# Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Big Sandy Crayfish and Endangered Species Status for the Guyandotte River Crayfish > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-07744 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 7, 2016 - **Citation:** 81 FR 20450 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R5-ES-2015-0015; 4500030113] RIN 1018-BA85 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Big Sandy Crayfish and Endangered Species Status for the Guyandotte River Crayfish AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the Big Sandy crayfish ( Cambarus callainus ), a freshwater crustacean from Kentucky, Virginia, and West Virginia, and endangered status for the Guyandotte River crayfish ( C. veteranus ), a freshwater crustacean from West Virginia. This rule adds these species to the Federal List of Endangered and Threatened Wildlife. DATES: This rule is effective May 9, 2016. ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R5-ES-2015-0015 and at our Web site at: http://www.fws.gov/northeast/crayfish/ . Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours, at: U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, MA 01035; telephone 413-253-8615; facsimile 413-253-8482. FOR FURTHER INFORMATION CONTACT: Martin Miller, Chief, Endangered Species, U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, MA 01035; telephone 413-253-8615; facsimile 413-253-8482. Persons who use a telecommunications device for the deaf (TDD) may 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, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. This rule makes final the listing of the Big Sandy crayfish ( Cambarus callainus ) as a threatened species and the Guyandotte River crayfish ( C. veteranus ) as an endangered species. The basis for our action. Under the Endangered Species Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Guyandotte River crayfish is in danger of extinction ( i.e., is endangered) and that the Big Sandy crayfish is likely to become in endangered within the foreseeable future ( i.e., is threatened) due primarily to the threats of land-disturbing activities that increase erosion and sedimentation, which degrade the stream habitat required by both species (Factor A), and of the effects of small population size (Factor E). Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers and the public to comment on our listing proposal during two comment periods, for a total of 90 days. We considered all comments and information we received during the comment periods. Previous Federal Actions Please refer to the proposed listing rule for the Big Sandy crayfish and the Guyandotte River crayfish (80 FR 18710; April 7, 2015) for a detailed description of previous Federal actions concerning these species. Summary of Comments and Recommendations In the proposed rule published on April 7, 2015 (80 FR 18710), we requested that all interested parties submit written comments on the proposal by June 8, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Lexington Herald on April 9, 2015, and in the Coalfield Progress and Charleston Gazette on April 10, 2015. We did not receive any requests for a public hearing. On December 15, 2015 (80 FR 77598), we reopened the public comment period for an additional 30 days to make the results of two 2015 summer surveys of the species available for public review and comment. During the initial 60-day public comment period (April 7, 2015, to June 8, 2015) and the reopened 30-day comment period (December 15, 2015, to January 14, 2016), we received public comments from 42,026 individuals or organizations. Of these, 41,974 were form letters submitted by individuals associated with several nongovernmental organizations (NGOs) that expressed support for the listing of the two species but did not provide any new or substantive information. One NGO also submitted a separate comment letter on behalf of itself and 26 other NGOs. This comment letter was supportive of listing the Big Sandy and Guyandotte River crayfishes and generally reiterated information from the proposed rule. We also received five comments from government agencies. Two were generally supportive of the proposed listing, one was opposed, and two did not offer an opinion. We received 46 comments from individuals, including peer reviewers and various industry groups or companies. Of these 46, 18 were supportive of listing the two species, 14 were opposed, and 7 did not offer an opinion. The remaining seven public commenters submitted comments on topics related to other issues not specific to the listing proposal, such as general criticism of the Act (16 U.S.C. 1531 et seq. ) or of coal mining. Because these seven comments are not substantive regarding the proposed listing rule, we do not address them further. Comments regarding recommendations for research or conservation actions are outside the scope of this final listing rule, but such recommended actions will be considered during the recovery planning process. All substantive information provided during the comment periods is summarized below and has either been incorporated directly into this final determination or is addressed in the response to comments below. Comments From Peer Reviewers In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven knowledgeable individuals with expertise in the field of astacology (the study of crayfishes) and stream ecology. We received individual responses from six of these peer reviewers. In general, the peer reviewers all commented that we had thoroughly and accurately summarized the best available scientific data. We incorporated revisions into the final rule as a result of the peer reviewer comments. Any substantive comments are discussed below. (1) Comment: We received conflicting comments from five of the six peer reviewers about the sufficiency of the data from which we determined the population status and trends for the Big Sandy or Guyandotte River crayfishes. Two of the reviewers indicated that additional quantitative evidence was needed to support our conclusions regarding declines in range, population, or abundance for the Big Sandy crayfish, including the historical presence of the species in the lower Levisa Fork and Tug Fork basins. In contrast to the concern regarding a lack of data, a third reviewer commented that the proposed rule was based on more quantitative data than are available for most crayfish species, which supports a fourth reviewer's conclusion that the recent survey data were sufficient to suggest declining ranges and possibly abundances for both species. Finally, a fifth reviewer observed that, while data to inform precise population trends for these (and most other) crayfish species are lacking, the decline in population and range for both the Big Sandy and Guyandotte River crayfishes was undebatable. Our Response: The Act requires that the Service make listing determinations based solely on the best scientific and commercial data available. When we published the proposed rule on April 7, 2015 (80 FR 18710), we relied on the best quantitative and qualitative data available at that time to determine the status of each species, including previous crayfish surveys and habitat assessments, range maps, genetic evidence, analysis of museum specimens, and expert scientific opinion. As we discussed in the proposed rule, the available scientific data indicated that the range of each species has been reduced and that most existing subpopulations of these species had low abundance. Since publishing the proposed rule, the Service funded additional crayfish surveys in the Upper Guyandotte and Big Sandy River basins to better inform our final analysis. The results of these new crayfish surveys (see Loughman 2015a, entire; Loughman 2015b, entire) generally confirmed our previous analysis of each species' status and range, and are discussed in more detail under Summary of Biological Status and Threats, below. The surveys found two new stream occurrences (four sites) for the Big Sandy crayfish in the lower Tug Fork basin (Loughman 2015a, pp. 10-17). These data, along with the 2009 confirmation of the species in the lower Levisa Fork, support our conclusion that the Big Sandy crayfish historically occupied suitable habitat in the lower portions of these river basins. As discussed in the proposed rule, other lines of evidence that the species once occupied a much greater range in the lower reaches of the Levisa and Tug Fork basins than it currently does include: (1) Genetic evidence that the range of the species within the Big Sandy basin was once much larger than it is presently; (2) the opinion of crayfish experts who have surveyed for the species; and (3) the analogous range reduction of the closely related Guyandotte River crayfish, which is subject to similar environmental stressors and threats as the Big Sandy crayfish. Additionally, the new occurrence locations in the lower Tug Fork, specifically the three Pigeon Creek sites, indicate an increase in the Big Sandy crayfish's redundancy above what was known when we published the proposed rule. This increase in redundancy also contributes to the species' overall resiliency and is discussed under Summary of Biological Status and Threats, below. (2) Comment: One peer reviewer commented that the existing scientific data may have been insufficient to provide for an accurate assessment of the habitat preferences of the Big Sandy crayfish. This reviewer noted that our cited sources consisted of status and distribution surveys that were not designed to determine specific microhabitats used by the species among the suite of all habitats present. However, this reviewer further stated that the available information does likely support that the Big Sandy crayfish is associated with unembedded slab boulders. Our Response: As we described in the proposed rule, there is consensus among crayfish experts that have surveyed for the Big Sandy and Guyandotte River crayfishes that these species are naturally associated with the faster-flowing sections of streams and rivers because these sections maintain an abundance of unembedded slab boulders that provide shelter for the species. Following publication of the proposed rule, the Service funded additional crayfish surveys (224 individual survey sites) throughout the ranges of both species (see Loughman 2015a, entire; Loughman 2015b, entire). All Big Sandy and Guyandotte River crayfish collected during these surveys were associated with faster-flowing waters in streams with unembedded substrates and slab boulders. At sites where these habitat conditions were degraded or absent, more generalist crayfish species ( e.g., the spiny stream crayfish ( Orconectes cristavarius )) were dominant and were found utilizing other instream habitats including woody debris snags and leaf packs. Neither the Big Sandy crayfish nor Guyandotte River crayfish was found associated with woody debris or leaf packs. (3) Comment: One peer reviewer questioned our conclusion that the Flannagan Reservoir posed a barrier that prevented Big Sandy crayfish movement between the Pound River and the Cranes Nest River subpopulations. The reviewer correctly noted that the Flannagan Reservoir was not sampled for the Big Sandy crayfish. The reviewer referenced a scientific study on a different species of stream crayfish native to Arkansas and Missouri that had been found to inhabit a reservoir in Missouri as evidence that the Flannagan Reservoir might not be a barrier to the Big Sandy crayfish. Our Response: We are not aware of any surveys for the Big Sandy crayfish in the Flannagan Reservoir, but because reservoirs generally lack flowing water and accumulate bottom sediments at an accelerated rate (Baxter 1997, p. 259; Appalachian Power Company 2008, pp. 28-33), it is reasonable to conclude that the bottom substrate in the Flannagan Reservoir (and the lower reaches of the Pound and Cranes Nest Rivers, which form arms of the reservoir) lacks unembedded slab boulders and is therefore likely not suitable habitat for the Big Sandy crayfish. However, because no physical barrier separates the subpopulations of Big Sandy crayfish in the Pound River and Cranes Nest Rivers, we do not rule out that these subpopulations may interact with each other, perhaps seasonally when reservoir levels are lowered and the lower portions of these rivers temporarily assume more riverine characteristics. However, the best available data support our ongoing conclusions that the Flannagan Dam poses a barrier between the Pound River and Cranes Nest River subpopulations and the wider Russell Fork and Levisa Fork populations because it physically separates areas of suitable habitat, and that habitat fragmentation is a threat to the species. (4) Comment: Several peer reviewers commented on other potential threats to the Big Sandy and Guyandotte River crayfishes and suggested that we discuss the effects of climate change and dams on the two species. Our Response: We agree that the potential effects of dams and climate change on the two species warrant further analyses; we have incorporated these below, under Factors A and E, respectively, in this final rule. (5) Comment: One peer reviewer examined the genetic data in GenBank® (a database of genetic sequence data maintained by the National Center for Biotechnology Information; see http://www.ncbi.nlm.nih.gov/genbank/ ) and commented that the available molecular evidence suggests that the Big Sandy and Guyandotte River crayfishes are distinct taxonomic entities that are only distantly related to each other. The reviewer also commented that additional genetic analysis of coexisting Cambarus crayfish species in the region is needed to better understand their relationships. Our Response: We appreciate this additional independent analysis that supports our conclusion that the Big Sandy and Guyandotte River crayfishes are separate taxonomic entities. And while we also agree that additional genetic research on the native crayfish of this region would help inform future conservation efforts, we must base our listing decision on the best available scientific data. (6) Comment: One peer reviewer suggested several potential new lines of inquiry or alternative methods of analyzing or presenting existing data that would provide additional support for our proposed decision to list the Big Sandy and Guyandotte River crayfishes. For example, the commenter suggested we use probabilistic analyses of State water quality data to better infer the degree of impairment across the species' ranges. Our Response: We appreciate the reviewer's suggestions and recognize that alternative analyses could be used to assess the primary and contributing threats affecting the Big Sandy and Guyandotte River crayfishes. However, the Act requires that the Service make listing determinations based solely on the best scientific and commercial data available, and the analyses suggested by the reviewer would require data that are not available. When we published the proposed rule on April 7, 2015 (80 FR 18710), we relied on the best quantitative and qualitative data available at that time to determine the status of each species. And while there may be other methods for analyzing the existing data, we concluded, and the six scientific peer reviewers (including this reviewer) generally concurred, that our analysis was sufficient to make a listing determination for these two species. We welcome any new data the reviewer can provide and may consider his suggestions during the recovery planning process to help inform potential conservation measures. Comments From Federal Agencies (7) Comment: One Federal agency stated that it works with landowners on a voluntary basis to implement conservation measures, some of which may provide direct and indirect benefits to the Big Sandy and Guyandotte River crayfishes or their habitats. In order to continue their successful conservation partnerships with private landowners, the Federal agency expressed a willingness to work with the Service to develop mutually acceptable avoidance measures and practices that will benefit these species. Our Response: The Service appreciates the work of the Federal agency and looks forward to working with them as conservation partners regarding the Big Sandy and Guyandotte River crayfishes. Comments From States (8) Comment: The Kentucky Department of Fish and Wildlife Resources (KDFWR) commented that it is difficult to determine Big Sandy crayfish population changes based on the supporting documents and survey information. The agency also commented that the species' present distribution appears to differ from its historical distribution, but that it is difficult to determine the magnitude and implication of these changes. The KDFWR also concurred that the available information indicates that physical habitat quality is correlated with the presence or absence of the Big Sandy crayfish. Our Response: We appreciate the KDFWR's review and comments on the proposed rule and acknowledge the challenges in analyzing the best available data to determine the status of the Big Sandy crayfish (please see our response to Comment 1, above). We look forward to working with the KDFWR as a conservation partner as we develop a recovery strategy for the species. (9) Comment: The Virginia Department of Game and Inland Fisheries (VDGIF) commented that its data on the Big Sandy crayfish support our determination to list the species as endangered. The agency confirmed that in Virginia, the species is extant in at least 10 sites in the Russell Fork watershed and 1 site in the Levisa Fork watershed. The VDGIF also provided information on an occurrence location within the Russell Fork watershed that we were unaware of and noted two locations in the upper Levisa Fork watershed from which the species appears to have been extirpated. However, the agency does not believe the addition of the new occurrence location affects the listing proposal. Our Response: We appreciate the VDGIF's additional data on Big Sandy crayfish occurrence locations in Virginia, and we have incorporated this information into this final rule. We look forward to continuing our conservation partnership with the VDGIF as we develop a recovery strategy for the species. (10) Comment: The VDGIF commented that while recent survey data describe Big Sandy crayfish distribution in the Commonwealth, data on population sizes and trends do not exist. They noted that while Big Sandy crayfish surveys conducted in 2009 (see Thoma 2009b) were not necessarily designed to determine the species' population numbers, the agency interpreted the results as evidence that the Big Sandy crayfish subpopulations in the Russell Fork, Indian Creek, and Dismal Creek appeared to be stable and reproducing, and the subpopulations in the Pound River and Cranes Nest River appeared smaller and did not appear to be stable. Our Response: As we indicated in the proposed rule, we agree that quantitative data on which to base population estimates for this species are sparse, and we concur that, based on the best available data, the species' health appears to vary at different occurrence locations throughout its range. Following publication of the proposed rule, the Service funded additional crayfish surveys in the Big Sandy River basin to better inform our final analysis (Loughman 2015a, entire). These new data confirmed that the Big Sandy crayfish is generally present throughout the Russell Fork basin, with eight of the nine surveyed stream systems supporting the species. However, in the upper Levisa Fork basin, six streams were surveyed, and the species was confirmed to be present in only one. The 2015 data also indicated that the species is notably absent from many other streams within its range, especially in the lower Levisa Fork and Tug Fork basins. Additionally, in January 2016, the VDGIF provided the Service with 12 Big Sandy crayfish survey and relocation reports for work conducted in the Russell Fork and upper Levisa Fork watersheds in Virginia between 2009 and 2014. These crayfish survey and relocation efforts were associated with infrastructure projects ( i.e., pipeline stream crossings, bridge replacements, culvert replacement) and generally confirmed the species' presence in streams for which we already had occurrence records. Because most of these efforts were intended to remove all Big Sandy crayfish from pending construction areas, the raw numbers of individual crayfish captured provides some indication of the species' population densities and supports our conclusion (80 FR 18710, pp. 18719-18720) that where suitable habitat conditions exist, about 20 to 25 individual Big Sandy (or Guyandotte River) crayfish should be present at a survey location. The numbers of individual crayfish captured at the Russell Fork sites surveyed (n=22) ranged from 0 to 99, with a mean of 21.7 Big Sandy crayfish per site. (11) Comment: The VDGIF commented that the available evidence indicates that the Russell Fork and Levisa Fork subpopulations of Big Sandy crayfish are genetically distinct and may warrant conservation as separate management units. Our Response: We agree that the best available scientific data indicate there are genetic distinctions between the various subpopulations of the Big Sandy crayfish. The potential species management implications of these genetic differences will be discussed during the recovery planning process. (12) Comment: The VDGIF commented that a female crayfish with instars was found during the month of May, which could indicate either that late-breeding females from the previous mating season overwinter instars longer than previously reported or that the species can spawn earlier in the year than previously reported. Our Response: We appreciate this new information. While this observation does not alter our listing determination, it may be useful in developing the species' recovery plan and other conservation measures. (13) Comment: The VDGIF provided comments related to critical habitat and future recovery options for the Big Sandy crayfish. Our Response: We appreciate the VDGIF's interest in contributing to the conservation of the Big Sandy crayfish. However, these comments related to critical habitat and recovery planning are outside the scope of this final listing rule. We will consider these comments when developing a proposed critical habitat designation, and we look forward to working with the agency as we develop a recovery plan for the species. (14) Comment: The West Virginia Department of Environmental Protection, Division of Mining and Reclamation (WVDEP/DMR) concurred with our conclusion that both species have reduced ranges and generally low abundances at existing occurrence locations, but the agency recommended the two species not be listed at this time. The WVDEP/DMR requested that additional time be afforded to research existing museum, academic, and government crayfish collections to verify the distribution and abundance of the two species within their described ranges. Our Response: We appreciate the WVDEP/DMR's comments on the proposed listing rule and their request that additional time be afforded to conduct more research. However, section 4(b)(6)(A) of the Act provides a statutory timeline for making listing determinations: within 1 year from the date a proposed regulation is published, the Secretary will either publish a final regulation, provide notice that the proposed regulation is being withdrawn, or provide notice that the 1-year period is being extended for up to 6 months because of substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination. In addition to the statutory time limitations described above, the Act requires that the Secretary make listing determinations based solely on the best scientific and commercial data available. When we published the April 7, 2015, proposed rule, we relied on the best scientific and commercial data available at that time to determine the distribution and abundance of the Big Sandy and the Guyandotte River crayfishes. As described in the proposed rule, these data included a Service-funded biological status review of the two species, which included an examination of records and vouchered specimens in all known crayfish collections from the region. These collections are held by the United States National Museum, Illinois Natural History Survey, Eastern Kentucky University, Ohio State University, West Liberty University, and the Virginia Department of Game and Inland Fisheries. The only relevant new data we received during the public comment period were three new stream occurrence records, two for the Big Sandy crayfish (Pigeon Creek and lower Tug Fork mainstem) and one for the Guyandotte River crayfish (Clear Fork). We used this information in developing this final rule. We received no other substantive information regarding the sufficiency or accuracy of the available data and note that the six scientific peer reviewers indicated that we conducted a thorough review and analysis of the best available data. There is no substantial disagreement regarding the sufficiency or accuracy of the available data to indicate the need for a 6-month extension. (15) Comment: The WVDEP/DMR expressed concern that only three Big Sandy crayfish survey sites were identified in the West Virginia portion of the species' range and that this indicated insufficient information regarding the species' status in West Virginia. Our Response: As we indicated in Table 2b in the proposed rule (80 FR 18710, p. 18721), between 2006 and 2014, 25 individual sites in West Virginia were surveyed for the Big Sandy crayfish. Of these, the species was confirmed at four of these sites. During the summer of 2015, the Service funded additional survey work that included 32 sites in West Virginia. The Big Sandy crayfish was confirmed at 11 of these sites. These new data provided the first occurrence records for the species in the lower Tug Fork and confirmed the species' presence in 7 of 17 stream systems in the Tug Fork basin (this includes streams in both Kentucky and West Virginia). This information has been incorporated into this final rule. (16) Comment: The WVDEP/DMR disagreed with our inclusion of water quality degradation, specifically high conductivity levels, as one of the greatest threats to the two crayfish species. The agency contends that the evidence provided in the proposed rule indicates that bottom sedimentation is the primary threat to the species and that because of the marine ancestry of the taxonomic order Decapoda (which includes crayfish), the Big Sandy and Guyandotte River crayfishes are not likely sensitive to elevated conductivity levels. Our Response: As we indicated in the proposed rule, the best available scientific data indicate that degradation of stream habitat from sedimentation and substrate embeddedness is the primary threat to the Big Sandy and Guyandotte River crayfishes. However, the best available data also suggest that water quality degradation is likely a contributing threat to these species. The Service funded new crayfish surveys during the summer of 2015 that compared crayfish presence and abundance (as catch per unit effort (CPUE)) with various habitat parameters, including conductivity levels (Loughman 2015a, entire; Loughman 2015b, entire). The results of both of these studies clearly demonstrated that high instream habitat quality, as measured by the Qualitative Habitat Evaluation Index (QHEI), is positively correlated with the presence of both species. While Loughman found a statistical relationship between high conductivity levels and the absence of Guyandotte River crayfish, the data for the Big Sandy crayfish did not indicate such a relationship (Loughman 2015a, entire; Loughman 2015b, entire). However, studies of a different crayfish species did indicate that high conductivity levels were harmful, especially during certain crayfish life stages (see “Water Quality Degradation,” under the Factor A discussion in Summary of Factors Affecting the Species). (17) Comment: The West Virginia Division of Natural Resources (WVDNR), which funded some of the survey work referenced in the proposed rule, indicated that they have no additional data regarding the status of the two species and generally concurred with our analysis and conclusions that the existing data indicate that the ranges of both the Big Sandy and Guyandotte River crayfishes have decreased from their historical distributions, that existing populations are small and vulnerable, and that habitat degradation continues to affect both species. Based on the available data, the WVDNR concurred that listing of the two species is warranted. Our Response: We appreciate the WVDNR's contribution toward assessing the status of the two species within West Virginia and their comments on the proposed rule. We look forward to continuing our conservation partnership with the WVDNR as we develop a recovery strategy for these species. Comments From the Public (18) Comment: Several commenters requested that the 60-day public comment period be extended by 60 to 180 days to provide additional time to: (1) Review the available data; (2) seek new data; (3) examine the data in light of the taxonomic split of Cambarus callainus from C. veteranus or; (4) prepare comments. Our Response: The 60-day comment period for the April 7, 2015, proposed rule closed on June 8, 2015. At that time, we declined to extend the comment period because we intended to reopen the comment period after the results of new surveys became available. During the summer of 2015, the Service funded those surveys, as discussed above. On December 15, 2015, the results of these survey efforts were made available to the public and the public comment period was reopened for 30 days (80 FR 77598) to afford the public an opportunity to comment on these survey results and to submit any new data or analysis that became available since the close of the initial comment period. This reopened comment period closed on January 14, 2016. We received six new comments during the reopened comment period, including substantive information that has been incorporated into this final rule. Because the two public comment periods totaled 90 days and because we received few comments during the reopened comment period, we believe that there has been sufficient time for the public to review and provide comments on the proposed rule and supporting information. While we welcome new information about these species at any time, as previously stated, the Service must make listing determinations based solely on the best available data and within certain statutory timeframes (see our response to Comment 14). (19) Comment: Several commenters expressed concern that we published the proposed listing rule prior to submitting it for peer review or that we did not seek input from the State wildlife agencies. Our Response: In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited the expert opinion of seven independent specialists regarding the pertinent scientific or commercial data and assumptions related to the proposed listing of the Big Sandy and Guyandotte River crayfishes. Our policy provides that this process take place during the public comment period on the proposed rule. Prior to drafting the proposed rule, we did seek input from the State wildlife or environmental resource agencies in Kentucky, Virginia, and West Virginia. We also submitted notice of the proposed rule to the affected States in accordance with the Act. In response, we received substantive data and/or comments from the Kentucky Division of Water (KDOW), the VDGIF, the WVDEP/DMR, and the WVDNR. We addressed the agency comments (see Comments from States, above) and incorporated them into this rule where appropriate. As we discussed above, these comments generally supported our analysis in the proposed rule. We note also that much of the recent survey work for the Big Sandy and Guyandotte River crayfishes (see Thoma 2009b; Thoma 2010; Loughman and Welsh 2010) was funded by several of these same State agencies. (20) Comment: Several commenters stated that we should withdraw or postpone our listing decision or that we should make a “warranted but precluded” finding until more data are available upon which to base our listing decisions. Some commenters stated that the Service's timeline for developing the listing rule was governed by the settlement agreement with the Center for Biological Diversity rather than sufficient study or data development. Our Response: The Act requires that we make listing determinations based solely on the best scientific and commercial data available. As we discussed in response to Comment 1, above, when we published the proposed rule on April 7, 2015 (80 FR 18710), we relied on the best quantitative and qualitative data available at that time. Furthermore, as we discussed previously, the Act requires us to, within 1 year after the date the proposed rule is published, either publish a final regulation, provide notice that the proposed regulation is being withdrawn, or provide notice that the 1-year period is being extended for up to 6 months because of substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination. While some commenters disagreed with our interpretation of the best available data or our conclusions, we received no new substantive data that would indicate the listing proposal should be withdrawn or that substantial disagreement existed regarding the sufficiency or accuracy of the available data. A “warranted but precluded” finding means the Service has enough information to list a species as endangered or threatened, but is precluded from undertaking the rulemaking process because of other actions for species with higher conservation priorities. Given the best available scientific data that indicated the Guyandotte River crayfish was known only from a single location and was subject to ongoing threats to the species' habitat and to individual crayfish, the Guyandotte River crayfish was the Service's highest priority at the time. In addition, the data for the Big Sandy crayfish indicated that it too was in decline and facing threats similar to those faced by the Guyandotte River crayfish. Therefore, we appropriately prioritized the proposed listing of both species. These determinations were within the Service's discretion. (21) Comment: Several commenters expressed concern that if the Big Sandy and Guyandotte River crayfishes are listed, various extractive industries in the region would be negatively affected or off-road vehicle (ORV) trail development would be restricted. The commenters believe listing of either or both species would cause economic harm to the industries or local communities. Our Response: While we appreciate the concerns about the possible economic impact of potential management actions that may result from listing the Big Sandy and Guyandotte River crayfishes, the Act does not allow us to factor those concerns into our listing decision. Rather, listing decisions under the Act must be made solely on the basis of the best scientific and commercial data and in consideration of the five factors in section 4(a)(1) of the Act. That said, we are committed to working with industry organizations, State and Federal agencies, local communities, ORV groups, and other stakeholders to develop protections for the two crayfish species and their habitats while allowing continued use of the region's resources. (22) Comment: One commenter expressed that all of the information the Service relied upon in making the proposed listing should be made readily available ( i.e., in electronic form) to the public. Our Response: When we published the proposed rule and opened the public comment period, we included an electronic version of our reference list with citations for all of the data we relied upon in drafting the proposed rule. In the proposed rule, we also provided contact information and instructions to allow the public to inspect the supporting documentation at the U.S. Fish and Wildlife Service, Northeast Regional Office. We note that we received no requests to review the supporting documentation. (23) Comment: Several commenters stated that we did not articulate the needed conservation and recovery measures for the two species or how listing either species would add to existing conservation efforts. Our Response: We appreciate the commenters' concern for the conservation and recovery of these species. As we discussed under the heading Available Conservation Measures in the April 7, 2015, proposed rule (80 FR 18710, p. 18736), the general conservation benefits of listing include increased public awareness; conservation by Federal, State, Tribal, and local agencies and private organizations; and prohibitions of certain practices. The Act also encourages cooperation between stakeholders and calls for recovery actions for listed species. However, articulating these measures or describing how listing will aid conservation of the species is not a standard for listing a species under the Act, but will be developed through the recovery planning process for both species. (24) Comment: Several commenters claimed that we did not adequately consider the positive effects existing Federal and State environmental laws ( e.g., Clean Water Act (CWA; 33 U.S.C. 1251 et seq. ), Surface Mining Control and Reclamation Act of 1977 (SMCRA; 30 U.S.C. 1201 et seq. ), and others), regulations, and best management practices (BMPs) have had on the two species and stated that because of the protections afforded by these regulatory mechanisms, listing under the Act is not necessary. Our Response: We agree that the various Federal and State environmental regulations and BMPs, when fully complied with and enforced, have resulted in improvements in water and habitat quality when compared to conditions prior to enactment of these laws. However, as we described in the April 7, 2015, proposed rule (80 FR 18710, pp. 18724-18729, 18732) and this final rule, State water quality reports, published scientific articles, and expert opinion indicate that the aquatic habitat required by the Big Sandy and Guyandotte River crayfishes continues to be degraded despite these regulatory mechanisms. The best available scientific data demonstrate that the range of the Guyandotte River crayfish has declined since enactment of the CWA, the SMCRA, and the various other regulations and BMPs. And although we have less temporal data for the Big Sandy crayfish, the genetic data and expert opinion strongly suggest that this pattern of range reduction is similar for that species. We also emphasize that the threats to the Big Sandy and Guyandotte River crayfishes that we discuss under Factor E, below, are not addressed by any existing regulatory mechanism. Therefore, we conclude that the best available data indicate that existing regulations, by themselves, have not been sufficient to prevent the continued degradation of the habitat of these two species. (25) Comment: One commenter stated that because the Big Sandy and Guyandotte River crayfishes survived through the severe environmental degradation that characterized the region's largely unregulated industrialization in the early to mid-1900s (see the Historical context discussion in the April 7, 2015, proposed rule; 80 FR 18710, pp. 18723-18724), modern-day regulated activities are much less harmful and do not pose a risk to the species. Our Response: As we discussed in the proposed rule, the past industrialization of the region severely degraded the habitat required by the Big Sandy and Guyandotte River crayfishes and likely led to their extirpation from many streams within their ranges. The crayfish subpopulations that survived through this period of widespread environmental degradation are now largely isolated from one another because of dams or inhospitable intervening habitat (resulting from past and ongoing activities) in each river system and individual crayfish are found in low numbers at most of the remaining sites. These now isolated and generally low-abundance crayfish subpopulations do not maintain the same resiliency or redundancy of the original widespread and interconnected (at least initially) populations that were subjected to the rapid industrialization of the region in the 1900s and are at an increased risk of extirpation (see Factor E discussion, below). We, therefore, conclude that current regulated activities, while not causing widespread degradation on the scale seen in the 1900s, continue to pose a risk to the two species as they now exist. (26) Comment: Several commenters expressed that the proposed rule incorrectly identified or focused on coal mining and timber operations as specific threats to the Big Sandy and Guyandotte River crayfishes and that we ignored other threats, including human development, roads, dams, and natural flood events. Our Response: As we described in the Factor A discussion under the Summary of Factors Affecting the Species in the April 7, 2015, proposed rule (80 FR 18710), the primary threat to the Big Sandy and Guyandotte River crayfishes is habitat degradation caused by erosion and sedimentation from land-disturbing activities, including coal mining, commercial timber operations, road construction, ORV use, oil and gas development, and unpaved road surfaces (80 FR 18710, pp. 18722-18731). We also identified several contributing factors related to human population growth in the area, including wastewater discharges and unpermitted stream channel dredging. The best available scientific data, including published articles and State water quality reports, support our conclusion that these activities degrade the aquatic habitat required by these species. In the proposed rule, we did not identify natural flood events as a threat to either the Big Sandy or the Guyandotte River crayfishes. Because these species evolved to live in the fast-flowing streams and rivers in the Appalachian Plateaus physiographic province, where episodic flood events are natural and recurring phenomena, we did not consider floods as a threat to either species' existence. However, as we discussed in the proposed rule, and below in this final rule (see “Residential/Commercial Development and Associated Stream Modifications” under the Factor A discussion in Summary of Factors Affecting the Species), human attempts to modify the streams and rivers to control flooding or mitigate flood damage may degrade the habitat that these species require. In the proposed rule, we discussed the effects of stream dredging or bulldozing on the habitat of these species, and while we did not list dams as specific threats, we did identify habitat fragmentation, caused at least in part by dams, as a threat. Based on input from some peer reviewers and public commenters, we have reconsidered the effects of dams on the two species and have added new language to this final rule discussing direct historical aquatic habitat loss resulting from reservoir creation. (27) Comment: Two commenters that expressed concern about our finding that forestry is a contributing threat to the Big Sandy and Guyandotte River crayfishes provided information on the implementation rates and effectiveness of forestry BMPs and cited various studies purported to demonstrate that forestry BMPs minimize erosion and sediment transport to streams below levels that degrade aquatic habitats and/or harm aquatic species, including the Big Sandy and Guyandotte River crayfishes. One of the commenters also expressed that our estimate of soil erosion from timber harvesting appears to be too high. Our Response: We appreciate the commenters' support of forestry BMPs as a means of protecting water quality, and we concur that when properly implemented, forestry BMPs can reduce erosion and sedimentation levels, especially as compared to past forestry practices. However, as we noted in the April 7, 2015, proposed rule (80 FR 18710), the best available data indicate that even when forestry BMPs are properly implemented, erosion rates at timbered sites, skid trails, unpaved haul roads, and stream crossings are significantly higher than from undisturbed sites (80 FR 18710, p. 18728). We concur that the best available data indicate that Statewide BMP implementation rates for commercial forestry operations in Kentucky, Virginia, and West Virginia are generally high. However, as we noted in the proposed rule, in Kentucky and West Virginia, some categories of forestry, such as tree clearing in advance of coal mining, gas drilling, or other construction activities, are specifically exempted from implementing forestry BMPs. Regardless of specific forestry BMP implementation rates or situational efficacies, the State water quality monitoring reports (WVDEP 2012; KDOW 2013; VADEQ 2014) list timber operations (along with mining, roads, urban development, agriculture, and riparian clearing) as contributing excess sediments to streams and rivers within the ranges of the Big Sandy and Guyandotte River crayfishes. Although we do not have sufficient data to produce comprehensive sediment budgets for each land-disturbing activity, in the proposed rule we did use the best available data to estimate the annual erosion potential within the ranges of the two species and stated that “. . . if the forest is undisturbed, about 3,906 tonnes (3,828 tons) of sediment will erode, while logging the same area will produce perhaps 67,158 to 149,436 tonnes (65,815 to 146,447 tons) of sediment” (80 FR 18710, p. 18730). One commenter indicated these estimates appeared too high and used data from much older studies to produce lower estimates. This comment led to our discovering two errors in our original calculations. However, upon correcting these errors (one transcription error and one unit conversion error), we have revised the estimated erosion rate from an undisturbed forested site in the southern Appalachians from 0.31 tonnes per hectare (ha) per year (yr) (0.12 tons per acre (ac) per year (yr)) to 0.47 tonnes/ha/yr (0.21 tons/ac/yr). This results in our original estimate of erosion from undisturbed forest, “3,906 tonnes (3,828 tons)”, being corrected to “5,922 tonnes (6,456 tons).” We also corrected a “tonnes” to “tons” conversion error (“65,815 to 146,447 tons” is in error and should be “73,173 to 162,641 tons”). As to the commenter's use of older studies (dated 1965 to 1979) to estimate lower erosion potentials, we concluded that the data we used (see Hood et al. 2002) rely on an improved methodology and constitute the best available data. Based on our estimate of annual, ongoing soil erosion from rotational forestry within the ranges of the Big Sandy and Guyandotte River crayfishes, and because these species appear to be particularly sensitive to stream sedimentation and bottom embeddedness, we maintain that sedimentation resulting from forestry is likely a contributing threat to these species. We are also committed to working with State and Federal agencies, the timber industry, and landowners to help minimize erosion from commercial forestry operations and maintain the instream habitat quality for these species. (28) Comment: Several commenters questioned our determination that the Big Sandy and Guyandotte River crayfishes are distinct species or expressed concern that the taxonomic change confounds the interpretation of earlier survey reports. Commenters stated that prior to our making a final listing determination, studies on possible interbreeding of the two crayfish populations or on variation in demographic traits among conspecific populations should be conducted. Our Response: As we described in the April 7, 2015, proposed rule (80 FR 18710), our determination that the Big Sandy crayfish and the Guyandotte River crayfish are distinct species was based upon a peer-reviewed scientific article, which represented the best available scientific data. We did not receive any substantive data during the public comment period, nor are we aware of any new data, that contradict these genetic and morphological data demonstrating that the Big Sandy crayfish and Guyandotte River crayfish are distinct, reproductively isolated species. In addition, one of the peer reviewers conducted an independent analysis of the available genetic data and concluded that the taxonomic split is valid (see Comment 5, above). We do not agree that the taxonomic split of the Big Sandy crayfish and the Guyandotte River crayfish confounds the interpretation of earlier survey reports. While historically the two species were identified collectively as Cambarus veteranus, we have little evidence that earlier surveys routinely confused C. veteranus with any other crayfish species (we discussed exceptions to this in the April 7, 2015, proposed rule, 80 FR 18710, pp. 18715-18716). As we described in the proposed rule, independent crayfish experts have examined all known museum specimens identified as C. veteranus from both the Big Sandy basin and the Upper Guyandotte basin along with more recently collected specimens from each river basin. These experts determined that in both the museum specimens and recent captures, the morphological characteristics that distinguish the Big Sandy crayfish from the Guyandotte River crayfish were consistent with the geographical location ( i.e., Big Sandy basin or Upper Guyandotte basin) where the specimens were acquired. As we noted in the proposed rule, when discussing the earlier survey work (pre-taxonomic revision) we ascribed the appropriate species name based on the river basin from which specimens were collected. Therefore, we conclude that the best available data identify the appropriate taxonomic entity such that we can accurately analyze the two species' status. (29) Comment: Several commenters questioned our delineation of the historical range of the Big Sandy and Guyandotte River crayfishes and asserted that we discounted information that indicated the historical range of the two species included river systems outside of the Big Sandy and Upper Guyandotte basins, or that the two species co-occurred in the Big Sandy and Upper Guyandotte basins. Our Response: We appreciate these commenters' concerns, but do not agree that we omitted or improperly analyzed the best available data in determining the historical ranges of the Big Sandy and Guyandotte River crayfishes. As we described in the April 7, 2015, proposed rule (80 FR 18710), we relied upon Statewide crayfish survey reports, targeted survey reports, range maps and descriptions from historical crayfish surveys, genetic evidence, data from State wildlife agencies, analysis of museum collections, and the best professional judgment of crayfish experts to determine the historical range of each species. In the proposed rule, we noted several erroneous or dubious crayfish records from outside of the Big Sandy or Upper Guyandotte River basins and discussed the evidence indicating why these records do not support the historical presence of either the Big Sandy or the Guyandotte River crayfish outside of these two river basins or the cross-basin presence ( i.e., Guyandotte River crayfish in the Big Sandy basin or Big Sandy crayfish in the Upper Guyandotte basin) of either species. In addition, neither the peer reviewers, including two with extensive experience surveying for crayfish in the Appalachian region, nor the VDGIF or the WVDNR disagreed with our analysis and description of the historical ranges of the two species. We did not receive any new data during the public comment period that indicated either species historically occupied sites outside of their respective river basins. Therefore, the best available data indicate that the Big Sandy crayfish is endemic to the Big Sandy River basin and the Guyandotte River crayfish is endemic to the Upper Guyandotte River basin. (30) Comment: Several commenters questioned our conclusions on the population status of the Big Sandy crayfish or stated that the map of Big Sandy crayfish occurrence locations (figure 4 in the April 7, 2015, proposed rule; 80 FR 18710, p. 18719) was confusing and that it actually indicated that the Big Sandy crayfish population had increased from pre-2006 levels to the present time. Our Response: As we noted in the proposed rule and in responses to Comments 1 and 10, above, we relied on the best quantitative and qualitative data available at that time to determine the status of the Big Sandy crayfish, including crayfish surveys and habitat assessments, range maps, genetic evidence, analysis of museum specimens, and expert scientific opinion. While we agree that quantitative population trend data are sparse, these other lines of scientific evidence indicate that the range and population of the Big Sandy crayfish is reduced and that the existing subpopulations are fragmented from one another. We note also that this pattern is consistent with the severe range reduction observed in the closely related Guyandotte River crayfish, for which we had more data. And as we described under the discussions of Factors A and E in the proposed rule (80 FR 18710, pp. 18722-18731, and 18732-18735, respectively), and discussed below in this final rule, threats to the species continue. In the proposed rule, figure 4 shows all known survey sites and occurrence locations for the Big Sandy crayfish, broken down by time period (pre-2006 and 2006 to 2014). We acknowledge that figure 4 could be perceived as showing that the range of the Big Sandy crayfish has expanded since 2006, but we emphasize that this is only an artifact resulting from greatly increased sampling effort since 2006, especially outside of the Russell Fork drainage basin. Along with the known occurrence locations (pre-2006), the more recent surveys included streams throughout the Big Sandy crayfish's range that were identified by crayfish experts as being likely to harbor the species. Because these new sites are not known to have been surveyed previously, they provide no direct evidence that the species' range or population has increased or decreased in recent years. Loughman (2015a, entire) expanded the survey coverage in the Big Sandy basin, especially in the lower Levisa Fork and Tug Fork systems. His work generally confirmed the previously known occurrence locations, but did note four new occurrence locations in the lower Tug Fork basin (one in the Tug Fork mainstem and three in the Pigeon Creek system). These areas had not been surveyed previously and provide no direct evidence on population trends. However, as we described in the proposed rule (see text and Table 2a; 80 FR 18710, pp.18719-18721), the fact that researchers were unable to confirm the species' presence at most locations throughout its historical range (displayed as open circles on figure 4 of the proposed rule) indicates that the species' range and population is reduced and that the existing subpopulations are fragmented from each other. Additionally, at many sites where the Big Sandy crayfish does still exist, especially outside of the Russell Fork basin, the CPUE data indicate the species is found in relatively low numbers (see Population Status, below). (31) Comment: One commenter provided preliminary results of the survey efforts funded by the Service and conducted in the Upper Guyandotte and Tug Fork basins of West Virginia. (32) Comment: One commenter stated that the Big Sandy and Guyandotte River crayfishes are sensitive to elevated stream sedimentation and substrate embeddedness. Additionally, during the reopened comment period (December 15, 2015, to January 14, 2016), this commenter submitted an additional letter that supported both species receiving Federal protection and provided additional observations from the Service-funded 2015 rangewide surveys. Our Response: We appreciate these observations regarding the preferred habitat and status of the Big Sandy and Guyandotte River crayfishes and have incorporated this new information into this final rule. (33) Comment: One commenter disagreed with our determination that the Big Sandy crayfish population was in decline and described an abundance of crayfish on his property near Clintwood, Virginia (Pound River/Cranes Nest River drainage). The commenter described these crayfish as destroying his property by creating holes in the ground, thus presenting a hazard to individuals using his property. Our Response: We appreciate the commenter's concern, but note that these observations appear to describe behavior of a burrowing crayfish species. As we described in the April 7, 2015, proposed rule (80 FR 18710), the best available data indicate the Big Sandy and Guyandotte River crayfishes are wholly aquatic species that naturally inhabit the faster moving portions of streams and rivers with abundant unembedded slab boulders for cover. As “tertiary burrowers,” these species are not known to construct burrows or dig holes in upland or semi-aquatic areas. Therefore, it is unlikely that the commenter's observations are related to Big Sandy or Guyandotte River crayfish. (34) Comment: Two commenters described the effects of coal mining operations on streams adjacent to their properties. Both commenters provided anecdotal information on the degradation of water quality as a result of mine runoff and noted the disappearance of aquatic species, including unspecified crayfish species, following construction of the mines. Our Response: While we have no data or details on these specific examples with which to respond further, the observations of these commenters appear similar to some of the findings described in the scientific literature on the effects that coal mining can have on aquatic resources (see the April 7, 2015, proposed rule's Historical context, Current conditions, and Coal mining sections under the Factor A discussion in Summary of Factors Affecting the Species (80 FR 18710). (35) Comment: One commenter noted that we incorrectly implied that suitable habitat for the Big Sandy and Guyandotte River crayfishes includes “headwater streams,” which they described as small, nonperennial streams. Our Response: We appreciate the commenter's observation and agree that, as we indicated in the April 7, 2015, proposed rule, based on the best available data, small, nonperennial streams are not suitable habitat for either species of crayfish. In the proposed rule, we described the historical range and distribution of the Big Sandy crayfish to include “suitable streams throughout the basin, from the Levisa Fork/Tug Fork confluence to the headwaters.” Our use of “to the headwaters” was intended to convey that the best available data suggest that the species likely occupied suitable habitat ( i.e., fast-flowing, medium-sized streams and rivers with an abundance of slab boulders on an unembedded bottom substrate) throughout the interconnected stream network of the larger river basin, up to, but not including the small, sometimes intermittent headwater streams. (36) Comment: One commenter disagreed with our conclusion that pesticides and herbicides that may be present in the runoff from roads could degrade the habitat of the Big Sandy and Guyandotte River crayfishes. The commenter requested that we remove this discussion from the final rule. Our Response: As we noted in the April 7, 2015, proposed rule (80 FR 18710), the best available data indicate that the primary threat to the Big Sandy and Guyandotte River crayfishes is excessive erosion and sedimentation that leads to stream bottom embeddedness. However, the data also suggest that other stressors, such as water quality degradation, may also contribute to the decline of these species. While the commenter correctly noted that we have no specific studies on the effects of road runoff contaminants to the Big Sandy and Guyandotte River crayfishes, the best available data do indicate that road runoff can contain a complex mixture of contaminants, including pesticides and herbicides, metals, organic chemicals, nutrients, and deicing salts and that these contaminants, alone or in combination, can degrade receiving waters and be detrimental to aquatic organisms (see “Water Quality Degradation” under the Factor A discussion, below). We note also that pesticides and herbicides may be released to roadways as a result of accidents or spills or in concentrations or mixtures contrary to U.S. Environmental Protection Agency (USEPA) pesticide registration labeled directions. Under such circumstances, these chemicals could pose a higher risk to aquatic species, including the Big Sandy and Guyandotte River crayfishes (Buckler and Granato 1999, entire; Boxall and Maltby 1997, entire; NAS 2005, pp. 72-75, 82-86). (37) Comment: One commenter provided information on the reduction of forest cover within the range of the Guyandotte River crayfish between 1973 and 2013. The commenter reported that there was a 5.5 percent loss of forest cover within the Upper Guyandotte basin during that period and that the loss of forest cover was largely the result of coal mining. The commenter concluded that coal mining likely contributed to the decline of the Guyandotte River crayfish. Our Response: The data on land use changes documented in the report (Arneson 2015) referenced by the commenter support the conclusion that, since 1973, coal mining has significantly reduced forest cover in the Upper Guyandotte River basin. At the subwatershed scale, Pinnacle Creek experienced the greatest loss of forest cover during the period. We appreciate this new scientific information that further supports our analysis in the proposed rule of land-disturbing activities occurring within the current range of the Guyandotte River crayfish. (38) Comment: One commenter concurred with our determination that the crayfish population has declined (the commenter did not distinguish between Big Sandy crayfish and Guyandotte River crayfish), but disagreed that this decline was caused solely by construction, logging, or ORV use. The commenter advocated that plastic litter and/or the invasive plant kudzu ( Pueraria montana var. lobata ) could be causes of water contamination and should be investigated. The commenter also suggested that similar crayfish from other areas could be introduced to areas where Big Sandy or Guyandotte River crayfishes (presumably) are rare or absent. The commenter also expressed concern that Federal listing of these species could cause economic harm to the region or the Hatfield-McCoy ORV trail system. Our Response: As we described in the April 7, 2015, proposed rule (80 FR 18710), the best available data indicate the primary threat to the Big Sandy and Guyandotte River crayfishes is excessive erosion and sedimentation that leads to stream bottom embeddedness. We also described a variety of land-disturbing activities, in addition to those listed by the commenter, known to cause erosion and sedimentation within the ranges of the species. The commenter did not provide any supporting information that kudzu could degrade water quality, and we were unable to locate any such data. And, while we acknowledge plastic litter is an aesthetic concern that may pose a physical hazard to some species ( e.g., from entanglement or perhaps ingestion), we found no information indicating that plastic debris is related to the decline of the Big Sandy or Guyandotte River crayfishes, nor did the commenter provide such supporting information. While we appreciate the concern about potential management actions that may result from listing the Big Sandy and Guyandotte River crayfishes, the Act does not allow us to factor those economic concerns into our listing decision (see our response to Comment 21, above). However, we must consider economic impacts into designations of critical habitat, should critical habitat be proposed for either or both species. Summary of Changes From the Proposed Rule This final rule incorporates appropriate changes to our proposed listing based on the comments we received, as discussed above, and newly available scientific and commercial data. The main substantive change is that, based on new data on the Big Sandy crayfish's distribution, its habitat, and analysis of the species' redundancy and resiliency, we have determined that the Big Sandy crayfish does not meet the definition of an endangered species, contrary to our proposed rule published on April 7, 2015 (80 FR 18710). Specifically, the 2009 to 2015 survey data, which became available after the proposed rule was published, indicate: The species is known to occur in an additional population in the lower Tug Fork subwatershed; some occurrences in all four subwatersheds are supported by good quality habitat; and in some streams, especially in the Russell Fork, the species likely occurs throughout the entire stream rather than only in discrete sections. We conclude that the species has additional redundancy above what was known when we published the proposed rule. This increase in redundancy also contributes to the species' overall resiliency to the ongoing threats in its range, all of which indicates that the Big Sandy crayfish is not currently in danger of extinction. Therefore, this final rule lists the Big Sandy crayfish as a threatened, rather than an endangered, species. As in the proposed rule, this final rule lists the Guyandotte River crayfish as an endangered species. See the Population Status and Determination sections, below, for more detail. Other substantive changes include the following: (1) We incorporated the results of new crayfish survey efforts, including new occurrence records for the Big Sandy crayfish and the Guyandotte River crayfish, into this final rule; and (2) we analyzed several additional potential threats to both species, including instream projects, dams, climate change, unstable streams, and transportation spills. Background The information in the following sections is summarized from the proposed listing rule for the Big Sandy crayfish and the Guyandotte River crayfish (80 FR 18710; April 7, 2015) and its citations are incorporated by reference unless otherwise noted. For a complete summary of the species' information, please see the proposed listing rule. Species Information The Big Sandy crayfish ( Cambarus callainus ) and the Guyandotte River crayfish ( C. veteranus ) are freshwater, tertiary burrowing crustaceans of the Cambaridae family. Tertiary burrowing crayfish do not exhibit complex burrowing behavior; instead, they shelter in shallow excavations under loose cobbles and boulders on the stream bottom. The two species are closely related and share many basic physical characteristics and behaviors. Adult body lengths range from 75.7 to 101.6 millimeters (mm) (3.0 to 4.0 inches (in)), and the cephalothorax (main body section) is streamlined and elongate, and has two well-defined cervical spines. The elongate convergent rostrum (the beak-like shell extension located between the crayfish's eyes) lacks spines or tubercles (bumps). The gonopods (modified legs used for reproductive purposes) of Form I males (those in the breeding stage) are bent 90 degrees to the gonopod shaft (Loughman 2014, p. 1). Diagnostic characteristics that distinguish the Big Sandy crayfish from the Guyandotte River crayfish include the former's narrower, more elongate rostrum; narrower, more elongate chelea (claw); and lack of a well-pronounced lateral impression at the base of the claw's immovable finger (Thoma et al. 2014, p. 551). Thoma (2009, entire; 2010, entire) reported demographic and life-history observations for the Big Sandy crayfish in Virginia and Kentucky. He concluded that the general life cycle pattern of the species is 2 to 3 years of growth, maturation in the third year, and first mating in midsummer of the third or fourth year. Following midsummer mating, the annual cycle involves egg laying in late summer or fall, spring release of young, and late spring/early summer molting. Thoma hypothesized the likely lifespan of the Big Sandy crayfish to be 5 to 7 years, with the possibility of some individuals reaching 10 years of age. There is less information available specific to the life history of the Guyandotte River crayfish, but based on other shared characteristics with the Big Sandy crayfish, we conclude the life span and age to maturity are similar. The best available data indicate both species are opportunistic omnivores, feeding on plant and animal matter (Thoma 2009b, pp. 3, 13; Loughman 2014, pp. 20-21). The best available data indicate that the historical range of the Guyandotte River crayfish is limited to the Upper Guyandotte River basin in West Virginia and that the historical range of the Big Sandy crayfish is limited to the upper Big Sandy River basin in eastern Kentucky, southwestern Virginia, and southern West Virginia. Both river basins are in the Appalachian Plateaus physiographic province, which is characterized by rugged, mountainous terrain with steep hills and ridges dissected by a network of deeply incised valleys (Ehlke et al. 1982, pp. 4, 8; Kiesler et al. 1983, p. 8). The dominant land cover in the two basins is forest, with the natural vegetation community being characterized as mixed mesophytic (moderately moist) forest and Appalachian oak forest (McNab and Avers 1996, section 221E). Suitable habitat for both species is generally described as clean, third order or larger (width of 4 to 20 meters (m) (13 to 66 feet (ft))), fast-flowing, permanent streams and rivers with an abundance of large, unembedded slab boulders on a sand, cobble, or bedrock stream bottom (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 21-23; Taylor and Shuster 2004, p. 124; Thoma 2009b, p. 7; Thoma 2010, pp. 3-4, 6; Loughman 2013, p. 1; Loughman 2014, pp. 22-23; Loughman 2015a, pp. 1, 29, 41-43; Loughman 2015b, pp. 1, 9-12, 28-30, 35-36). Under natural ( i.e., undegraded) conditions, this habitat was common in streams throughout the entire upper Big Sandy and Upper Guyandotte River basins, and historically, both species likely occurred throughout their respective ranges where this habitat existed. However, by the late 1800s, commercial logging and coal mining, coupled with rapid human population growth and increased development in the narrow valley riparian zones, began to severely degrade the aquatic habitat throughout both river basins. We conclude, based on the best available data, this widespread habitat degradation, most visible as stream bottom embeddedness, likely led to each species' decline and their eventual extirpation from many streams within much of their respective historical ranges. Both species appear to be intolerant of excessive sedimentation and embeddedness of the stream bottom substrate. This statement is based on observed habitat characteristics from sites that either formerly supported the Big Sandy or Guyandotte River crayfish or from sites within either of the species' historical ranges that were predicted to be suitable for the species, but where neither of the species (and in some cases no crayfish from any species) were observed (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 22-23; Thoma 2009b, p. 7; Thoma 2010, pp. 3-4; Loughman 2013, p. 6; Loughman 2015a, pp. 29, 41-43; Loughman 2015b, pp. 28-30, 35-36). See Summary of Factors Affecting the Species, below, for additional information. Summary of Biological Status and Threats Here, we summarize the two species' distribution, abundance, and threats information that was previously provided in the proposed rule (80 FR 18710; April 7, 2015) and has been updated as appropriate from new information we received since the proposed rule's publication. Unless otherwise noted, citations for the summarized information are from the proposed rule and incorporated by reference. See Summary of Changes from the Proposed Rule, above, for what has been updated. Big Sandy Crayfish Historically (prior to 2006), the Big Sandy crayfish was known from 11 stream systems in the 4 larger subwatersheds in the upper Big Sandy River watershed: Tug Fork, Levisa Fork, Upper Levisa Fork, and Russell Fork (see figure 1, below). However, pre-2006 survey data for the species is sparse, with only 25 surveyed sites in 13 stream systems. Most of these records were from the Russell Fork subwatershed (with multiple records dating back to 1937), and single records were available from the Levisa Fork, Upper Levisa Fork, and Tug Fork subwatersheds (all confirmed between 1999 and 2002). The Big Sandy crayfish is currently known from a total of 21 stream systems in the same four subwatersheds. However, we emphasize this apparent increase in occupied stream systems is an artifact of increased sampling effort, and not necessarily an increase in the species' redundancy. From 2006 to 2015, a series of surveys were conducted that effectively covered the species' historical range, including the first comprehensive rangewide survey for the species, which was funded by the Service in 2015 (see Loughman 2015a, entire). During this period, a total of 276 sites (including all historical locations and additional “semi-random” locations ( e.g., appropriately-sized streams for the species)) were surveyed throughout the Tug Fork, Levisa Fork, Upper Levisa Fork, and Russell Fork watersheds. The Big Sandy crayfish was confirmed at 86 of the surveyed sites (31 percent) and in 21 of the 55 surveyed stream systems (38 percent). A notable result of the 2015 rangewide survey was confirmation of the species' presence in the lower Tug Fork basin, where a single occurrence was found in the Tug Fork mainstem and three occurrences were noted in the Pigeon Creek system. While the species is still found in all four subwatersheds, current data (2006 to 2015) indicate notable differences in the species' distribution in each subwatershed. In the Russell Fork subwatershed, the Big Sandy crayfish was found in 92 percent of the stream systems surveyed (52 percent of sites). In the other subwatersheds, the species was less well distributed. In the Levisa Fork and Upper Levisa Fork watersheds, only 13 percent of the surveyed stream systems were occupied (19 and 24 percent of sites, respectively) and in the Tug Fork subwatershed, 35 percent of surveyed stream systems were occupied (23 percent of sites) (see figure 1 and tables 1a through 1d, below). ER07AP16.000 Guyandotte River Crayfish In the April 7, 2015, proposed rule, we indicated that the Guyandotte River crayfish was historically known from nine individual streams in the Upper Guyandotte River basin (80 FR 18710, pp. 18717-18720); we have since revised this to be six individual streams (or stream systems where their smaller tributaries were also surveyed). Based on the best available data at the time of the proposed rule, we considered the species' distribution based on its occupancy status in each individually named stream. On closer analysis of the watershed, we determined that some of these individually named streams were actually smaller tributaries connected into a primary tributary stream ( i.e., the streams that connect directly to the Upper Guyandotte River mainstem). Therefore, for the purpose of understanding the species' overall distribution, we concluded that primary streams and their tributaries should be considered together as a “stream system.” Previous surveys (see Jezerinac et al. 1995) identified a species occurrence in “Little Indian Creek.” However, based on the site description provided in the report and our analysis of the relevant U.S. Geological Survey topographic maps, we have determined that this creek is not unique, but a misnamed section of Indian Creek. Also, for the purpose of assessing the status of the Guyandotte River crayfish, we determined that Brier Creek, a tributary to Indian Creek, is more appropriately considered part of the larger Indian Creek system. Finally, the two museum specimens collected from Little Huff Creek in 1971, and previously identified as Cambarus veteranus, were re-examined in 2014, and determined to be C. theepiensis (National Museum of Natural History http://collections.nmnh.si.edu/search/iz/ ; accessed December 21, 2015). Therefore, Little Huff Creek is no longer a known occurrence location for the Guyandotte River crayfish. Regardless of this revised information, multiple survey efforts dating back to 1900 show a significant reduction in the number of occupied streams. Rangewide surveys in 1988 and 1989 confirmed the species in two stream systems, the historical Huff Creek system and a new stream record, Pinnacle Creek. In 2002, a study failed to confirm the species at any historical site (Channell 2004, pp. 17-18), but a more comprehensive survey in 2009 did find several individuals in Pinnacle Creek (Loughman 2013, p. 6) (see figure 2, below). The Guyandotte River crayfish is currently known from two disjunct stream systems in the Upper Guyandotte River basin. In 2015, the Service funded additional rangewide surveys for the species (see Loughman 2015b). A total of 71 likely sites (in 21 stream systems) were surveyed throughout the Upper Guyandotte River basin, including all historical locations and additional “semi-random” locations). The species was confirmed at 10 individual sites (in two stream systems). In Pinnacle Creek, the last known occupied stream, the species was found at 4 of 9 sites surveyed. And in Clear Fork, which is a new stream record for the species, the Guyandotte River crayfish was found at 6 of 9 sites (see figure 2 and table 2, below). ER07AP16.001 Population Status There are no historical or current total population estimates for the Big Sandy crayfish or Guyandotte River crayfish. However, the best available data provide information on the distribution and abundance of each species. Historical survey information, historical stream connectedness, current distribution data, genetic evidence, and expert opinion support that these species once occupied most, perhaps all, third order or larger stream systems throughout their respective ranges. The evidence further supports the conclusion that, under natural ( i.e., undegraded) conditions, these species likely occur (or occurred) along the stream continuum wherever suitable slab boulder habitat exists (Appalachian Technical Services, Inc. (ATS) 2010, entire; ATS 2012a, entire; ATS 2012b, entire; Loughman 2015a, p. 23; Loughman 2015b, pp. 9-10). Historically, this slab boulder habitat was common throughout most of both species' ranges, however it may be naturally patchy in some streams in the lower Levisa Fork and Tug Fork subwatersheds in the Big Sandy River basin and in some of the lower tributary streams in the Upper Guyandotte River basin (Loughman 2015a, pp. 5-29; Loughman 2015b, pp. 9-25). Currently, suitable slab boulder habitat is limited by anthropogenic degradation (discussed below under Factor A ). Survey data from 1900 (prior to the widespread industrialization of the region) and from current occupied streams that maintain high-quality habitat indicate that unrestricted sampling at a “healthy” site should produce 20 to 25 individual Big Sandy or Guyandotte River crayfish specimens (Faxon 1914, pp. 389-390; Thoma 2009a, p. 10; ATS 2010, entire; ATS 2012a, entire; ATS 2012b, entire; Virginia Department of Transportation (VDOT) 2014b, entire; VDOT 2015, entire). Between 2006 and 2015, where possible, survey data were normalized to a common metric, “catch per unit effort” (CPUE). In general, sites described as “robust” or “healthy” maintained CPUE values of 5 or more crayfish per hour (Thoma 2009, pp. 17-18; Thoma 2010, p. 6; Loughman 2014, p. 15). In 2015, 39 sites in the Big Sandy River basin (representing 25 percent of those surveyed) were positive for the Big Sandy crayfish. The actual CPUE values for these occupied sites ranged from 1 to 5 Big Sandy crayfish per hour (mean 2.1 crayfish per hour). However, only four sites had “robust” CPUE values of 5, and approximately half (n=19) of occupied sites had a CPUE value of 1, indicating low Big Sandy crayfish abundance. The basinwide average CPUE value (including occupied and unoccupied sites) was 0.5 Big Sandy crayfish per hour. Where data exist to make a temporal comparison, between 2007 and 2015, seven stream systems showed a decline in CPUE values and four stream systems did not appear to change (see table 3, below). In 2015, 10 sites in the Upper Guyandotte River basin (representing 14 percent of those surveyed) were positive for the Guyandotte River crayfish. The actual CPUE values for these occupied sites ranged from 2 to 15 Guyandotte River crayfish per hour (mean 5.0 crayfish per hour). In Pinnacle Creek, none of the occupied sites had a CPUE value indicative of a “robust” Guyandotte River crayfish population; the highest CPUE value in Pinnacle Creek was 4 crayfish per hour (mean 2.8 crayfish per hour, n=4). In Clear Fork, four of the sites had CPUE values indicative of “robust” Guyandotte River crayfish populations; the highest CPUE value was 15 crayfish per hour (mean 6.5 crayfish per hour, n=6). The basinwide average CPUE (including occupied and unoccupied sites) was 0.7 Guyandotte River crayfish per hour. The temporal data for Pinnacle Creek do not indicate a significant change in CPUE values between 2009 and 2015 (see table 3). ER07AP16.002 As with the distribution data discussed above, the 2015 survey data indicate differences in CPUE values and overall habitat quality (as measured by the standard QHEI) between the four major subwatersheds (see tables 4a, 4b, 4c, and 4d, below). In the Russell Fork basin, the average CPUE value (including occupied and unoccupied sites) was 1.1 Big Sandy crayfish per hour and the average QHEI score was 74. In the Upper Levisa Fork basin, the average CPUE value was 0.7 and the average QHEI score was 73. The Tug Fork and Levisa Fork basins appeared to be less “healthy,” with average CPUE values of 0.4 and 0.2, respectively, and average QHEI scores of 65 and 61, respectively. ER07AP16.003 Additionally, Big Sandy crayfish relocation surveys conducted in the Russell Fork basin between 2009 and 2015 indicate that, in the relatively high quality streams of this subwatershed, the species appears to occur along significant stream distances, not necessarily just discrete locations. During these relocation surveys, the species was also collected in high numbers at many sites. Based on these relocation survey data and the distribution data that indicated 92 percent of the streams in the Russell Fork basin are occupied (see table 1c, above), we conclude that the population of Big Sandy crayfish in the Russell Fork subwatershed is likely more resilient than indicated by the data available at the time we published the April 7, 2015, proposed rule (80 FR 18710). Summary The best available data indicate that the distribution and abundance of both the Big Sandy crayfish and the Guyandotte River crayfish are reduced from their historical levels. The Big Sandy crayfish currently occupies approximately 38 percent of the presumed historically suitable stream systems within its historical range. Within these stream systems, the most recent survey data indicate that the species occupies 31 percent of the surveyed sites. However, as described above, this percentage varies markedly among the four major subwatersheds, with the species being poorly represented in the Levisa Fork and Upper Levisa Fork subwatersheds. The Guyandotte River crayfish currently occupies only two streams, or approximately 8 percent of the presumed historically suitable stream systems within its historical range. Within these two streams, the species is currently found at 12 percent of the individual sites surveyed. The CPUE data also indicate that, at currently occupied sites, both species are generally found in low numbers, with few sites indicating “robust” populations of Big Sandy crayfish or Guyandotte River crayfish. It is possible that additional occurrences of either species could be found, but not probable given the extent of the current survey efforts (see figures 1 and 2, above) combined with habitat quality information (either natural or human mediated conditions) discussed below. In addition to occupying fewer streams and sites within streams, the species' stream occurrences are fragmented and isolated from each other (see figures 3 and 4, below). ER07AP16.004 Summary of Factors Affecting the Species Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Within the historical range of both the Big Sandy and the Guyandotte River crayfish, the aquatic habitat has been severely degraded by past and ongoing human activities (Hunt et al. 1937, p. 7; Eller 1982, pp. 162, 184-186; Jezerinac et al. 1995, p. 171; Channell 2004, pp. 16-23; Thoma 2009b, p. 7; Thoma 2010, pp. 3-4; Loughman 2013, p. 6; Loughman and Welsh 2013, p. 23; Loughman 2014, pp. 10-11). Visual evidence of habitat degradation, such as excessive bottom sedimentation, discolored sediments, or stream channelization and dredging, is often obvious, while other water quality issues such as changes in pH, low dissolved oxygen levels, high dissolved solids, high conductivity, high metals concentrations, and changes in other chemical parameters are less visibly obvious. Within the range of each species, water quality monitoring reports, most recently from the Kentucky Division of Water (KDOW) (2013, entire), the U.S. Environmental Protection Agency (USEPA) (2004, entire), the Virginia Department of Environmental Quality (VADEQ 2012, entire), and the West Virginia Department of Environmental Protection (WVDEP 2014, entire), have linked these widespread and often interrelated direct and indirect stressors to coal mining and abandoned mine land (AML), commercial timber harvesting, residential and commercial development, roads, and sewage discharges. The best available data indicate that the presence and abundance of both the Big Sandy crayfish and Guyandotte River crayfish are correlated with habitat quality, specifically streams with slab boulders and low levels of sedimentation and substrate embeddedness (Jezerinac et al. 1995, entire; Channell 2004, pp. 22-24; Thoma 2009b, p. 7; Thoma 2010, pp. 3, 6; Loughman 2014, pp. 22-23; Loughman 2015a, pp. 29-30; Loughman 2015b, pp. 25-30). In 2015, rangewide surveys for both species measured habitat quality using the QHEI that includes measures of substrate quality and embeddedness (Loughman 2015a, entire; Loughman 2015b, entire). Based on QHEI scores, 31 percent of sites occupied by the Big Sandy crayfish (n=39) and 80 percent of sites occupied by the Guyandotte River crayfish (n=10) had habitats classified as “Excellent.” Habitats at all remaining occupied sites were classified as “Good.” No Big Sandy crayfish or Guyandotte River crayfish were collected at sites classified as “Fair,” “Poor,” or “Very Poor.” Coal Mining The past and ongoing effects of coal mining in the Appalachian Basin are well documented, and both underground and surface mines are reported to degrade water quality and stream habitats (Matter and Ney 1981, pp. 67-70; Williams et al. 1996, pp. 41-46; Sams and Beer 2000, entire; Demchak et al. 2004, entire; Hartman et al. 2005, pp. 94-100; Pond et al. 2008, entire; Lindberg et al. 2011, entire; Merriam et al. 2011, entire; Pond 2011, entire; USEPA 2011b, entire; Bernhardt et al. 2012, entire; Hopkins et al. 2013, entire; Wang et al. 2013, entire; Palmer and Hondula 2014, entire). The common physical changes to local waterways associated with coal mining include increased erosion and sedimentation, changes in flow, and in many cases the complete burial of headwater streams (USEPA 1976, pp. 3-11; Matter and Ney 1981, entire; Hartman et al. 2005, pp. 91-92; Pond et al. 2008, pp. 717-718; USEPA 2011b, pp. 7-9). These mining-related effects, which can contribute to stream bottom embeddedness, are commonly noted in the streams and rivers within the ranges of the Big Sandy and the Guyandotte River crayfishes (USEPA 2004; WVDEP 2012; KDOW 2013; VADEQ 2014) and are of particular concern for these species, which, as tertiary burrowers, rely on unembedded slab boulders for shelter. Underground mining accounts for most of the coal excavated in the region, but since the 1970s, surface mining (including “mountaintop removal mining” or MTR) has become more prevalent. Mountaintop removal mining is differentiated from other mining techniques by the shear amount of overburden ( i.e., rock and other geologic material) that is removed to access the coal seams below and the use of “valley fills” to dispose of the overburden. This practice has occurred and continues to occur within the two species' ranges and results in the destruction of springs and headwater streams and can lead to water quality degradation in downstream reaches (USEPA 2011, pp. 7-10). The best available data indicate that much of the residual erosion and sedimentation effects from surface coal mining are likely to continue indefinitely. The geology of the mountain ridges in the Appalachian Plateaus physiographic province makes them resistant to erosion. However surface coal mining, and especially MTR mining, breaks down this inherently erosion-resistant bedrock into unconsolidated “spoil” material that is much more vulnerable to erosional forces, especially flowing water. Through the removal of this stable bedrock material in order to access coal seams, and subsequent disposal of the unconsolidated mine spoil in adjacent valley fills, surface coal mining causes significant geomorphic disturbances with long-term consequences for the region's streams (Kite 2009, pp. 4, 6-9). The legacy effects of surface coal mining persist long after active mining ceases. While post-Surface Mining Control and Reclamation Act of 1977 (SMCRA) mine reclamation techniques help reduce erosion following mine closure, especially as compared to pre-SMCRA conditions, comparisons of recently mined and reclaimed watersheds to unmined watersheds indicate streams below reclaimed MTR sites can be unstable (Fox 2009, pp. 1286-1287; Jaeger 2015, pp. 30-32). For example, research indicates that after surface coal mining reclamation is complete, the altered geomorphology and hydrology in the watershed causes streams to adjust to these new conditions (Fox 2009, pp. 1286-1287). This adjustment process includes streambank erosion that contributes sediments to streams downstream of the mined watersheds. Other indicators of unstable streams downstream of mined sites include increased maximum stream depth, changes in stream profile, more exposed bedrock, and increased frequency of fine sediment loads (Jaeger 2015, pp. 30-32). The sedimentation effects from stream instability differ from site to site, and there is uncertainty as to the time required for streams to reach a new equilibrium after surface mining ends. Additionally, numerous failures ( i.e., major erosion events) of reclaimed slopes have been observed following heavy rainfall events, and the long-term durability of reclaimed mine land in the absence of active reclamation maintenance has not been tested (Kite 2009, pp. 6-7). The historical effects of pre-SMCRA mining continue to cause stream instability and sedimentation throughout the Appalachian coalfields (Kite 2009, p. 9; Witt 2015, entire). In 2015, the Virginia Department of Mines, Minerals, and Energy reported a series of debris slides and flows originating from mine spoils associated with abandoned, pre-1981, coal mines. One of these debris flows in the Upper Levisa basin inundated an area of approximately 8,100 square meters (m 2 ) (0.8 hectares (ha)) (2 acres (ac)) and was “actively shedding mud and fine debris” into a headwater tributary, which then caused sedimentation in an amount sufficient to obstruct flow in a downstream tributary of Elkins Branch (Witt 2015, entire). Of particular concern to the Guyandotte River crayfish are several active surface coal mines in the Pinnacle Creek watershed that may pose an immediate threat to the continued existence of that subpopulation, one of only two known to exist. These mines are located either on Pinnacle Creek ( e.g., encroaching to within 0.5 kilometers (km) (0.31 miles (mi)) of the creek) and directly upstream ( e.g., within 7.0 km (4.4 mi)) of the Guyandotte River crayfish occurrence locations or on tributaries that drain into Pinnacle Creek upstream of the occurrence locations (WVDEP 2014a; WVDEP 2014b; WVDEP 2014c; WVDEP 2014d). Some of these mines have reported violations related to mandatory erosion and sediment control measures ( e.g., 3 to 37 violations) within the last 3 years (WVDEP 2014a; WVDEP 2014b; WVDEP 2014d). Historically, coal mining has been ubiquitous within the ranges of both the Big Sandy and Guyandotte River crayfishes. While coal extraction from the southern Appalachian region has declined from the historical highs of the 20th century, and is unlikely to ever return to those levels (Milici and Dennen 2009, pp. 9-10; McIlmoil et al. 2013, pp. 1-8, 49-57), significant mining still occurs within the ranges of both species. The U.S. Department of Energy (2013, table 2) reports that in 2012, there were 192 active coal mines (119 underground mines and 73 surface mines) in the counties that constitute the core ranges of the Big Sandy and Guyandotte River crayfishes. Because of the scale of historical coal mining in the region and the magnitude of the geomorphological changes in mined areas, we conclude that the erosion and sedimentation effects of coal mining will continue indefinitely. Forestry The dominant land cover within the ranges of the Big Sandy and Guyandotte River crayfishes is forest. Commercial timber harvesting occurs throughout the region and, especially in areas directly adjacent to, or on the steep slopes above, streams and rivers, has the potential to degrade aquatic habitats, primarily by increasing erosion and sedimentation (Arthur et al. 1998, entire; Stone and Wallace 1998, entire; Stringer and Hilpp 2001, entire; Swank et al. 2001, entire; Hood et al. 2002, entire). Based on the best available data (Cooper et al. 2011a, p. 27; Cooper et al. 2011b, pp. 26-27; Piva and Cook 2011, p. 46), we estimate that within the ranges of the Big Sandy and Guyandotte River crayfishes, approximately 12,600 ha (30,745 ac) of forest are harvested annually, representing approximately 1.9 percent of the total forest cover within this area. Erosion rates from logged sites in the mountainous terrain of the southern Appalachians are significantly higher than from undisturbed forest sites (Hood et al. 2002, entire). Applying the erosion rates from Hood et al. (2002, entire) to the estimated harvested area above indicates that timber harvesting within the ranges of the Big Sandy and Guyandotte River crayfishes could produce 67,158 to 149,436 tonnes (73,173 to 162,641 tons) of sediment annually, as compared to an estimated 5,922 tonnes (6,456 tons) of sediment from undisturbed forest of the same area. Hood et al. (2002, p. 54) provide the caveat that the model they used does not account for additional erosion associated with forest disturbance, such as gully erosion, landslides, soil creep, stream channel erosion, or episodic erosion from single storms, and therefore, their estimates of actual sediment transport are low. Therefore, our analysis of potential erosion within the ranges of the two species likely underestimates actual erosion rates. Forestry “best management practices” (BMPs) are designed to reduce the amount of erosion at logging sites, however the rates of BMP adherence and effectiveness at logging sites within the ranges of the Big Sandy and Guyandotte River crayfishes vary. The best available data indicate that BMP implementation rates in the region range from about 80 to 90 percent; however, we could not locate current data on the actual efficacy of BMPs in the steep terrain that characterizes Big Sandy and Upper Guyandotte River basins. Additionally, the implementation of forestry BMPs is not required for certain timber cutting operations. For example, in Kentucky, tree clearing incidental to preparing coal mining sites is specifically exempted, and in West Virginia, tree-clearing activities incidental to ground-disturbing construction activities, including those related to oil and gas development, are exempted (Kentucky Division of Forestry undated fact sheet, downloaded February 5, 2015; West Virginia Division of Forestry 2014, pp. 3-4). While Hood et al. (2002, entire) found that erosion rates improved quickly in subsequent years following logging, Swank, et al. (2001, pp. 174-176) studied the long-term effects of timber harvesting at a site in the Blue Ridge physiographic province in North Carolina, and determined that 15 years postharvest, the annual sediment yield was still 50 percent above predisturbance levels. While we do not have specific information on timber harvesting in areas directly adjacent to, or upslope from, streams historically occupied, currently occupied, or likely to be occupied by the Big Sandy or Guyandotte River crayfishes, we do know based on past practices that timber harvesting occurs year to year on a rotational basis throughout the Big Sandy and Upper Guyandotte watersheds. Excess sedimentation from timber harvested sites may take decades to flush from area streams. Based on the rotational nature of timber harvesting, we conclude that commercial timber harvesting in the region is likely relatively constant, ongoing, and likely to continue. We also conclude that timber harvesting, particularly when harvesters do not use sufficient erosion control measures, is likely to continually degrade the aquatic habitat required by the Big Sandy and Guyandotte River crayfishes. Gas and Oil Development The Appalachian Plateaus physiographic province is underlain by numerous geological formations that contain natural gas and, to a lesser extent, oil. The Marcellus shale formation underlies the entire range of the Guyandotte River crayfish and a high proportion of the range of the Big Sandy crayfish, specifically McDowell County, West Virginia, and part of Buchanan County, Virginia (U.S. Department of Energy (USDOE) 2011, p. 5), and various formations that make up the Devonian Big Sandy shale gas play ( e.g., a favorable geographic area that has been targeted for exploration) underlie the entire range of the Big Sandy crayfish and some of the range of the Guyandotte River crayfish (USDOE 2011, p. 9). In addition to these shale gas formations, natural gas also occurs in conventional formations and in coal seams (referred to as “coal bed methane” or CBM) in each of the counties making up the ranges of the two species. The intensity of resource extraction from these geological formations has varied over time depending on market conditions and available technology, but since the mid- to late 20th century, many thousands of gas and oil wells have been installed within the ranges of the Big Sandy and Guyandotte River crayfishes (Kentucky Geological Survey (KGS) 2015; Virginia Department of Mines, Minerals and Energy (VDMME) 2015; West Virginia Department of Environmental Protection (WVDEP) 2015). Numerous studies have reported that natural gas development has the potential to degrade aquatic habitats (Boelter et al. 1992, pp. 1192-1195; Adams et al. 2011, pp. 8-10, 18; Drohan and Brittingham, 2012, entire; McBroom et al. 2012, pp. 953-956; Olmstead et al. 2013, pp. 4966-4967; Papoulias and Velasco 2013, entire; Vidic et al. 2013, entire; Warner et al. 2013, entire; USEPA 2014, entire; Vegosh et al. 2014, pp. 8339-8342; Harkness et al. 2015, entire). The construction of well pads and related infrastructure ( e.g., gas pipelines, compressor stations, wastewater pipelines and impoundments, and access roads) can increase erosion and sedimentation, and the release of drilling fluids, other industrial chemicals, or formation brines can contaminate local streams. Within the ranges of the Big Sandy and Guyandotte River crayfishes, the topography is rugged and the dominant land cover is forest; therefore, the construction of new gas wells and related infrastructure usually involves timber cutting and significant earth moving to create level well pads, access roads, and pipeline rights-of-way, all of which increases the potential for erosion. For example, Drohan and Brittingham (2012, entire) analyzed the runoff potential for shale gas development sites in the Allegheny Plateau region of Pennsylvania, and found that 50 to 70 percent of existing or permitted pad sites had medium to very high runoff potential and were at an elevated risk of soil erosion. McBroom et al. (2012, entire) studied soil erosion from two well pads constructed in a forested area in the Gulf Coastal Plain of east Texas and determined a significant increase in erosion from the well pads as compared to undisturbed forested sites. Based on this information, which represents the lower end of the potential risk given the less mountainous topography where these studies took place, it is reasonable to conclude that erosion from well sites within the ranges of the Big Sandy and Guyandotte River crayfishes is significantly higher than from undisturbed sites, especially when those sites do not use sufficient erosion control measures and are directly adjacent to, or upslope from, streams occupied or likely to be occupied by either species. We anticipate the rate of oil and gas development within the ranges of the Big Sandy and Guyandotte River crayfishes to increase based on projections from a report by IHS Global, Inc. (2013, p. 4), produced for the American Petroleum Institute, which indicate that the “recent surge in oil and gas transportation and storage infrastructure investment is not a short lived phenomenon. Rather, we find that a sustained period of high levels of oil and gas infrastructure investment will continue through the end of the decade.” While this projection is generalized across all oil and gas infrastructure within the United States, an increase of new infrastructure within the ranges of the Big Sandy and Guyandotte River crayfishes is also anticipated because of the yet untapped Marcellus and Devonian Big Sandy shale resources discussed above. On- and Off-Road Transportation Unpaved Roads —Unpaved forest roads ( e.g., haul roads, access roads, and skid trails constructed by the extractive industries or others) can degrade the aquatic habitat required by the Big Sandy and Guyandotte River crayfishes. In this region, these roads are often located on the steep hillsides and are recognized as a major source of sediment loading to streams and rivers (Greir et al. 1976, pp. 1-8; Stringer and Taylor 1998, entire; Clinton and Vose 2003, entire; Christopher and Visser 2007, pp. 22-24; MacDonald and Coe 2008, entire; Morris et al. 2014, entire; Wade et al. 2012, pp. 408-409; Wang et al. 2013, entire). In addition to erosion from unpaved road surfaces, unpaved road stream crossings can contribute significant sediment loading to local waters (Wang et al. 2013, entire). These unpaved roads and stream crossings, often associated with mining, forestry, and oil and gas activities, are ubiquitous throughout the range of the Big Sandy and Guyandotte River crayfishes. We anticipate the number of unpaved roads throughout the crayfishes' ranges to remain the same or expand as new oil and gas facilities are built, new areas are logged, and new off-road vehicle (ORV) trails are constructed. Off-road Vehicles —Recreational ORV use contributes to the erosion and sedimentation problems associated with unpaved roads and stream crossings and has become increasingly popular in the region (see http://www.riderplanet-usa.com, last accessed March 1, 2016). Recreational ORV use, which includes the use of unimproved stream crossings, stream channel riding, and “mudding” (the intentional and repeated use of wet or low-lying trail sections that often results in the formation of deep “mud holes”), may cause increased sediment loading to streams and possibly kill benthic organisms directly by crushing them (Chin et al. 2004, entire; Ayala et al. 2005, entire; Christopher and Visser 2007, p. 24; YouTube.com 2008; YouTube.com 2010; YouTube.com 2011; Switalski and Jones 2012, pp. 14-15; YouTube.com 2013). Nearly all of the land within the ranges of the Big Sandy and Guyandotte River crayfishes is privately owned, and ORV use on private land is largely unregulated. We found no comprehensive information on the extent of off-road ridership or the effects to local streams. However, the Hatfield-McCoy Trail system, which was created in 2000 to promote tourism and economic development in southern West Virginia, may provide some insight into the scale of ORV recreation within the ranges of the Big Sandy and Guyandotte River crayfishes (Pardue et al. 2014, p. 1). As of 2014, the Hatfield-McCoy Trail system had eight individual trail networks totaling more than 1,127 km (700 mi) of cleared trails, with the stated long-term goal being approximately 3,219 km (2,000 mi) of accessible trails (Pardue et al. 2014, pp. 4-5), and in 2013, 35,900 trail permits were sold (Hatfield-McCoy presentation 2013, p. 8). Two of the designated Hatfield-McCoy trail networks, Pinnacle Creek and Rockhouse, are located in the Upper Guyandotte basin, and one, Buffalo Mountain, is in the Tug Fork basin. The Pinnacle Creek Trail System, opened in 2004, is located entirely within the Pinnacle Creek watershed and may pose a significant threat to the continued existence of the Guyandotte River crayfish population in this stream. Approximately 13 km (8.0 mi) of the Pinnacle Creek trail is located in the riparian zone adjacent to the stream reach that currently harbors the Guyandotte River crayfish. At several locations along this section of trail, riders are known to operate their vehicles in the streambed or in adjacent “mud holes” (You Tube 2008; You Tube 2010; You Tube 2011; You Tube 2013; Loughman, pers. comm., October 24, 2014). It is reasonable to conclude that these activities increase erosion and sedimentation in Pinnacle Creek and degrade the habitat of the Guyandotte River crayfish. In addition, the instream operation of ORVs in Pinnacle Creek has the potential to crush or injure individual crayfish directly. Road Construction —The construction of new roads also has the potential to further degrade the aquatic habitat in the region, primarily by increasing erosion and sedimentation, especially when the new roads do not use sufficient erosion control measures and are directly adjacent to, or upslope from, streams occupied or likely to be occupied by the Big Sandy crayfish or Guyandotte River crayfish. In addition, roadways are also known to introduce contaminants to local streams (see “Water Quality Degradation,” below). Two new, multi-lane highway projects totaling 330 km (205 mi), the King Coal Highway and the Coalfields Expressway, are in various stages of development within the Big Sandy and Upper Guyandotte River watersheds (VDOT 2015; West Virginia Department of Transportation (WVDOT) 2015a; WVDOT 2015b) (see figure 5, below). In West Virginia, the King Coal Highway right-of-way runs along the McDowell and Wyoming County line, the dividing line between the Tug Fork and Upper Guyandotte watersheds, and continues into Mingo County (which is largely in the Tug Fork watershed). This highway project will potentially affect the current occupied habitat of both crayfish species, but is of particular concern for the Guyandotte River crayfish because of a section that will parallel and cross Pinnacle Creek, one of two known locations for the species. In West Virginia, the Coalfields Expressway right-of-way crosses Wyoming and McDowell Counties roughly perpendicular to the King Coal Highway and continues into Buchanan, Dickenson, and Wise Counties, Virginia (see figure 5, below). This project runs through the Upper Guyandotte, Tug Fork, Levisa Fork, and Russell Fork watersheds and has the potential to affect the aquatic habitats in each basin. Of particular concern are sections of the Coalfields Expressway planned through perhaps the most robust Big Sandy crayfish populations in Dickenson County, Virginia, especially when those populations are directly adjacent to, or downslope from, the construction sites and if those construction sites do not use sufficient erosion control measures. Both highways will also have a yet undetermined number of feeder roads connecting completed segments to other existing roadways. Some of these feeder roads will further bisect the two species' ranges and will likely be a source of additional sedimentation, especially if these roads do not use sufficient erosion control measures and are directly adjacent to, or upslope from, streams occupied or likely to be occupied by the Big Sandy crayfish or Guyandotte River crayfish. Because the highways are being built in phases when funding is available, the original planned completion schedule of approximately 2018 has been delayed, and we anticipate construction will continue until approximately 2030 (see http://www.wvkingcoal.com/; http://www.virginiadot.org/projects/bristol/route_121.asp; http://www.transportation.wv.gov/highways/highways-projects/coalfieldsexpressway/, last accessed March 3, 2016). ER07AP16.005 Instream Construction —Since 2009, the VDGIF has requested companies or other agencies undertaking construction activities ( e.g., pipeline stream crossings, bridge replacements, bank stabilization work) in or adjacent to known or suspected Big Sandy crayfish streams to conduct crayfish surveys prior to any construction activities (Brian Watson, VDGIF 2016, pers. comm.; Va. Code sec. 29.1-563 to 570). If the species is discovered within the construction area, agencies are required to capture and relocate Big Sandy crayfish to suitable habitats outside of the affected area, typically upstream of the disturbance. While these efforts likely afford individual crayfish protection from the direct effects of the construction activities, it is unknown if relocated crayfish survive and successfully establish in their new locations. Data indicate that between 2009 and 2015, 12 projects were conducted in the Russell Fork and upper Levisa Fork subwatersheds of Virginia that involved the potential relocation of Big Sandy crayfish (Appalachian Energy 2009; ATS 2009, entire; ATS 2010, entire; D.R. Allen and Associates 2010, entire; Vanasse Hangen Brustlin, Inc. 2011, entire; ATS 2012a, entire; ATS 2012b, entire; VDOT 2014a, entire; VDOT 2014b, entire; VDOT 2014c, entire; VDOT 2014d, entire; VDOT 2015, entire). While these data indicate instream projects occur within the range of the Big Sandy crayfish, we do not have any information on the total number of instream projects within the Kentucky or West Virginia areas of the species' range, nor do we have this information for the Guyandotte River crayfish, because the two crayfish are not State-listed species in Kentucky or West Virginia (see further discussion below under Factor D ). However, existing pipelines, bridges, and culverts have scheduled maintenance and replacement schedules, in addition to ad hoc work when those structures are damaged. While we do not have information to project the scope and magnitude of new instream projects within the two species' ranges, the maintenance and repair activities of existing infrastructure are expected to continue indefinitely. Summary of On- and Off-Road Transportation —We conclude that erosion and sedimentation from unpaved roads and trails, ORV use, road construction projects, and potential injury resulting from instream construction projects within the ranges of the Big Sandy and Guyandotte River crayfishes are ongoing threats to each species. Residential/Commercial Development and Associated Stream Modifications Residential and Commercial Development —Because of the rugged topography within the ranges of the Big Sandy and the Guyandotte River crayfishes, most residential and commercial development and the supporting transportation infrastructure is confined to the narrow valley floodplains (Ehlke et al. 1982, p. 14; Kiesler et al. 1983, p. 14). The close proximity of this development to the region's streams and rivers has historically resulted in the loss of riparian habitat and the continued direct discharge of sediments, chemical pollutants, sewage, and other refuse into the aquatic systems (WVDEP 2012, entire; KDOW 2013, entire; VADEQ 2014, entire), which degrades habitat quality and complexity (Merriam et al. 2011, p. 415). The best available data indicate that the human population in these areas will continue to decrease over the next several decades (University of Louisville 2011, entire; University of Virginia 2012, entire; West Virginia University 2012, entire). However, while the human populations may decline, the human population centers are likely to remain in the riparian valleys. Stream Channelization and Dredging —Flooding is a recurring problem for people living in the southern Appalachians, and many individuals and mountain communities have resorted to unpermitted stream dredging or bulldozing to deepen channels and/or remove obstructions in an attempt to alleviate damage from future floods (West Virginia Conservation Agency (WVCA), pp. 4, 36-38, 225-229). In fact, as recently as 2009, Loughman (pers. comm., October 24, 2014) observed heavy equipment being operated in stream channels in the Upper Guyandotte basin. Unfortunately, these unpermitted efforts are rarely effective at reducing major flood damage and often cause other problems such as streambank erosion, lateral stream migration, channel downcutting, and sedimentation (WVCA, pp. 225-229). Stream dredging or bulldozing also causes direct damage to the aquatic habitat by removing benthic structure, such as slab boulders, and likely kills benthic organisms by crushing or burial. Because these dredging and bulldozing activities are unpermitted, we have little data on exactly how widespread or how often they occur within the ranges of the Big Sandy or Guyandotte River crayfishes. However, during their 2009 survey work for Cambarus veteranus in the Upper Guyandotte and Tug Fork basins, Loughman and Welsh (2013, p. 23) noted that 54 percent of the sites they surveyed (these were sites predicted to be suitable to the species) appeared to have been dredged, evidenced by monotypic gravel or cobble bottoms and a conspicuous absence of large slab boulders. These sites were thus rendered unsuitable for occupation by C. veteranus and confirmed so by the absence of the species. Stream Channel Instability —Under the Factor A discussion in the April 7, 2015, proposed rule (80 FR 18710, pp. 18722-18731), we discussed multiple activities that increase erosion and sedimentation within the ranges of the Big Sandy and Guyandotte River crayfishes. Under the Stream channelization and dredging category, we stated that channel modification for flood control activities can cause streambank erosion, lateral stream migration, channel downcutting, and sedimentation (80 FR 18710, p. 18730). However, such “stream instability” concerns can also be caused by stream modifications associated with residential and commercial development activities and by the large-scale topographic alterations resulting from surface coal mining. As noted above, within the ranges of the Big Sandy and Guyandotte River crayfishes, most development occurs adjacent to streams and rivers within the narrow valleys and can alter the local hydrology and lead to increased erosion and sedimentation from disturbed land surfaces (80 FR 18710, pp. 18723-18724, 18728; April 7, 2015). Because human infrastructure and streams are in close proximity to each other, streams are often realigned and/or channelized to increase the amount of usable land area or to protect existing structures through the aforementioned flood control. These modifications, such as straightening, dredging, and armoring stream channels, increases stream flow velocities, or stream energy, and often leads to increased bed and bank erosion either in the modified stream reach or in downstream reaches (Keller 1978, pp. 119, 124-125; Brooker 1985, p. 1; Edwards et al. 2015, p. 67). Because these types of historical channel modifications are common in both watersheds, the total continual sediment contribution from unstable channels is likely considerable (Loughman and Welsh 2013, p. 23; WVCA undated, pp. 227-231). For example, a proposed stream restoration project on the Cranes Nest River (Russell Fork basin) estimated that approximately 3,530 ft (1.1 km) of historical stream channelization and resultant bank erosion at a small homestead annually contributes 140 tons of excess sediment to the Cranes Nest River (U.S. Department of Transportation 2015, entire). In addition, documentation from the 2015 Big Sandy crayfish surveys indicate that Prater Creek in the Lower Levisa Fork of Kentucky show incised and eroding streambanks, and at least 23 surveyed sites in the Levisa Fork, as well as in Pigeon Creek of the Tug Fork, were reported to have visible bank erosion (Loughman 2015a, entire). Summary of Residential/Commercial Development and Associated Stream Modification —We conclude that stream channel instability caused by historical stream channel modifications associated with human development is a source of sediments in the streams and rivers within the range of the Big Sandy and Guyandotte River crayfishes. Because of the presumed permanence of human-occupied areas, we conclude that these effects will continue indefinitely. Water Quality Degradation While [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-07744. Public record. Not legal advice.