
would be negatively affected by toxic sediments. Excessive sediments 
also impact the hard stream and river bottoms by making the habitat 
unsuitable for feeding or reproduction of Black Warrior waterdogs. For 
example, sediments have been shown to affect respiration, growth, 
reproductive success, and survival of aquatic insects and fish (Waters 
1995, pp. 173-175) that serve as food sources for the waterdog (Bailey 
2005, p. 867). Potential sources of pollution and associated 
sedimentation within a watershed include virtually all activities that 
disturb the land surface, and all localities currently occupied by the 
Black Warrior waterdog are affected by varying degrees by sedimentation 
(O'Neil and Sheppard 2001, Appendix B, p. 5). Sedimentation or 
siltation is one of the most severe threats to the Black Warrior River 
(Black Warrior Riverkeeper 2012, p. 1). The Black Warrior River 
watershed receives significant pollutant loading from activities 
related to the human population and land-use activities, including 
sedimentation from construction, forestry, mining, agriculture, and 
channelization of stream segments (Black Warrior River Watershed 
Management Plan n.d., p. 4.3).
    Creation of large impoundments, behind Bankhead, Lewis, and Holt 
dams, within the Basin has flooded thousands of square hectares (acres) 
of habitat previously considered appropriate for the Black Warrior 
waterdog. Hartfield (1990, p. 7) summarized the number of miles of 
streams affected by impoundments in the Basin. He found that the entire 
main channel of the Black Warrior River, over 272 kilometers (km) (170 
miles (mi)), has been affected. Impoundments do not have the shallow, 
flowing water preferred by the species. As a result, they are likely 
marginal or unsuitable habitat for the salamander. The abundance of 
predatory fish in impoundments further renders these lakes unsuitable 
for the Black Warrior waterdog. Impoundments have been entrapments for 
    Two historical populations of the Black Warrior waterdog have been 
lost due to impoundments. Of the remaining historical populations, only 
one appears to be holding on in numbers sufficient enough to be 
captured regularly (Sipsey Fork on BNF). A second population is present 
on Locust Fork, but the numbers of waterdogs present appears low, based 
on the erratic capture success at the site. Through the use of eDNA, 
Godwin (2014, pers. comm.) identified a historical site on Yellow Creek 
as having Black Warrior waterdogs present. A couple years later, in 
2016, a Black Warrior waterdog was indeed captured in Yellow Creek. 
Further, Godwin also identified two new sites in the Basin through the 
eDNA method, but as of yet, no waterdogs have been captured (recently) 
at any of the eDNA sites. Based on evolution biology, the current known 
and suspected populations are isolated and fragmented by human-made 
barriers, further compounding the effects of inbreeding and 
contributing to the species' decline.
Summary of Factor A
    The historical loss of habitat is currently, and projected to 
continue to be, a threat to the Black Warrior waterdog. Habitat loss 
also amplifies the threat from point and nonpoint source water and 
habitat quality degradation, accidental spills, and violation of 
permitted discharges. Due to the limited extent of the habitat 
currently occupied by the species and the severity and magnitude of 
this threat, we consider that the present or threatened destruction, 
modification, or curtailment of habitat and range represents a threat 
to the Black Warrior waterdog. While changes to management and 
operating procedures have reduced impacts to the river system, ongoing 
activities continue to impact water quality.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Based on best available data, there is no evidence that 
overutilization for commercial, recreational, scientific, or 
educational purposes is a threat to the Black Warrior waterdog.

Factor C. Disease or Predation

    No diseases or incidences of predation have been reported for the 
Black Warrior waterdog. Also, Bart and Holzenthal (1985, p. 406) found 
that there is no natural evidence of predation

[[Page 69505]]

on Necturus spp. by fish in creeks and streams. Therefore, the best 
available data do not indicate that disease or predation is a threat to 
the Black Warrior waterdog.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to the Black Warrior 
waterdog discussed under other factors. Section 4(b)(1)(A) of the Act 
requires the Service to take into account, ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species.'' In relation to 
Factor D under the Act, we interpret this language to require the 
Service to consider relevant Federal, State, and Tribal laws and 
regulations, and other such mechanisms that may minimize any of the 
threats we describe in threat analyses under the other four factors, or 
otherwise enhance conservation of the species. We give strongest weight 
to statutes and their implementing regulations and to management 
direction that stems from those laws and regulations. An example would 
be State governmental actions enforced under a State statute or 
constitution, or Federal action under statute.
    The Federal Surface Mining Control and Reclamation Act of 1977, as 
amended December 22, 1987, requires all permitted mining operations to 
minimize disturbances and adverse impacts to fish, wildlife, and 
related environmental values, as well as implement enhancement measures 
where practicable. It further recognizes the importance of land and 
water resources restoration as a high priority in reclamation planning. 
The continued decline of many species, including the flattened musk 
turtle, fish, and a number of mussels in the Black Warrior Basin (Dodd 
et al. 1988, pp. 55-61; Mettee et al. 1989, pp. 12-13; Hartfield 1990, 
pp. 1-8; Bailey and Guyer 1998, pp. 77-83; Service 2000, pp. 12-13), is 
often attributed to mining activities, even though this law in effect.
    The Alabama Department of Conservation and Natural Resources 
(ADCNR) recently added the Black Warrior waterdog to its list of non-
game State protected species (ADCNR 2012, pp. 1-4). Although this 
change will make it more difficult to obtain a collecting permit for 
the species, it does not offer any additional protection for habitat 
loss and degradation. The ADCNR also recognizes the Black Warrior 
waterdog as a Priority 2 species of high conservation concern in its 
State Wildlife Action Plan due to its rarity and restricted 
distribution (ADCNR 2005, p. 298). However, this designation also does 
not offer any regulatory protections.
    Stream segments within the Black Warrior River drainage currently 
occupied by the Black Warrior waterdog have been assigned water-use 
classifications of fish and wildlife (F&W) by the Alabama Department of 
Environmental Management (ADEM) under the authority of the Clean Water 
Act of 1972. The F&W designation establishes minimum water quality 
standards that are believed to be protective of aquatic species. In the 
Locust Fork, Mulberry Fork, and other tributaries of the Black Warrior 
River occupied by the Black Warrior waterdog, a combined total of 275 
km (171 mi) have been identified on the Alabama 303(d) List (a list of 
water bodies failing to meet their designated water-use 
classifications) as impaired by siltation and nutrients (ADEM 2010, pp. 
1-3). The sources of these impairments have been identified as runoff 
from agricultural fields, abandoned surface mines, and industrial or 
municipal sites. Multiple stream reaches within the occupied habitat of 
the Black Warrior waterdog (Locust Fork, Mulberry Fork, Yellow Creek, 
and North River) fail to meet current regulatory standards.
    Similarly, even with current regulations, surviving populations are 
negatively affected by discharges, highway construction, mining 
(current and unreclaimed sites), and other activities with a Federal 
nexus (see discussion under Factor A, above).
Summary of Factor D
    Black Warrior waterdogs and their habitats are partially protected 
by Federal and State laws and regulations. However, after evaluating 
the information available on the implementation of these authorities, 
we determined that these regulatory mechanisms do not address the 
threats to the species.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 

    The remaining Black Warrior waterdog populations are isolated from 
each other by unsuitable habitat created by impoundments, pollution, 
and other factors as described under the Factor A discussion, above. 
Waterdog population densities are low even in the best localities, and 
factors related to low population compound these threats.
    Species that are restricted in range and population size are more 
likely to suffer loss of genetic diversity due to genetic drift, 
potentially increasing their susceptibility to inbreeding depression, 
decreasing their ability to adapt to environmental changes, and 
reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter 
2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is 
likely that some of the Black Warrior waterdog populations are below 
the effective population size required to maintain long-term genetic 
and population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 
105-107). The long-term viability of a species is based on the 
conservation of numerous local populations throughout its geographic 
range (Harris 1984, pp. 93-104). These separate populations are 
essential for the species to recover and adapt to environmental change 
(Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The 
level of isolation and fragmentation seen in this species makes natural 
repopulation following localized extirpations virtually impossible 
without human intervention.
    Droughts cause decreases in water flow and dissolved oxygen levels 
and increases in temperature in the river system. Studies of other 
aquatic salamander species have reported decreased occupancy, loss of 
eggs, decreased egg-laying, and extirpation from sites during periods 
of drought (Camp et al. 2000, p. 166; Miller et al. 2007, pp. 82-83; 
Price et al. 2012b, pp. 317-319).
    Associated with urbanization is the development of transportation 
system, including roads, rails, airports, locks, and docks. Accidents, 
crashes, and derailments, resulting in spills, occur along these 
transportation corridors. Since 1990, there have been over 1,200 spills 
reported, to the U.S. Coast Guard National Response Center, in the 
Basin area. One of several spills that have occurred in the Blackwater 
Basin was an event in the Black Warrior River in 2013. Approximately 
164 gallons of crude oil were accidently pumped into the river. 
Emergency response teams cleaned the river, but a sheen of crude oil 
remained visible (Taylor 2013, pers. comm.) (http://www.tuscaloosanews.com/article/20130617/NEWS/130619792). Today, the 
threat from spills remains unchanged.

[[Page 69506]]

Climate Change
    Our analyses under the Act include consideration of ongoing and 
projected changes in climate.
    According to the IPCC (2013, p. 4), ``Warming of the climate system 
is unequivocal, and since the 1950s, many of the observed changes are 
unprecedented over decades to millennia. The atmosphere and ocean have 
warmed, the amounts of snow and ice have diminished, sea level has 
risen, and the concentrations of greenhouse gases have increased.'' 
Average Northern Hemisphere temperatures during the second half of the 
20th century were very likely higher than during any other 50-year 
period in the last 500 years and likely the highest in at least the 
past 1,300 years (IPCC 2007b, p. 1). It is very likely that from 1950 
to 2012, cold days and nights have become less frequent and hot days 
and hot nights have become more frequent on a global scale (IPCC 2013, 
p. 4). It is likely that the frequency and intensity of heavy 
precipitation events has increased over North America (IPCC 2013, p. 
    The IPCC (2013, pp. 15-16) predicts that changes in the global 
climate system during the 21st century are very likely to be larger 
than those observed during the 20th century. For the next two decades 
(2016 to 2035), a warming of 0.3 degrees Celsius ([deg]C) (0.5 degrees 
Fahrenheit ([deg]F)) to 0.7 [deg]C (1.3 [deg]F) per decade is projected 
(IPCC 2013, p. 15). Afterwards, temperature projections increasingly 
depend on specific emission scenarios (IPCC 2007b, p. 6). Various 
emissions scenarios suggest that by the end of the 21st century, 
average global temperatures are expected to increase 0.3 [deg]C to 4.8 
[deg]C (0.5 [deg]F to 8.6 [deg]F), relative to 1986 to 2005 (IPCC 2013, 
p. 15). By the end of 2100, it is virtually certain that there will be 
more frequent hot and fewer cold temperature extremes over most land 
areas on daily and seasonal timescales, and it is very likely that heat 
waves and extreme precipitation events will occur with a higher 
frequency and intensity (IPCC 2013, pp. 15-16).
    Climate change has the potential to increase the vulnerability of 
the Black Warrior waterdog to random catastrophic events (e.g., 
McLaughlin et al. 2002; Thomas et al. 2004). Climate change is expected 
to result in increased frequency and duration of droughts and the 
strength of storms (e.g., Cook et al. 2004). Thomas et al. (2009, p. 
112) report that the frequency, duration, and intensity of droughts are 
likely to increase in the Southeast as a result of global climate 
Summary of Factor E
    We consider the Black Warrior waterdog vulnerable to other natural 
or manmade factors, because low population densities combined with 
fragmentation of habitat renders the Black Warrior waterdog populations 
extremely vulnerable to inbreeding depression (negative genetic effects 
of small populations) (Wright et al. 2008, p. 833) and catastrophic 
events such as flood, drought, or chemical spills (Black Warrior River 
Watershed Management Plan n.d., p. 4.4).

Cumulative Effects of Threats

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Black Warrior waterdog. Threats to the remaining Black Warrior 
waterdog populations exist primarily from two of the five threat 
factors (Factors A and E), and existing laws and regulations provide 
only minimal protection against habitat loss (Factor D). Threats also 
occur in combination, resulting in synergistically greater effects. For 
instance, in combination with the other threats identified in this 
proposed rule, a catastrophic hazardous materials spill could increase 
the species' risk of extinction by reducing its overall probability of 
persistence. Therefore, we consider hazardous material spills to be an 
ongoing significant threat to the Black Warrior waterdog due to the 
species' limited distribution, the abundance of potential sources of 
spills, and the number of salamanders that could be killed during a 
single spill event (Factor E).

Proposed Determination

    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We find that the Black Warrior 
waterdog is presently in danger of extinction throughout its entire 
range based on the severity and immediacy of threats currently 
impacting the species. The overall range has been significantly 
reduced, and the remaining habitat and populations face threats from a 
variety of factors (Factors A and E) acting in combination to reduce 
the overall viability of the species. The risks of extinction are high 
because the remaining populations are small, isolated, and have limited 
potential for recolonization (Factor E). Therefore, on the basis of the 
best available scientific and commercial information, we propose to 
list the Black Warrior waterdog as an endangered species in accordance 
with sections 3(6) and 4(a)(1) of the Act.
    We find that a threatened species status is not appropriate for the 
Black Warrior waterdog because of the species' contracted range, loss 
of habitat due to water quality degradation (sedimentation, toxins, and 
nutrients), fragmentation of the populations caused by impoundments, 
rangewide (not localized) threats, and ongoing threats expected to 
continue into the future.

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that Black 
Warrior waterdog is endangered throughout all of its range, no portion 
of its range can be ``significant'' for purposes of the definitions of 
``endangered species'' and ``threatened species.'' See the Final Policy 
on Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578, July 1, 2014).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing actions results in public 
awareness and conservation by Federal, State, Tribal, and local 
agencies; private organizations; and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies and the prohibitions against certain activities are 
discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 

[[Page 69507]]

decline by addressing the threats to its survival and recovery. The 
goal of this process is to restore listed species to a point where they 
are secure, self-sustaining, and functioning components of their 
    Recovery planning includes the development of a recovery outline, 
shortly after a species is listed, and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. If this 
species is listed, the recovery outline, draft recovery plan, and the 
final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Alabama Ecological Services Field 
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of Alabama would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Black Warrior waterdog. Information 
on our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although the Black Warrior waterdog is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Service, U.S. Forest 
Service, and Bureau of Land Management; issuance of section 404 Clean 
Water Act permits by the U.S. Army Corps of Engineers; construction and 
maintenance of gas pipeline and power line rights-of-way by the Federal 
Energy Regulatory Commission; construction and maintenance of roads or 
highways by the Federal Highway Administration; land management 
practices supported by programs administered by the U.S. Department of 
Agriculture; Environmental Protection Agency pesticide registration; 
and projects funded through Federal loan programs which include, but 
are not limited to, roads and bridges, utilities, recreation sites, and 
other forms of development.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any listed species. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to employees of the 
Service, the National Marine Fisheries Service, other Federal land 
management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for scientific purposes, to 
enhance the propagation or survival of the species, and for incidental 
take in connection with otherwise lawful activities. There are also 
certain statutory exemptions from the prohibitions, which are found in 
sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. Based on the best available information, the 
following actions are unlikely to result in a violation of section 9, 
if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, which are carried out in accordance with 
any existing regulations, permit, and label requirements, and best 
management practices; and
    (2) Normal residential development and landscape activities, which 
are carried out in accordance with any existing regulations, permit

[[Page 69508]]

requirements, and best management practices.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 the Act; this list 
is not comprehensive:
    (1) Unauthorized introduction of nonnative species that compete 
with or prey upon the Black Warrior waterdog;
    (2) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of this taxa, as defined by 
section 10(h)(1) of the Act;
    (3) Unauthorized destruction or alteration of Black Warrior 
waterdog habitat that results in destruction or loss of leaf packs and 
rocky substrate (rock crevices in the creek or stream);
    (4) Unauthorized discharge of chemicals or fill material into any 
waters in which the Black Warrior waterdog is known to occur; and
    (5) Actions, intentional or otherwise, that would result in the 
destruction of eggs or cause mortality or injury to hatchling, 
juvenile, or adult Black Warrior waterdogs.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Section 4(a)(3) of the Act requires the Secretary, at the time a 
species is listed as endangered or threatened, to designate critical 
habitat to the maximum extent prudent and determinable. Elsewhere in 
this issue of the Federal Register, we propose to designate critical 
habitat for the Black Warrior waterdog.

Required Determinations

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 
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.

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared 
in connection with listing a species as an endangered or threatened 
species under the Endangered Species Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this proposed rule is 
available on the Internet at http://www.regulations.gov and upon 
request from the Alabama Ecological Services Field Office (see FOR 


    The primary authors of this proposed rule 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.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:


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.

2. Amend Sec.  17.11(h) by adding an entry for ``Waterdog, Black 
Warrior'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under AMPHIBIANS to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                                                                                              Listing citations
           Common name               Scientific name        Where listed         Status         and applicable
                                                  * * * * * * *
                                                  * * * * * * *
     Waterdog, Black Warrior       Necturus             Wherever found.....  E               [Federal Register
                                    alabamensis.                                              citation of the
                                                                                              final rule]
                                                  * * * * * * *

    Dated: September 26, 2016.
Stephen Guertin
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-24119 Filed 10-5-16; 8:45 am]