Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog, Endangered Species Status for Carolina Madtom, and Designations of Critical Habitat

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0092; FF09E21000 FXES11110900000 212]

RIN 1018-BC28

Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Neuse River Waterdog, Endangered Species Status for Carolina Madtom, and Designations of Critical Habitat

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), list two North Carolina species, the Carolina madtom (

Noturus furiosus

) as endangered, and the Neuse River waterdog (

Necturus lewisi

) as threatened, under the Endangered Species Act of 1973 (Act), as amended. We also issue a rule under section 4(d) of the Act for the Neuse River waterdog, to provide for the conservation of this species. In addition, we designate critical habitat for both species under the Act. For the Carolina madtom, approximately 257 river miles (mi) (414 river kilometers (km)) fall within 7 units of critical habitat in Durham, Edgecombe, Franklin, Granville, Halifax, Johnston, Jones, Nash, Orange, Vance, Warren, and Wilson Counties, North Carolina. For the Neuse River waterdog, approximately 779 river mi (1,254 river km) fall within 18 units of critical habitat in Craven, Durham, Edgecombe, Franklin, Granville, Greene, Halifax, Johnston, Jones, Lenoir, Nash, Orange, Person, Pitt, Wake, Warren, Wayne, and Wilson Counties, North Carolina. This rule extends the Act's protections to these species and their designated critical habitats.

DATES:

This rule is effective July 9, 2021.

ADDRESSES:

This final rule is available on the internet at

http://www.regulations.gov.

Comments and materials we received, as well as some supporting documentation we used in preparing this rule, are available for public inspection at

http://www.regulations.gov.

All of the comments, materials, and documentation that we considered in this rulemaking are available at

http://www.regulations.gov

at Docket No. FWS-R4-ES-2018-0092.

For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at

http://www.regulations.gov

at Docket No. FWS-R4-ES-2018-0092, and at the Raleigh Ecological Services Field Office (

https://www.fws.gov/raleigh;

street address provided above). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Fish and Wildlife Service website and Field Office identified above, and may also be included in the preamble and at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, 551F Pylon Drive, Raleigh, NC 27606; telephone 919-816-6408. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the

Federal Register

and make a determination on our proposal within one year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Whenever any species is listed as a threatened species, the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of such species. In addition, the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1) of the Act for endangered species. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule.

What this document does.

This final rule: (1) Lists the Carolina madtom as endangered, (2) designates critical habitat for the Carolina madtom, (3) lists the Neuse River waterdog as threatened, (4) issues a rule under section 4(d) of the Act for the Neuse River waterdog, and (5) designates critical habitat for the Neuse River waterdog.

The basis for our action.

Under the Act, we may determine that a species is an endangered or threatened species because of 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 habitat degradation (Factor A), resulting from the cumulative impacts of land use change and associated watershed-level effects on water quality, water quantity, habitat connectivity, and instream habitat suitability, poses the largest risk to the future viability of both species. This stressor is primarily related to habitat changes: The buildup of fine sediments, the loss of flowing water, instream habitat fragmentation, and impairment of water quality, and it is exacerbated by the effects of climate change (Factor E). The Carolina madtom is also impacted by predation from flathead catfish (Factor C). There are no existing regulatory mechanisms that ameliorate or reduce these threats such that the species do not warrant listing (Factor D).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

Economic analysis.

In accordance with section 4(b)(2) of the Act, we prepared an economic analysis of the impacts of designating critical habitat for the Carolina madtom and the Neuse River waterdog. We published the announcement of, and solicited public comments on, the draft economic analyses (84 FR 23644; May 22, 2019). We received no comments on the draft economic analyses and adopted the draft economic analyses as final.

Peer review and public comments.

During the proposed rule stage, we sought the expert opinions of 11 appropriate specialists regarding the species status assessment report. We received responses from five specialists, which informed our determinations. Information we received from peer review is incorporated into this final rule. We also considered all comments and information we received from the public during two comment periods.

Previous Federal Actions

Please refer to the proposed listing and critical habitat rule (84 FR 23644; May 22, 2019) for the Carolina madtom and Neuse River waterdog, and the document reopening the May 22, 2019, proposed rule's public comment period (85 FR 45839; July 30, 2020), for detailed descriptions of previous Federal actions concerning these species.

Supporting Documents

Species status assessment (SSA) teams prepared SSA reports for the Carolina madtom and Neuse River waterdog. The SSA teams were composed of Service biologists, in consultation with other species experts. The SSA reports each represent a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA reports and other materials relating to this rule can be found on the Service's Southeast Region website at

https://www.fws.gov/southeast/, at

http://www.regulations.gov

under Docket No. FWS-R4-ES-2018-0092, and at the Raleigh Ecological Services Field Office (see

FOR FURTHER INFORMATION CONTACT

).

Summary of Changes From the Proposed Rule

This final rule incorporates several changes to our proposed rule (84 FR 23644; May 22, 2019) based on the comments we received. These changes are summarized in the document that reopened the proposed rule's public comment (85 FR 45839; July 30, 2020), as well as below under Summary of Comments and Recommendations. Minor, nonsubstantive changes and corrections are made throughout this rule in response to comments. Based on these comments, we also incorporate as appropriate new information into our SSA reports, including updated survey information. However, the information we received during the public comment period on the proposed rule did not change our determination that the Carolina madtom is an endangered species and the Neuse River waterdog is a threatened species.

We received substantive comments on the proposed rule issued under section 4(d) of the Act (“4(d) rule”) for the Neuse River waterdog and the critical habitat designations for both species. We have made changes to this rule as a result of the public comments we received. We modified the language in the Neuse River waterdog 4(d) rule for each exception for incidental take. In summary, we modified the exception for species restoration efforts by State wildlife agencies to include monitoring, which is necessary to determine the success of captive propagation and stocking efforts; for channel restoration projects to add language that would require surveys for and relocation of Neuse River waterdogs observed prior to commencement of restoration action; for bank stabilization projects to add a requirement that appropriate “native” vegetation, including woody and herbaceous species appropriate for the region and habitat, be used for stabilization; and for forestry-related actions to reflect alternative language provided by the North Carolina Forest Service (NCFS) (see

(28) Comment

under Summary of Comments and Recommendations, below). In terms of critical habitat, for the Carolina madtom, we updated ownership information for the Eno River critical habitat (Unit 4), we modified the occupancy determination from unoccupied to occupied for critical habitat Unit 6 (Contentnea Creek) based on new data for the species (see

(8) Comment

under Summary of Comments and Recommendations, below). For the Neuse River waterdog, we added two occupied critical habitat units (Unit 3—Bens Creek and Unit 18—Tuckahoe Swamp) and modified to add or remove areas to/from five units (Unit 1—Upper Tar River, Unit 4—Fishing Creek Subbasin, Unit 6—Middle Tar River Subbasin, Unit 10—Middle Creek, and Unit 17—Trent River) of the critical habitat designation, for a total of 779 miles, an increase of 41 miles from the proposed designation.

As indicated in the document that reopened the proposed rule's public comment (85 FR 45839; July 30, 2020), we have also changed the way in which the provisions of the 4(d) rule for the Neuse River waterdog will appear at 50 CFR 17.43(f). Specifically, we no longer set forth a blanket statement applying all prohibitions and provisions of 50 CFR 17.31 and 17.32 to the Neuse River waterdog. Instead, we set forth specific prohibitions and exceptions to those prohibitions in the 4(d) rule, but the substance of the prohibitions and the exceptions to those prohibitions, as included in the May 22, 2019, proposed rule (84 FR 23644), has not changed.

Summary of Comments and Recommendations

In the proposed rule published on May 22, 2019 (84 FR 23644), and in the document published on July 30, 2020 (85 FR 45839) that reopened the comment period on the May 22, 2019, proposed rule, we requested that all interested parties submit written comments on the proposals. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposals. Newspaper notices inviting general public comment were published in the Raleigh News and Observer on June 3, 2019, and on August 9, 2020. We did not receive any requests for a public hearing. All substantive information provided during the comment periods has either been incorporated directly into the final determinations or is addressed below. For topics we received comments on during both comment periods (

e.g.,

the forestry exception language in the 4(d) rule), we identify whether the comments were received as part of the initial comment period (May 22-July 22, 2019) or the reopened comment period (July 30-August 31, 2020).

Peer Reviewer Comments

In accordance with our joint policy on peer review published in the

Federal Register

on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of the SSA reports. We sent the Carolina madtom SSA report to six independent peer reviewers and the Neuse River waterdog SSA to five independent peer reviewers; all peer reviewers had expertise that included familiarity with Carolina madtom or Neuse River waterdog and their habitats, biological needs, and threats. We received responses from four of the peer reviewers for the Carolina madtom and one of the peer reviewers for the Neuse River waterdog.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA reports. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final SSA reports. Peer reviewer comments are addressed in the following summary

and were incorporated into the SSA reports as appropriate.

Carolina Madtom

(1) Comment:

One peer reviewer mentioned that predation by flathead catfish is likely a dominant threat to the Carolina madtom but appears minimally considered as a habitat factor in the SSA report. The commenter suggested that in addition to physical habitat attributes, biotic factors may in many cases (including this case) be critically important. This important habitat influence could be emphasized more in the SSA report.

Our Response:

Data on the distribution, abundance, or predation pressure on madtoms for flathead catfish in either the Neuse or Tar River basins are not available; therefore, we could not explicitly include flathead catfish as a metric. Section 4.4 of the SSA report describes the significant threat that flathead catfish pose to the Carolina madtom, as does the overall viability summary for the species.

(2) Comment:

One peer reviewer suggested that we make a strong statement concerning the endemism of the Tar-Neuse ecosystem and what a unique crucible of evolution it has been, as manifested in several endemic species, including the Carolina madtom, Tar River spinymussel (

Parvaspina steinstansana

), pinewoods shiner (

Lythrurus matutinus

), Neuse River waterdog, and others. The uniqueness of the overall ecosystem cannot be overemphasized, and the mutual benefits derived from the listing of any of the endemic organisms has appeal.

Our Response:

We note the endemism of the Carolina madtom to the Tar and Neuse river systems in chapter 3 of the SSA report. While listing and critical habitat designation under the Act only apply to the species under consideration, we acknowledge that protections derived from implementing the Act are beneficial to the overall habitat and other organisms that co-occur with the Carolina madtom. However, benefits that listing a species under the Act may have on the overall ecosystem is not a factor for consideration when determining whether a species warrants listing under the Act.

(3) Comment:

One peer reviewer commented that the SSA report suggests that instream habitat, water flow, and invasive fish are the main factors influencing madtom populations, and it is unclear how any of these factors are attributable to Confined Animal Feeding Operations (CAFOs). There is no direct linkage provided in the SSA report.

Our Response:

Multiple sections in the SSA report state that the main habitat elements that influence Carolina madtom condition are water quality (CAFOs are a part of this, as are National Pollutant Discharge Elimination System (NPDES) discharges, as they contribute to identified impaired streams), water quantity, connectivity (potentially affected by CAFOs located within floodplains), instream habitat (also affected by CAFOs when runoff overwhelms instream flows), and predation by flathead catfish. Section 4.2 of the SSA report details the effects of CAFOs on the habitats within the madtom's range (Service 2021a, pp. 35-36).

(4) Comment:

One peer reviewer expressed disappointment that the Service did not reference materials provided via email in July 2016, stating that the SSA report has a slanted viewpoint, has cherry-picked negative impacts associated with forest management, and only focuses on those in the analysis.

Our Response:

The material provided to us in July 2016 has been cited directly in the revised forestry section (section 4.3) of the SSA report (Service 2021a, pp. 36-40). We note that the very first sentence in this section of the SSA report states that a forested landscape provides ideal conditions for aquatic ecosystems. In the SSA report and in this final rule, we also note that silvicultural activities, when performed according to strict forest practices guidelines (FPGs) or best management practices (BMPs), can retain adequate conditions for aquatic ecosystems. However, we also note that, when FPGs/BMPs are not implemented or inadequate implementation occurs, these forestry activities can also “cause measurable impacts” (NCASI 2015, p. 1) and contribute to the myriad of stressors facing aquatic systems in the Southeast (Service 2021a, p. 37). In addition, we note that one major, albeit temporary, BMP failure, a harvest that is non-compliant with BMPs or FPGs, or failure to maintain a BMP, can cause enough sedimentation to smother nests and/or cause enough stress to have irreversible impacts to Carolina madtom populations.

(5) Comment:

One peer reviewer recommended that the Service solicit a representative of the agriculture community to participate in the peer review of the SSA report. The peer reviewer noted that both the Neuse and Tar-Pamlico River basins have a substantial amount of agricultural operations and it may be beneficial for all parties to understand how that type of land use may play a role in supporting future species conservation needs.

Our Response:

We sought peer review from an agriculture expert in the North Carolina Department of Agriculture for the Neuse River waterdog SSA report (which has very similar analysis of agricultural operations as the Carolina madtom SSA report). However, we did not receive a response to our request.

Neuse River Waterdog

(6) Comment:

One peer reviewer had questions about the occupancy metrics and whether detection probabilities were incorporated into the estimates of occupancy, as well as the time periods that the survey efforts represented in order to better understand the underlying analyses presented in the SSA report.

Our Response:

We added detection probability information into the SSA report (Service 2021b, p. 19) and note that for the original analysis, site occupancy indicates a minimum, naïve occupancy (

i.e.,

detection probabilities were not incorporated into the initial estimates). We are currently working with North Carolina State University to perform an in-depth occupancy analysis for Neuse River waterdog; however, this analysis has not been completed, and the resulting information is not available for incorporation. We also note that the time periods and replicated methodologies for the survey efforts are also described in section 3.3.1 of the SSA report (Service 2021b, p. 19).

State Agency Comments

We received comments from three State agencies, the North Carolina Wildlife Resources Commission (NCWRC), the North Carolina Forest Service (NCFS), and the Virginia Department of Forestry (VDOF). Because we received several comments from both NCFS and VDOF and from the public regarding forestry considerations, we have integrated NCFS/VDOF comments and responses under

Public Comments,

below.

Carolina Madtom

(7) Comment:

The NCWRC provided a thorough review of the SSA report and included many comments updating data and interpretations. The partner review suggested that we revise the document to include the Trent River Subbasin within the greater Neuse River basin, based on the hydrologic unit categorization, to avoid confusion.

Our Response:

Nearly all data revisions and interpretations were incorporated into the revised SSA report. In section 3.1 of the SSA report,

we describe why we separated the Trent River Subbasin: “Because of salt water influence, the habitats in the Trent River system are isolated from the Neuse River and its tributaries; therefore, we consider the Trent River system as a separate basin (

i.e.,

population), even though it is technically part of the larger Neuse River Basin” (Service 2021a, p. 9).

(8) Comment:

The NCWRC provided a new record during the public comment period in 2019, of a Carolina madtom collected from Contentnea Creek near NC 42 in July 2018.

Our Response:

While we included this reach in proposed critical habitat, the May 22, 2019, proposed rule (84 FR 23644) considered Contentnea Creek to be unoccupied, with the last known record from 2007. With this 2018 record, we consider the Contentnea Creek critical habitat unit to be occupied. Therefore, we have updated the designated critical habitat to reflect that Unit 6—Contentnea Creek is occupied for the Carolina madtom. We revised the critical habitat designation to address this comment in our July 30, 2020, document reopening the May 22, 2019, proposed rule's public comment period (85 FR 45839).

Neuse River Waterdog

(9) Comment:

The NCWRC provided a thorough review of the SSA report and included many comments updating data and interpretations. The partner review indicated concern about how current occupancy was summarized (

i.e.,

that the species currently occupies 73 percent of its historical range), indicating that the recent survey efforts suggest a 50 percent decline in occupied sites from the surveys done in the early 1980s.

Our Response:

Data revisions and interpretations were incorporated into the revised SSA report. We note that current occupancy versus the occupancy of historical range at the species level is summarized by watershed (or hydrologic unit) occupancy within MUs rather than by individual site occupancy. This difference likely accounts for the apparent discrepancy noted by the commenter. The SSA report includes details about changes at the site level, as well as the overall watershed, to provide as complete a picture as possible of changes from historical times to the present day (Service 2021b, p. v).

(10) Comment:

The NCWRC provided several new records for Neuse River waterdog during the public comment period in 2019, including records in Middle Creek (Johnston County), Tuckahoe Swamp (Jones County), Tar River (Granville County), and Fishing Creek (Nash County).

Our Response:

We included these new records and updated five critical habitat units (Unit 1—Upper Tar River, Unit 4—Fishing Creek Subbasin, Unit 6—Middle Tar River Subbasin, Unit 10—Middle Creek, and Unit 17—Trent River). We revised Unit 1 to add 3.7 miles (6 km) of the Upper Tar River based on a 2018 observation provided by NCWRC of Neuse River waterdog. We revised Unit 4 to add 20 miles (32.3 km) of Fishing Creek based on a 2019 observation provided by NCWRC of Neuse River waterdog. We revised Unit 6 to add 11 miles (17.8 km) of the upper reach of the Tar River based on a 2019 observation by a permitted private consultant of Neuse River waterdog. We revised Unit 10 to add 23.2 miles (37.4 km) of Middle Creek based on two 2018 observations provided by NCWRC of Neuse River waterdog. These revisions were part of our July 30, 2020, document reopening the May 22, 2019, proposed rule's public comment period (85 FR 45839).

Public Comments

During the initial comment period, we received 83 public comments on the proposed rule, and during the reopened comment period, we received 16 public comments. A majority of the comments supported the listing determinations and critical habitat designations, none opposed the designations, and some included suggestions on how we could refine or improve the 4(d) rule for the Neuse River waterdog and the critical habitat designations for both species. All substantive information provided to us during the comment periods has been incorporated directly into this final rule or is addressed below. For topics for which we received comments during both comment periods (

e.g.,

the forestry exception language in the 4(d) rule), we identify whether the comments were received during the initial comment period (May 22-July 22, 2019) or the reopened comment period (July 30-August 31, 2020).

(11) Comment:

One commenter indicated that the Service should consider forestry BMPs as part of the overall conservation benefit for the species, and account for these beneficial actions in any threat analysis.

Our Response:

Forested watersheds contribute to the current condition of each species and have been factored in as a positive factor (

i.e.,

benefit) under the “Connectivity” habitat element as described in chapter 3 of each species' SSA report. We also note that forestry activities were not carried forward as a primary threat for our future condition analyses because the future condition analyses focused on the main threats (urbanization and climate change) that are predicted to affect the species' future condition.

(12) Comment:

One commenter stated that the proposed rule does not present evidence that forest management is contributing elevated levels of sediment to streams occupied by the Neuse River waterdog and Carolina madtom.

Our Response:

Sediment is one of the most frequently cited water quality concerns associated with forestry operations and is one of the top causes of river and stream impairment in the United States (EPA 2017, p. 3). Sedimentation is one of the primary stressors to aquatic fauna, including the Neuse River waterdog and Carolina madtom (Service 2021ab, chapter 4). Forestry practices can alter the natural sediment balance and lead to increased rates of sediment input, resulting in increased concentrations of sediment in the water body and increased deposition of sediment on the stream bottom. The forest industry recognizes that harvest and management practices cause sedimentation, which is why they have BMPs, or practices that are used to minimize water pollution from sedimentation. BMP implementation rates are generally high, and in the Neuse and Tar-Pamlico River basins, overall BMP implementation rates are approximately 88 to 90 percent (Coats 2017, p. 38). While we do not know the exact location of all forestry operations in the Neuse and Tar-Pamlico River basins (see maps from North Carolina Forest Service (NCFS) 2018, p. 43), lack of BMP implementation was approximately 10 to 12 percent for sites assessed in those watersheds from 2012-2016; identified risks to water quality were most often attributed to improper BMPs for Streamside Management Zones (SMZs) and stream crossings (Coats 2017, pp. 8-9), which likely contributed sedimentation to habitats in the systems that the waterdog and madtom occupy.

(13) Comment:

To provide additional information about compliance, one commenter described the process for when a “significant risk to water quality” is observed during BMP implementation inspections. They indicated that the presence of a significant risk triggers further investigation by State agency inspectors that leads to collaborative efforts among State agencies, the forest landowner, logger, and/or contractor to perform corrective measures to remedy the issue. After a reasonable period of time, a follow-up site evaluation is made to assess compliance with the

recommended measures. Willful noncompliance with State agency recommendations typically results in a referral to the appropriate regulatory agency for enforcement action.

Our Response:

We acknowledge the protocols in place to remedy water quality violations. We recommend that the Service be included in the agencies notified if water quality violations occur to habitats occupied by the Neuse River waterdog or Carolina madtom.

(14) Comment:

During the initial comment period, one commenter noted that within the range of the Neuse River waterdog and Carolina madtom, North Carolina BMPs require a minimum SMZ width of 50 feet on each side of the stream, and referenced chapter 4 (SMZs and Riparian Buffers) of the NCFS's BMP manual.

Our Response:

Our review of the NCFS's BMP Manual indicates that 50-foot buffers are part of the Tar-Pamlico and Neuse riparian buffer rules; however, recent correspondence with the NCFS clarifies that forest harvesting is allowed in all zones of the 50-foot buffer (see chapter 02 of title 15A of the North Carolina Administrative Code (NCAC) at section 02B .0612 (15A NCAC 02B .0612); NCFS 2020, p.1).

(15) Comment:

One commenter noted that the Federal Highway Administration (FHWA) has not consulted with the Service regarding the Carolina madtom or Neuse River waterdog, or analyzed impacts to the species before pursuing construction of the project in Wake/Johnston Counties.

Our Response:

While this comment is outside the scope of this rulemaking, the FHWA/North Carolina Department of Transportation (NCDOT) re-initiated section 7 consultation/conference with a revised biological assessment for the Complete 540 project dated July 2019. The Service issued a revised biological opinion (BO) for the Complete 540 project on October 15, 2019. This BO primarily concerned the dwarf wedgemussel (

Alasmidonta heterodon

), yellow lance (

Elliptio lanceolata

), Atlantic pigtoe (

Fusconaia masoni

), and proposed critical habitat for the Atlantic pigtoe. However, we also concurred that the project may affect, but is not likely to adversely affect, the Neuse River waterdog. This conclusion was based primarily on the fact that repeated surveys never found the species anywhere near the action area, and the closest record was 5 to 6 miles downstream in Swift Creek. FHWA/NCDOT determined the project would have no effect on the Carolina madtom since the species is not currently considered present in or near the action area. Therefore, there was no consultation/conference for the Carolina madtom.

(16) Comment:

When the Service proposes critical habitat for these species, it should take into consideration the economic benefits of protecting habitat for the species, including ecosystem services, the protection of clean water, the reduced cost of water treatment for drinking water supplies, and public health benefits.

Our Response:

As noted in the draft economic analysis (DEA), the primary intended benefit of critical habitat is to support the conservation of endangered and threatened species, such as the Carolina madtom and Neuse River waterdog. In order to quantify and monetize direct benefits of the designation, information would be needed to determine both the incremental change in the probability of madtom or waterdog conservation expected to result from the critical habitat designation and the public's willingness to pay for such beneficial changes. The conclusion was that additional project modifications to avoid adverse modification of critical habitat for either the Carolina madtom or Neuse River waterdog are not anticipated. Analysis of ecosystem services, such as clean water, or broad benefits of ecosystem services to human populations that may result from critical habitat designations are generally outside the scope of economic considerations for the designation of Carolina madtom and Neuse River waterdog critical habitat, primarily because the uncertainties associated with monetary quantification of these benefits are large.

(17) Comment:

One commenter suggested that the Service consider the protection of these species to be an environmental justice issue. The commenter provided the U.S. Environmental Protection Agency (EPA) definitions of “environmental justice” (

i.e.,

the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies), “fair treatment” (

i.e.,

no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental, and commercial operations or policies), and “meaningful involvement” (

i.e.,

people have an opportunity to participate in decisions about activities that may affect their environment and/or health; the public's contribution can influence the regulatory agency's decision; their concerns will be considered in the decision making process; and the decision makers seek out and facilitate the involvement of those potentially affected). The commenter further stated that protecting these species and their habitats is an environmental justice imperative, and would have positive benefits for public health and well-being in the Coastal Plain of North Carolina and beyond.

Our Response:

For listing actions, the Act requires that we make determinations “solely” on the basis of the best available scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)). Still, we recognize the indirect benefits, including the aesthetic, recreational, and overall health benefits of listing species and designating critical habitat, that this rule may provide for all human communities surrounding and including the habitats that both species occupy.

Neuse River Waterdog

(18) Comment:

One commenter stated that the Neuse River waterdog should be listed as endangered because of the threat of climate change.

Our Response:

As described below in

Neuse River Waterdog: Status Throughout All of Its Range

and in

Neuse River Waterdog: Status Throughout a Significant Portion of Its Range,

we considered whether the Neuse River waterdog is presently in danger of extinction throughout all or a significant portion of its range and determined that endangered status is not appropriate for the species' entire range or for a portion of its range. The current conditions as assessed in the Neuse River waterdog SSA report show that the species exists in nine MUs over three different populations (river systems) over a majority (65 percent) of the species' historical range. The Neuse River waterdog still exhibits representation across both physiographic regions, and extant populations remain across the range. In short, while the primary threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all or a significant portion of its range.

(19) Comment:

Several commenters indicated that they support the listing of the Neuse River waterdog (and Carolina madtom), as well as the designation of critical habitat to protect and recover both species. However, while they supported the listing and designation of critical habitat, they opposed the 4(d) rule, stating that it would severely limit the effectiveness of other conservation

measures and reduce the likelihood of survival and recovery. One commenter mentioned that the proposed exceptions in the 4(d) rule concerning silviculture practices are an inappropriate and unlawful use of a 4(d) rule and that the Service's proposal to provide for the conservation needs of these sensitive aquatic species via “BMPs” and Sustainable Forestry Initiative/Forest Stewardship Council/American Tree Farm System certification standards is not a serious one. The commenters indicated that the proposed 4(d) rule fails to set forth a protective regulation that provides for the specific conservation needs of the Carolina madtom and Neuse River waterdog.

Our Response:

Section 4(d) of the Act states that the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of species listed as threatened. Section 4(d) of the Act provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. As described below under II. Final Rule Issued Under Section 4(d) of the Act for the Neuse River Waterdog, the provisions of our 4(d) rule will promote conservation of the Neuse River waterdog by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Neuse River waterdog. The prohibitions and exceptions to the prohibitions identified in the 4(d) rule are considered necessary and advisable for the conservation of the Neuse River waterdog.

Development and refinement of forest management BMPs has resulted in substantial improvements to forestry's impacts on water quality in recent decades, and the reduced risks of these practices to water quality justify the Service's inclusion of a 4(d) exception for forestry for the Neuse River waterdog. North Carolina Forestry BMPs, properly implemented, protect water quality and help conserve aquatic species, including the Neuse River waterdog.

The Service has determined that the Carolina madtom meets the definition of an endangered species, and the Act does not allow issuance of a 4(d) rule for a species listed as endangered.

(20) Comment:

Several comments we received during the reopened comment period (July 30-August 31, 2020), including from the NCFS, indicated the Service did not explain or justify the necessity for a two-zoned SMZ, SMZs wider than those already recommended by State forestry BMPs within the geographic range of Neuse River waterdog, or the application of SMZs related to Virginia and North Carolina trout waters to waters where the Neuse River waterdog occurs. Some comments further suggested that references to trout rules or BMPs beyond those already required within the range of Neuse River waterdog would be confusing and challenging to implement. Several such comments further questioned any additional conservation benefits that SMZs wider than those currently recommended in State BMPs would provide.

Our Response:

It was the Service's intent to provide additional discussion and explanation for the exception under 4(d) resulting from incidental take from certain forestry practices, based on comments received on the May 22, 2019, proposed rule (84 FR 23644). During that comment period, we received several comments stating that the proposed 4(d) rule language, referring to “highest standard BMPs” was too vague or confusing. By referring to BMPs related to trout waters (specifically SMZs), it was the Service's intent to use a frame of reference that would be familiar to forest landowners and managers for species sensitive to sedimentation and thermal effects on stream waters to better explain how the exception would apply, but not to apply those particular parameters. Comments that mentioned trout rules seemed to be referring to the preamble language, rather than the regulation text. The proposed regulation text outlined BMPs, but did not include references to trout. However, we understand that the references to trout waters in the preamble has caused confusion for multiple reasons, in part because the Neuse River waterdog occurs in a region different from trout, and it was not clearly stated how the Neuse River waterdog is similarly sensitive to sedimentation (a primary factor responsible for the derivation of BMPs specific to trout waters). There was also confusion as a result of multiple other regulations and recommended practices that already exist in the Neuse and Tar watersheds where the species occurs (

i.e.,

riparian buffer rules and North Carolina's FPGs) and for which the NCFS maintains a BMP manual with recommended practices for meeting compliance with FPGs. The concerns of the commenters have been carefully considered and addressed by revising the 4(d) rule to specify the habitat management goals necessary to provide for the breeding, feeding, and sheltering needs of the Neuse River waterdog, rather than prescribing a particular management practice with which to achieve necessary habitat protection (

e.g.,

we removed the two-zoned SMZs of variable width; see II. Final Rule Issued Under Section 4(d) of the Act for the Neuse River Waterdog, below, for revisions).

(21) Comment:

A couple of commenters stated that SMZs are part of a suite of BMPs and that they should not be proposed alone, indicating that we should include mention of all BMPs in the exception for incidental take.

Our Response:

We agree with this comment and note that the Service proposed the exception under section 4(d) for incidental take from certain forestry practices to include multiple State-approved BMPs, highlighting considerations for SMZs because of their importance to stream habitat, along with considerations for stream crossings, skid trails, and access roads. However, during both comment periods, commenters have demonstrated particular concern over that portion of the proposed exception on forestry SMZs. As noted in the previous response, we have revised this exception for incidental take under section 4(d) by removing the requirement of a two-zoned SMZ; the revision now includes exceptions for take associated with practices following forestry BMPs so that it will not add confusion and will be more practical to implement along with existing FPGs and State-recommended BMPs, while also promoting conservation of Neuse River waterdog and its habitat.

(22) Comment:

We received many comments stating that State-approved BMPs are sufficient for the protection of the Neuse River waterdog because BMP implementation rates are high. They indicate that because BMP implementation rates are high, we should provide an exception for incidental take for all State-approved BMPs.

Our Response:

We agree that when used and properly implemented, BMPs can offer a substantial improvement to water quality compared to forestry operations where BMPs are not properly implemented; it is for this reason that the Service has included an exception for incidental take for forest management that adheres to BMPs in the 4(d) rule for the Neuse River waterdog. The commenters provided information that indicates rates of forestry BMP implementation across the Southeast, and the nation, are generally high. We agree but assert that forest management is not risk-free for wildlife or water quality. Some studies focused on the effects of silvicultural activities on aquatic salamanders have found that

logging-related sedimentation can reduce larval and adult abundance (Lowe et al. 2004, p. 167; Moseley et al. 2008, pp. 303-305), or have synergistic impacts on populations when combined with other stressors (

e.g.,

predatory fishes; Lowe et al. 2004, pp. 167-170), and that wide (~100 ft (30 m)) riparian buffers are needed to offer similar protection as unharvested sites, while narrow (~30 ft (9 m)) buffers had similar effects on salamanders as no buffer at all (Peterman & Semlitch 2009, pp. 10-13). The most recent survey of BMP implementation in North Carolina showed that implementation rates—while averaging 84 percent Statewide and averaging 88-90 percent in the Neuse and Tar-Pamlico River basins—did vary among regions within the State, and they varied with respect to the type of BMP being evaluated (Coats 2017, pp. 8-41). The NCFS reported that BMPs were not applied or properly implemented in 4,584 opportunities in their assessments, and that 30 percent of these cases posed a risk to water quality (Coats 2017, p. 8). The NCFS also reported that 74 percent of all identified risks to water quality were associated with the lack of application or improper implementation of BMPs related to stream crossings (average implementation rate = 79 percent; range 72-83 percent), SMZs (average implementation rate = 86 percent; range 72-91 percent), and post-harvest rehabilitation of a site (average implementation rate = 71 percent; range 53-83 percent) (Coats 2017, pp. 8, 9, 18-19, 26-34). Such incidents of improperly implemented or unused BMPs and their associated risks to water quality and habitat are important to acknowledge in the context of rare, imperiled species, where any one particular localized event may result in further imperilment of a population and set back recovery of the species. Accordingly, we cannot assume that BMPs will unequivocally be implemented.

Development and refinement of BMPs has resulted in substantial improvements to forestry's impacts on water quality in recent decades and has created a culture of water stewardship in the forest landowner community, making this stakeholder group an important ally in the conservation of imperiled species. The reduced risks to water quality justify the Service's inclusion of an exception for incidental take associated with forestry BMPs in the 4(d) rule for the Neuse River waterdog, and the remaining presence of risk supports the need to specify conditions required for the exception to apply. Incidental take associated with forest management activities in the range of Neuse River waterdog that do not meet the conditions of the exception in the 4(d) rule may still occur via consultation with the Service under section 7, or a conservation agreement under section 10, of the Act.

Because BMPs in North Carolina are voluntary, existing BMPs will be sufficient for the protection of the Neuse River waterdog if, and only if, they are widely implemented in watersheds where the species occurs and are implemented appropriately such that all forest management operations maintain compliance with North Carolina's FPGs and achieve management goals related to conserving and maintaining suitable habitat for the Neuse River waterdog (which closely mirror the FPG requirements). North Carolina Forestry BMPs, properly implemented, protect water quality and help conserve aquatic species, including the Neuse River waterdog. Forest landowners who properly implement those BMPs are helping conserve the waterdog, and this 4(d) rule is an incentive for all landowners to properly implement BMPs to avoid any take implications. Further, those forest landowners who are third-party-certified to a credible forest management standard are providing audited certainty that BMP implementation is taking place across the landscape; thus, the exception for incidental take in the 4(d) rule will apply to their forestry activities.

(23) Comment:

Some of the comments about BMPs being sufficient (see

(24) Comment,

above) further suggested that assessments of water quality using aquatic insects as indicators confirm that BMPs are protective of water quality and habitat for aquatic species. Therefore, BMPs are sufficient for protecting Neuse River waterdogs as well.

Our Response:

Much of the literature shared by commenters on the effectiveness of BMPs for protecting aquatic species and their habitats relies on aquatic macroinvertebrate assessments, mostly of aquatic insects. While they are a common rapid field assessment method for monitoring or measuring water quality, current scientific information does not support the assumption made by several commenters that presence or recovery of insects is a proxy for suitable habitat recovery after disturbance (

i.e.,

a sedimentation event) for aquatic salamanders like the Neuse River Waterdog, or a proxy for recolonization of waterdogs after such a disturbance. While reliance on effects to aquatic insect communities is a useful rapid assessment tool for water quality, there is a gap in the best available science about how that resilience relates to comparatively long-lived vertebrates, such as salamanders (

e.g.,

Neuse River waterdog). Some research comparing how macroinvertebrate assessments relate to those of other taxa (

e.g.,

amphibians, fishes, or zooplankton) indicates that they do not correspond well in evaluations of watershed land use or anthropogenic effects on water quality and water resources (

e.g.,

Brazner et al. 2007, pp. 625-627; Kovalenko et al. 2019, entire; Herlihy et al. 2020, entire). Further, some studies recommend using assessments from multiple taxa to better evaluate the response of biological integrity in streams to anthropogenic activities (Herlihy et al. 2020, p. 10; Hughes et al. 2000, pp. 437-440). Since aquatic amphibians are long-lived and exhibit a high degree of site fidelity, these taxa may be a more reliable indicator of stream condition than macroinvertebrates or fishes (Welsh and Ollivier 1998, pp. 1128-1129). The risks of water quality impacts to many taxa highlighted the utility of aquatic insect assessments for evaluating forestry BMPs, along with the need for research on forestry BMP effectiveness for the protection of taxa other than aquatic insects (Warrington et al. 2017, entire).

Most aquatic insects are not considered rare species, and immigration by aquatic insects back into an affected stream reach may be facilitated by downstream drift or other mechanisms, including the adult winged flight stage, which allows immigration from other nearby waterbodies or from downstream reaches. The Neuse River waterdog is a rare, obligate aquatic salamander with different ecological requirements and a decades-long lifespan, compared to the shorter lifespan and aquatic larval phase of macroinvertebrate insects typically emphasized in assessments (

e.g.,

aquatic phases ranging less than 1 to 2 years for many mayflies (Ephemeroptera; Voshell 2002, p. 270); 1 to 2 years for many stoneflies (Plecoptera; Voshell 2002, p. 310); less than 1 to 2 years for most caddisflies (Trichoptera; Voshell 2002, p. 375)). Extirpation of the Neuse River waterdog from a stream reach after an impact to the population (

e.g.,

a sedimentation event that kills eggs or renders leaf packs unsuitable as foraging habitat) would have lasting consequences, and recolonization can be hampered by factors that are less problematic for non-rare aquatic insect species, such as instream barriers to migration, distance to the next

population, permanent or long-term alteration of streambed habitat that reduces its suitability for supporting the species (

e.g.,

filling of habitat crevices used for nesting and home range retreats with fine sediments), and a much longer generation time than most insects (approximately 6 years; Service 2021b, p.7).

(24) Comment:

Some commenters stated that the Service did not provide evidence that the Neuse River waterdog is a sensitive species, and at least one commenter stated that failure to describe its sensitivity or similarity to trout sensitivity is arbitrary and capricious.

Our Response:

As discussed above, the Act requires that we make determinations solely on the basis of the best available scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)). In making these determinations, we consider the ecological requirements of the species and how they are affected by the various factors. We included several details related to the ecological requirements of the Neuse River waterdog (

e.g.,

flow, dissolved oxygen), referenced the SSA report, and included a summary of risk factors to the species in the proposed rule published on May 22, 2019 (84 FR 23644). We further provided information in the document published on July 30, 2020 (85 FR 45839), including statements on the effects of sedimentation (

e.g.,

“Highly turbid, silted stream water can clog the external gills of waterdogs, and can also decrease the stream's insect population, an important source of food (Service 2021b, p. 8)” (85 FR 45839, July 30, 2020, p. 85 FR 45843)). The commenters may not have realized that the July 30, 2020, document presenting revisions to the proposed rule was not a complete reproposal; it presented only the substantive proposed revisions to the May 22, 2019, proposed rule. However, the concerns of the commenters have been carefully considered and addressed by removing references to trout and revising the final rule and SSA report to include more detailed information about the Neuse River waterdog, its habitat requirements, and sensitivity to threats, particularly sedimentation, using the best available scientific information about this species and relevant information from related species (

i.e.,

gilled, aquatic salamanders). These revisions provide evidence and justification that the Neuse River waterdog is a sensitive species in need of protection from risk factors that threaten survival, persistence, and habitat.

(25) Comment:

A few commenters highlighted proposed or final rules for other aquatic species that they say indicate a Service precedent for accepting State-approved forestry BMPs as sufficient for protection of a species (

i.e.,

they appear as an exception to the take prohibition) in a 4(d) rule. They indicated this precedent should apply to the 4(d) rule for Neuse River waterdog. Two related comments expressed concern that this rule would set a precedent not founded in the best available scientific information, if finalized with forest management requirements in the 4(d) exceptions that exceed State-recommended BMPs for the areas in which the Neuse River waterdog occurs.

Our Response:

First, 4(d) rules for threatened species are intended to establish species-specific regulations to provide for the conservation of a threatened species, and may incentivize beneficial actions for the species and reduce the regulatory burden on forms of take that are compatible with the conservation of the species. The 4(d) rules provide protection necessary and advisable to conserve the Neuse River waterdog by outlining prohibitions for the protection of the species, and if appropriate, any exceptions from the prohibitions. The species-specific nature of the rules indicates they do not set a precedent for other species. It may be practical to consider implications of how 4(d) rules are implemented for species that have overlapping geographic ranges and habitat needs, but we do not agree with the premise that any 4(d) rule sets a precedent for another species. Second, several of the comments referenced language that was not provided in the context of discussions for threatened species and a 4(d) rule and is irrelevant in this context. For example, commenters referenced language that refers to Alabama's forestry BMPs in the Summary of Factors Affecting the Species discussion in the final rule listing the Black Warrior waterdog (

Necturus alabamensis

) as endangered (83 FR 257, January 3, 2018, see p. 83 FR 263). Other comments we received referred to language for critical habitat designation—not for species listing and 4(d) rules—that listed BMPs among activities that can ameliorate threats to critical habitat. Comments also referenced the pearl darter (

Percina aurora

), a species listed as threatened in 2017 when the blanket 4(d) rule applied, extending all endangered species protections to threatened species; that listing rule (82 FR 43885; September 20, 2017) included silviculture with BMPs among actions unlikely to result in a violation of the Act's section 9, and it also listed poor silviculture among the factors affecting the species. Finally, some comments referenced the trispot darter (

Etheostoma trisella

), which is a threatened species with a species-specific 4(d) rule that includes an exception to the incidental take prohibitions for take associated with silviculture. The final 4(d) rule for the trispot darter (85 FR 61614; September 30, 2020) includes an exception for incidental take resulting from silviculture practices and forest management activities. Conditions of this exception include requirements for implementing State BMPs for SMZs, stream crossings, and forest roads, among others; removal of logging debris from channels; and a temporal window that only allows for the exception outside of that species' spawning season (

i.e.,

the exception only applies for a portion of the year). Although the trispot darter final 4(d) rule is the most relevant among the commenters' examples (

i.e.,

a threatened species with a 4(d) rule exception for silviculture), the Service is required to make the listing determination for the Neuse River waterdog based on the best available science and develop a species-specific 4(d) rule based on what is necessary and advisable to provide for the conservation this particular species. The Service's offices operate within discrete geographic regions, in part, to facilitate partnerships with State and other Federal agencies, Tribal communities, industry, and other nongovernmental organizations in their work area; through these partnerships, we are well poised to consider existing local environmental rules, local environmental conditions, and other factors, and to tailor the management needs of species. Prohibitions and exceptions for a threatened species outlined in its 4(d) rule are specific to the considerations for that particular species.

The species-specific nature of 4(d) rules is inherently resistant to precedent setting, because the Service must consider the needs of the species being listed as threatened and issue regulations deemed necessary and advisable to provide for the conservation of that species. The proposed 4(d) rule for the Neuse River waterdog did not prescribe management restrictions; rather, it outlined prohibitions (

e.g.,

take) to ensure the species and its habitat are not adversely affected, and exceptions to those prohibitions for incidental take resulting from activities that are not expected to adversely affect the species, and may

provide conservation benefits. The 4(d) exceptions provide specific information on the conditions required for being excepted from incidental take; they do not prohibit other forms of silvicultural management. Those activities not falling within the stated exceptions simply would require consultation with the Service under section 7, or a conservation agreement under section 10, of the Act. The 4(d) rule's exceptions, including the conditions necessary to meet those exceptions, are intended to provide some relief from regulatory burden, while avoiding adverse impacts to the species and adverse modification of the species' habitat.

(26) Comment:

Several commenters requested that the Service revise the proposed 4(d) rule to remove language referring to BMPs we find necessary for the conservation of the Neuse River waterdog and to only reference State-approved BMPs without addition or modification.

Our Response:

The Service's regulations typically do not refer to non-Federal rules, regulations, or guidance because doing so would result in an “incorporation by reference,” which means that the referenced non-Federal document would be considered a de facto Federal regulation, and each time that non-Federal document is updated or revised, we would have to go through rulemaking to update our regulations. Regulatory references are typically restricted to existing conservation regulatory requirements for species under another Federal statute or international agreement (

e.g.,

Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361

et seq.

); Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087)). State-approved BMPs for forestry are not species conservation regulatory requirements. Furthermore, the North Carolina Forestry BMP manual does not represent a law or requirement; it is a set of recommended practices for achieving compliance with North Carolina's FPGs, and the manual is subject to change. In fact, the NCFS has recently proposed revisions to the BMP manual (Gerow 2020, pers. comm.); this highlights the need to provide specific information for the conservation of a species in the text of the regulation. The Act guides the Service to establish a species-specific 4(d) rule for threatened species, including language stating the prohibitions and potential exceptions for the protection of the species.

(27) Comment:

During the reopened comment period (July 30-August 31, 2020), several commenters submitted form letters using identical language stating that compliance with North Carolina's BMPs should be sufficient to protect a landowner from prosecution for an illegal take of the Neuse River waterdog.

Our Response:

Illegal take of a species under protection of the Act is always prohibited. Take is only allowed by individuals who have appropriate permits or whose activities are covered by exceptions for incidental take; 50 CFR 17.3 defines “incidental taking” as any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. The 4(d) rule for the Neuse River waterdog applies all of the Act's section 9 take prohibitions, with certain exceptions from those prohibitions, including incidental take associated with four activity categories (species recovery by State agencies, channel restoration projects, bank stabilization projects, and silvicultural practices and forest management activities). To meet the 4(d) rule exception, maximum and proper implementation of State-approved BMPs is required and will ensure the excepted activity will avoid any take implications. However, we emphasize that illegal take (

i.e.,

activities not covered by an exception or by consultation with the Service) is prohibited.

(28) Comment:

During the reopened comment period (July 30-August 31, 2020), two commenters, including the NCFS and VDOF, offered alternative language for the entirety of the silvicultural component of the proposed 4(d) rule. They noted that this alternative language was drafted with the intent of applicability in targeted watersheds of the eastern Piedmont and Upper Coastal Plain regions of North Carolina. The alternative language states an exception to the take prohibitions for: Forestry-related activities, including silvicultural practices, forest management work, and fire control tactics, that achieve all of the following: (1) Establish a streamside management zone alongside the margins of each occupied waterway; (2) restrain visible sedimentation caused by the forestry-related activity from entering the occupied waterway; (3) maintain groundcover within the streamside management zone of the occupied waterway, and promptly re-establish groundcover if disturbed; (4) limit installation of new vehicle or equipment crossings of the occupied waterway to only where necessary for the forestry-related activity. Such crossings must have erosion and sedimentation control measures installed to divert surface runoff away and restrain visible sediment from entering the waterway, allow for movement of aquatic organisms within the waterway, and have groundcover applied and maintained through completion of the forestry-related activity; (5) prohibit the use of tracked or wheeled vehicles for reforestation site preparation within the streamside management zone of the occupied waterway; (6) prohibit locating log decks, skid trails, new roads, and portable mill sites in the streamside management zone of the occupied waterway; (7) prohibit obstruction and impediment of the flow of water, caused by direct deposition of debris or soil by the forestry-related activity, within the occupied waterway; (8) maintain shade over the occupied waterway similar to that observed prior to the forestry-related activity; and (9) prohibit discharge of any solid waste, petroleum, pesticide, fertilizer, or other chemical into the occupied waterway.

Our Response:

The Service agrees with the comment and has revised the 4(d) rule language to reflect these suggested changes for the forestry exception. We recognize forestry management that implements State-approved BMPs protects water quality, and we realize that, in order to meet specific goals, flexibility is needed with regard to which BMPs are used during management. This final 4(d) rule provides practitioners the flexibility to choose which BMPs to use in their forestry activities while providing for the conservation of the species. We emphasize here that we deemed those revisions necessary because of concerns about confusion and challenging implementation related to multiple sets of forestry-related rules and guidelines already in place within the geographic region of Neuse River waterdog. As revised, this exception to incidental take prohibition, when properly implemented, will promote forestry management activities while also providing for the conservation the Neuse River waterdog.

(29) Comment:

One commenter recommended that the Service remove references to silviculture being a potential source of pollution in the description of critical habitat units, indicating that the forestry sector in general believes that, although statements about silvicultural runoff as a source of pollution may have had some credence a generation or more ago, the advent of BMPs, their proven effectiveness, and their high implementation rates call for the elimination of these statements, and those similar to it, in a modern 4(d) rule.

Our Response:

The Service acknowledges that there are multiple sources of sedimentation and other pollutants; we have removed the statements about silvicultural runoff as a source of pollution and replaced it with language about management activities that will benefit habitat for the species in the description of critical habitat units. In addition, we agree that the best available science indicates that proper implementation of forestry BMPs reduces negative effects on water quality outcomes compared to historical silvicultural practices or those that do not apply or properly implement BMPs. Although BMPs generally are implemented at high rates, they are not universally applied or always properly implemented, and forest management activities can still contribute to sediment pollution in a watershed. As noted in our response to

(22) Comment,

above, the most recent assessment of BMP implementation by the NCFS reported that the majority of risks to water quality identified during the assessment were associated with forest managers' failure to use or properly apply BMPs related to SMZs, stream crossings, and post-harvest restoration (Coats 2017, pp. 8-34). Moreover, as noted in our response to

(23) Comment,

above, metrics for BMP effectiveness are often associated with responses of macroinvertebrate insects; while such metrics are useful, there is no evidence to support that insect metrics capture the responses of benthic vertebrates, such as the Neuse River waterdog, to the effects of sedimentation on their habitat. One study examining the effects of silvicultural practices on salamanders reported that larval salamander abundance was negatively associated with stream embeddedness, as a result of sedimentation, at the reach scale, and overall, larval salamander abundance decreased with increasing harvested timber volume and increased with time after harvests (Moseley et al. 2008, pp. 303-305).

I. Final Listing Determinations

Background

Carolina Madtom

A thorough review of the taxonomy, life history, and ecology of the Carolina madtom is presented in the SSA report (Service 2021a, pp. 5-8).

The Carolina madtom (

Noturus furiosus

) is a moderate-sized catfish with a short, chunky body and a distinct color pattern of three dark saddles and a wide black stripe along its side.

Furiosus

means “mad” or “raging,” as the Carolina madtom is the most strongly armed of the North American catfishes with stinging spines containing a potent poison in their pectoral fins. They are found in medium to large flowing streams of moderate gradient in both the Piedmont and Coastal Plain physiographic regions in the Neuse and Tar River basins. Suitable instream habitats are described as riffles, runs, and pools with current, and during the warm months the madtoms are found in or near swift current at depths of 1.0 to 3.0 feet (0.3 to 0.9 meters). Stream bottom substrate composition is important for benthic Carolina madtoms; leaf litter, sand, gravel, and small cobble are all common substrates associated with the species, although it is most often found over sand mixed with pea-sized gravel and leaf litter. During the breeding season, Carolina madtoms shift to areas of moderate to slow flow with abundant cover used for nesting.

The nesting season extends from about mid-May to late July. Nest sites are often found under or in relic freshwater mussel shells, under large pieces of water-logged tree bark, or in discarded beverage bottles and cans partially buried on the stream bottom. The female produces about 80 to 300 eggs, and the male guards the nest until the eggs hatch. Clutch sizes average 152 larvae, and life expectancy for these fish is at least 4 years.

The Carolina madtom is a bottom-dwelling insectivore that feeds primarily during the night, with peaks at dawn and dusk. More than 95 percent of the food organisms in the Carolina madtom stomachs were larval midges, mayflies, caddisflies, dragonflies, and beetle larvae (Burr et al. 1989, p. 78).

Neuse River Waterdog

A thorough review of the taxonomy, life history, and ecology of the Neuse River waterdog is presented in the SSA report (Service 2021b, pp. 5-10).

The Neuse River waterdog (

Necturus lewisi

) is a permanently aquatic salamander species endemic to the Neuse and Tar-Pamlico River drainages in North Carolina. The species occurs in riffles, runs, and pools in medium to large streams and rivers with moderate gradient in both the Piedmont and Coastal Plain physiographic regions. Neuse River waterdogs are from an ancient lineage of permanently aquatic salamanders in the genus

Necturus,

and one of three species of

Necturus

in North Carolina. Similar to the endangered Black Warrior waterdog (

Necturus alabamensis

) and several other permanently aquatic salamanders with similar life history and ecology, stream bottom substrate composition is also important for Neuse River waterdogs: Gravel, cobble, or coarse sand substrates, with ample cover, that are free of fine sediments are commonly associated with the species.

Neuse River waterdogs have a reddish-brown skin with black spots, reaching up to 9 inches (in) in length as adults. Their underside is brownish-grey, and they have external bushy dark red gills. They eat large aquatic arthropods, aquatic and terrestrial invertebrates, and even some vertebrates like small fish. Like most waterdogs, they are opportunistic feeders who lie in wait for a small organism to swim or float by. All prey are ingested whole, and larger items are sometimes regurgitated and then re-swallowed.

Neuse River waterdogs are found in streams ranging from larger headwater streams in the Piedmont to coastal streams up to the point of saltwater intrusion. None have been found in lakes or ponds. They are usually found in streams wider than 15 meters (m), deeper than 100 centimeters (cm), and with a main channel flow rate greater than 10 cm per second. Further, they need clean, flowing water characterized by high dissolved oxygen concentrations. The preferred habitats vary with the season, temperature, dissolved oxygen content, flow rate, and precipitation; however, the waterdogs maintain home retreat areas under rocks, in burrows, or under substantial cover in backwater or eddy areas. As with other permanently aquatic salamanders, when interstitial spaces between substrates become compacted or filled with fine sediment, the amount of available foraging habitat and protective cover for salamanders is reduced, resulting in population declines (83 FR 257; January 3, 2018).

The longevity of Neuse River waterdogs is not known; however, their close relative

N. maculosus

may live for 30 or more years. Like many long-lived animals, breeding is delayed until a minimum body size is reached, and they tend to grow slowly. Generation time for Neuse River waterdogs is 10 to 15 years. They breed once per year, with mating in the fall or winter and spawning in the spring. Females lay a clutch of about 25-90 eggs, typically under large rocks with sand and gravel beneath them, or under similar cover (

e.g.,

logs, holes in banks) in coastal rivers where rocky habitat is limited, and then guard the rudimentary nest.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures

for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following 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.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

Our proposed rule described “foreseeable future” as the extent to which we can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. The Service since codified its understanding of foreseeable future in 50 CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. The Service will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Service need not identify the foreseeable future in terms of a specific period of time. These regulations did not significantly modify the Service's interpretation; rather they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future based on our long-standing practice. Accordingly, though regulations do not apply to the final rule for the Carolina madtom and Neuse River waterdog because they were proposed prior to their effective date, they do not change the Service's assessment of foreseeable future for the Carolina madtom and Neuse River waterdog as contained in our proposed rule and in this final rule.

Analytical Framework

The SSA reports document the results of our comprehensive biological review of the best scientific and commercial data regarding the status of each species, including an assessment of the potential threats to each species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA reports; the full SSA reports can be found at Docket No. FWS-R4-ES-2018-0092 and on

http://www.regulations.gov.

To assess viability of Carolina madtom and Neuse River waterdog, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and

described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA process involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of each species and its resources, and the threats that influence each species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

Carolina Madtom

To evaluate the current and future viability of the Carolina madtom, we considered a range of conditions to allow us to assess the species' resiliency, representation, and redundancy. We assessed resiliency for the Carolina madtom using population factors (Management Unit (MU) occupancy over time, approximate abundance, and recruitment) and habitat elements (water quality, water quantity, habitat connectivity, and instream substrate). For the purposes of this assessment, populations were delineated using the same three river basins that Carolina madtoms have historically occupied, namely the Tar, Neuse, and Trent River basins. Populations were further delineated using MUs, defined as one or more hydrologic unit code (HUC) 10 watersheds that species experts identified as the most appropriate unit for assessing population-level resiliency. To assess resiliency, we analyzed population factors as well as habitat elements that were determined in our analysis of the species' needs to have the most influence on the species. We then assessed the overall condition of each population. Overall population condition rankings were determined by combining the two population factors and four habitat elements. For a more detailed explanation of the condition categories, see the SSA report (Service 2021a, pp. 15-19).

Metrics that speak to a species' adaptive potential, such as genetic and ecological variability, can be used to assess representation. Representation for the Carolina madtom can be described in terms of ecological variation seen in river basin variability (Tar, Trent, and Neuse River basins) and physiographic variability (eastern Piedmont and Coastal Plain). We assessed Carolina madtom redundancy by first evaluating occupancy within each of the hydrologic units that constitute MUs, and then we evaluated occupancy at the MU, and ultimately the population level.

Current Condition of Carolina Madtom

The historical range of the Carolina madtom included streams and rivers in the Tar-Pamlico, Neuse, and Trent basins, with documented historical distribution in 31 HUC10s in 11 MUs across the three populations (see Table 1, below). The results of surveys conducted from 2011 to 2018 suggest that the currently occupied range of the Carolina madtom includes four MUs from two populations, corresponding to the Tar and Neuse River basins; however, only one population (Tar) has multiple documented occurrences within the past 5 years. The species has been extirpated from the southern portion of its range, including a large portion of the Neuse River basin and the entire Trent River basin. The Carolina madtom currently occupies 9 of the 31 historically occupied HUC10s (with “currently” defined as the observation of at least one specimen from 2011 to 2018), 7 of which are in the Tar River basin and 2 in the Neuse River basin. At the population level, the overall current condition (= resiliency) was estimated to be moderate for the Tar population, very low for the Neuse population, and likely extirpated for the Trent population.

Table 1—Population and Management Unit (MU) Naming for Carolina Madtom

Population/management unit

Tar:

Upper Tar.

Middle Tar.

Lower Tar.

Fishing Creek Subbasin.

Sandy-Swift.

Neuse:

Upper Neuse.

Middle Neuse.

Lower Neuse.

Little River.

Contentnea Creek.

Trent:

Trent.

We estimated that the Carolina madtom currently has low adaptive potential due to limited representation in two river basins and two physiographic regions. The species retains 33 percent of its known river basin variability, considering greatly reduced variability observed in the Neuse River population. In addition, compared to historical occupancy, the species currently retains very limited physiographic variability in the Coastal Plain (14 percent) and moderate variability in the Piedmont (56 percent).

The range of the Carolina madtom has always been very narrow, limited to the Tar, Neuse, and Trent River drainages. Within the identified representation areas, the species retains redundancy within the Tar River population (three MUs currently extant); however, it has limited redundancy (two MUs extant) in the Neuse River population and no redundancy (extirpated) in the Trent River population. Overall, the species has lost 55 percent of its redundancy across its narrow, endemic range.

Neuse River Waterdog

To evaluate the current and future viability of the Neuse River waterdog, we assessed a similar range of conditions as described above for Carolina madtom to allow us to consider the species' resiliency, representation, and redundancy. As with the madtom, populations were delineated using the three river basins that Neuse River waterdogs have historically occupied (

i.e.,

Tar-Pamlico, Neuse, and Trent River basins). “Tar-Pamlico” refers to the lower portion of the Tar River basin, which includes the Pamlico River. Because the river basin level is at a very coarse scale, populations were further delineated using MUs. MUs were defined as one or more HUC10 watersheds that species experts identified as most appropriate for assessing population-level resiliency. Resiliency is characterized, and overall population condition rankings and habitat condition rankings were determined, similarly as for the madtom.

Representation for the Neuse River waterdog can be described in terms of the size and range of the river systems it inhabits (medium streams to large rivers in three river basins), and

physiographic variability (Piedmont and Coastal Plain). Redundancy for the Neuse River waterdog is defined as multiple highly resilient populations (inclusive of multiple, resilient MUs) distributed throughout the species' historical range. That is, highly resilient populations, coupled with a relatively broad distribution, have a positive relationship to species-level redundancy.

Current Condition of Neuse River Waterdog

The historical range of the Neuse River waterdog included third and fourth order sized streams and rivers in the Tar-Pamlico, Neuse, and Trent basins, with documented historical distribution in 40 HUC10s in nine MUs across the three populations (see Table 2, below). Currently, the Neuse River waterdog is extant in all nine identified MUs; however, within those MUs, it is presumed extirpated from 35 percent (14 out of 40) of the historically occupied HUC10s, and another 25 percent of the streams are in low or very low condition. Of the nine MUs, two (22 percent) are estimated to have high resiliency, three (33 percent) moderate resiliency, and four (45 percent) low resiliency. At the population level, one of three populations (Tar-Pamlico) is estimated to have moderate resiliency, and two (Neuse and Trent) are estimated to have low resiliency.

Table 2—Population and Management Unit (MU) Naming for Neuse River Waterdog

Population/management unit

Tar:

Upper Tar.

Middle Tar.

Lower Tar.

Sandy-Swift.

Fishing Creek Subbasin.

Neuse:

Upper Neuse.

Middle Neuse.

Lower Neuse.

Trent:

Trent.

We estimated that the Neuse River waterdog currently has moderate adaptive potential, primarily due to ecological representation in three river basins and two physiographic regions. The species retains nearly all of its known river basin variability; however, the variability within the basins is reduced compared to historical distribution. In addition, compared to historical occupancy, the species currently retains moderate physiographic variability in the Coastal Plain (87 percent) and in the Piedmont (67 percent). However, the Piedmont has experienced significant declines in occupancy, with nearly half of the MUs losing species occurrences. Of the 16 historically occupied Piedmont HUC10s, 7 are no longer occupied, and 9 have experienced loss.

Like the madtom, the range of the Neuse River waterdog has always been very narrow, limited to the Tar-Pamlico, Trent, and Neuse River drainages. Within the identified representation areas (

i.e.,

river basins), the species retains redundancy in terms of occupied HUC10s within the Tar-Pamlico River population (82 percent) and the Neuse River population (70 percent), but 67 percent of redundancy has been lost in the Trent River population. Overall, the species has lost 27 percent (11 out of 40 historically occupied HUC10s) of its redundancy across its narrow, endemic range.

Factors Influencing Viability of Neuse River Waterdog and Carolina Madtom

Several natural and anthropogenic factors may impact the status of species within aquatic systems. Generally, these factors can be categorized as either environmental stressors (

e.g.,

development, agriculture practices, or forest management) or systematic changes (

e.g.,

climate change, invasive species, dams or other barriers). The largest threats to the future viability of the Carolina madtom and Neuse River waterdog involve habitat degradation from stressors influencing the four habitat elements: Water quality, water quantity, instream habitat, and habitat connectivity. All of these factors are exacerbated by the effects of climate change. A brief summary of these primary stressors is presented below; for a full description of these stressors, refer to chapter 4 of the SSA report for each species.

Development and Pollution

Development refers to urbanization of the landscape, and the effects of urbanization may include alterations to water quality, water quantity, and habitat (both instream and streamside) (Service 2021ab, p. 40). Urbanization increases the amount of impervious surfaces, such as paved roads, parking lots, roofs, and even highly compacted soils like sports fields. Impervious surfaces prevent the natural soaking of rainwater into the ground and slow seepage into streams. Instead, the rainwater accumulates and flows rapidly into storm drains, which drain as runoff to local streams. This degrades stream habitat in three ways: Water quantity (high flow during storms), water quality (sediment and pollutants washing into streams), and increased water temperatures due to the surfaces heating the water. Sedimentation, including short-term storm events, has been shown to reduce survival (Honeycutt et al. 2016, pp. 766-767), limit juvenile abundance (Bendik and Dries 2018, pp. 5916-5920), reduce body size (Gray et al. 2004, p. 719), or result in a significant decline in aquatic salamander density in streams (Welsh and Ollivier 1998, pp. 1123-1128; Welsh et al. 2019, pp. 7-10). Concentrations of contaminants, including nitrogen, phosphorus, salts, insecticides, polycyclic aromatic hydrocarbons, and personal care products, increase with urban development (Giddings et al. 2009, p. 2; Bringolf et al. 2010, p. 1,311). Water infrastructure development, including water supply, reclamation, and wastewater treatment, results in several pollution point discharges to streams.

Increasing urbanization results in more road development. By its nature, road development increases impervious surfaces, as well as land clearing and habitat fragmentation. Roads are generally associated with negative effects on the biotic integrity of aquatic ecosystems, including changes in surface water temperatures and patterns of runoff; sedimentation; and adding heavy metals (especially lead), salts, organics, ozone, and nutrients to stream systems (Trombulak and Frissell 2000, p. 18). These changes affect stream-dwelling organisms such as the Carolina madtom and Neuse River waterdog by displacing them from once-preferred habitats, as well as increasing exposure and assimilation of pollutants that can result in growth defects, decreased immune response, and even death. In addition, a common impact of road development is improperly constructed culverts at stream crossings. These culverts act as barriers, either because stream flow through the culvert varies significantly from the rest of the stream or because the culvert ends up being perched, so that aquatic organisms such as these species cannot pass through them.

Carolina madtoms and Neuse River waterdogs prefer clean water with permanent flow and are not tolerant of siltation and turbidity. Benthic vertebrates, such as the madtom and waterdog, have disproportionate rates of imperilment and extirpation due to pollution because stream bottoms are often the first habitats affected, particularly by sedimentation. Sedimentation increases embeddedness of stream substrates, making it more difficult for madtoms or salamanders to

burrow (Unger et al. 2020, pp. 121-122) and leaving them more exposed (

e.g.,

to predation). Excess sedimentation influences nest site selection and reduces habitat availability (Guy et al. 2004, pp. 80-82, 85) and is related to a reduction in current distribution of salamanders compared to historical occupancy of sites (Quinn et al. 2013, pp. 78, 81-82). Furthermore, the Carolina madtom is classified as an “intolerant” species according to the North Carolina Division of Water Resources (NCDWR), meaning the species is most affected by environmental perturbations (NCDWR 2013, p. 19). Fine sediments can influence the survival, distribution, and abundance of Neuse River waterdog by “reduc[ing] the availability of food and cover, and hinder[ing] reproduction by smothering nests and eggs” (Braswell and Ashton 1985, p. 28).

All three of the river basins within the range of the Carolina madtom and Neuse River waterdog are affected by development, from an average of 7 percent in the Tar River basin to an average of 13 percent in the Neuse River basin (based on the 2011 National Land Cover Data). The Neuse River basin contains one-sixth of the entire State's human population, indicating heavy development pressure on the watershed. The Middle Neuse MU contains 182 impaired stream miles, 9 major discharges, 272 minor discharges, and nearly 4,000 road crossings, all affecting the quality of the habitat for both species. The Middle Neuse is also 31 percent developed, with nearly 8 percent impervious surface, which changes natural streamflow, reduces appropriate stream habitat, and decreases water quality throughout the MU. For complete data on all of the populations, refer to appendices A and D of the SSA reports.

Agricultural Practices

The main impacts to the Neuse River waterdog and Carolina madtom from agricultural practices occur from water pumping for irrigation and when best management practices (BMPs) for conservation are not followed, causing sedimentation, and nutrient and chemical pollution. Sedimentation can fill interstitial spaces of streambed substrates, altering habitat suitability of nesting and retreat sites for madtoms and waterdogs; it can coat leaf litter, diminishing or destroying waterdog foraging habitat; and it can smother and kill eggs. Sedimentation from agriculture has been linked to reduced body size in salamanders and other amphibians (Gray 2002, pp. 23-34, 48, 105; Gray et al. 2004, pp. 719, 727). Fertilizers and animal manure, which are both rich in nitrogen and phosphorus, are the primary sources of nutrient pollution from agricultural sources. Excess nutrients impact water quality when it rains or when water and soil containing nitrogen and phosphorus wash into nearby waters or leach into the water table or groundwater. Confined animal feeding operations and feedlots can cause degradation of aquatic ecosystems and may cause direct effects to the species (

e.g.,

death resulting from hypoxia), primarily because of manure management issues. Fertilized soils, manure, and livestock can be significant sources of nitrogen-based compounds like ammonia and nitrogen oxides. Ammonia can be harmful to aquatic life when concentrated in surface waters. For madtoms and waterdogs, excess ammonia can cause a number of problems, including alteration of metabolism, injury to gill tissue, and reduced growth rates. Extreme levels of ammonia can cause death.

Excessive water withdrawal or water withdrawal done illegally (without the necessary permit, during dry times of year) may cause impacts to the amount of water available to downstream sensitive areas during low flow months, resulting in dewatering of channels and displacement of fish and permanently aquatic salamanders, leading in turn to potential desiccation and death. According to the 2011 National Land Cover Data, all of the watersheds within the range of the Carolina madtom and Neuse River waterdog are affected by agricultural land uses, most with 25 percent or more of the watershed having been converted for agricultural use.

Forest Management

Silvicultural activities, when performed according to strict forest practices guidelines (FPGs) or BMPs, can retain adequate conditions for aquatic ecosystems; however, when FPGs/BMPs are not followed or if they fail, these practices can also contribute to the myriad of stressors facing aquatic systems in the Southeast, including North Carolina. Both small- and large-scale clearing of forests have been shown to have a significant impact upon the physical, chemical, and biological characteristics of adjacent small streams (Allan 1995, pp. 324-327; Valente-Neto 2015, p. 116). Clearcutting and harvests in riparian systems can eliminate shade provided by forest canopies, exposing streams to more sunlight and increasing the instream water temperature (Swift and Messer 1971, p. 111; Hewlett and Forston 1982, p. 983; GB Rishel 1982, p. 112; Lynch et al. 1984, p. 161; Allan 1995, p. 325; Keim and Shoenholtz 1999, p. 197; Carroll et al. 2004, p. 275; B.D. Clinton 2011, p. 979; Caldwell et al. 2014, p. 3). The increase in stream temperature and light after deforestation alters the macroinvertebrate and other aquatic species richness and abundance composition in streams (Wenger 1999, p. 35; Caldwell et al. 2014, p. 3). As stated above, both the Neuse River waterdog and Carolina madtom are sensitive to changes in temperature, and sustained temperature increases will stress and possibly lead to mortality for these species.

Forestry activities can include the construction of logging roads through the riparian zone, and this can directly degrade nearby stream environments. Roads can cause point-source pollution and sedimentation, as well as sedimentation traveling downstream into sensitive habitats. These effects lead to stress and mortality for both species, as discussed above under “Development and Pollution,” and as reported in studies of forestry-related sedimentation effects on survival of aquatic vertebrates (Lowe et al. 2004, entire; Moseley et al. 2008, entire; Peterman & Semlitsch 2009, entire). While BMPs are presently widely adhered to, they were not always common practice, and implementation is not perfect. The most recent surveys of the Neuse and Tar-Pamlico River basins show that the average BMP implementation rate is approximately 88 to 90 percent (Coats 2017, p. 38). Accordingly, while improper implementation is uncommon, failure to implement or inadequate implementation can have negative effects on sensitive aquatic species. Further, the most recent assessment of forestry BMPs in North Carolina reported that improperly implemented BMPs associated with streamside management zones and stream crossings were frequently associated with risks to water quality (Coats 2017, p. 9).

Invasive Species

There are many areas across North Carolina where invasive species have invaded aquatic communities; are competing with native species for food, light, or breeding and nesting areas; and are impacting biodiversity. The flathead catfish (

Pylodictis olivaris

) is an invasive species that most likely impacts Carolina madtom distribution and may also have an impact on Neuse River waterdog distribution. The flathead catfish is an apex predator, known to influence native fish populations, including predation on benthic fishes, including madtoms, and

it occurs in both the Neuse and Tar-Pamlico River basins. It is not known whether this fish also preys on waterdogs, but it is speculated that Neuse River waterdog inactivity during warmer months is in part due to the avoidance of large, predatory fishes (Braswell 2005, p. 870).

Hydrilla (

Hydrilla verticillata

), an invasive aquatic plant, alters stream habitat, decreases flows, contributes to sediment buildup in streams, and can serve as a vector for a neurotoxic cyanobacteria known to affect other vertebrates (

e.g.,

fishes, turtles, waterbirds, and their predators). High sedimentation can cause suffocation, reduce stream flow necessary for madtom and waterdog survival, smother eggs, and degrade leaf pack foraging habitat by causing prey items to abandon them. Hydrilla occurs in several watersheds where both species occur and has been recently documented from the Neuse system and the Tar River. While there are no data to indicate that hydrilla currently has population-level effects on these two species, its spread is expected to increase in the future and control or eradication is difficult.

Red swamp crayfish (

Procambarus clarkii

) is an invasive crayfish species native to the southern Mississippi River drainage in the Gulf Coastal Plain and Florida panhandle to Mexico. Establishment of nonnative populations in eastern North Carolina are likely from release from aquaculture or from the aquarium trade (Nagy et al. 2020, unpaginated). Red swamp crayfish are physical ecosystem engineers, constructing extensive burrows that can collapse stream banks and cause erosion. They are prolific opportunistic omnivores, and they not only outcompete native crayfish but also other native animals, including amphibians like Neuse River waterdog, by reducing their densities in their habitat. Recent surveys have found that when red swamp crayfish are present, Neuse River waterdogs are not (Braswell, Hall, and Humphries 2020, pers. comm.).

Dams and Barriers

Extinction of some North American freshwater fish can be traced to impoundment and inundation of riffle habitats in all major river basins of the central and eastern United States. Upstream of dams, the change from flowing to impounded waters, increased depths, increased buildup of sediments, decreased dissolved oxygen, and the drastic alteration in resident fish populations can threaten the survival of fish and aquatic salamanders and their overall reproductive success. Downstream of dams, fluctuations in flow regimes, minimal releases and scouring flows, seasonal dissolved oxygen depletion, reduced or increased water temperatures, and changes in fish assemblages can also threaten the survival and reproduction of many aquatic species. Dams have also been identified as causing genetic segregation or isolation in river systems—resident species can no longer move freely through different habitats and may become genetically isolated from other populations throughout the river. Improperly constructed culverts at stream crossings also can act as significant barriers and have some similar effects as dams on stream systems. Fluctuating flows through the culvert can vary significantly from the rest of the stream, preventing aquatic species passage and scouring downstream habitats. If a culvert ends up being perched above the stream bed, aquatic organisms cannot pass through it. All of the MUs containing Neuse River waterdogs and Carolina madtom populations have been impacted by dams, with as few as 11 dams in the Contentnea Creek MU to 287 dams in the Middle Neuse MU.

Energy Production and Mining

The Neuse River waterdog and its habitat face impacts from oil and gas production, coal power, hydropower, and the use of biofuels. Coal mined from other States is used for energy production in North Carolina. Damage to fish and wildlife from exposure to coal ash slurry ranges from physiological, developmental, and behavioral toxicity to major population- and community-level changes. Contamination of aquatic habitats by coal-combustion residue can result in the accumulation of metals and trace elements in larval amphibians, including arsenic, cadmium, chromium, copper, mercury, lead, selenium, and vanadium, potentially leading to developmental, behavioral, and physiological effects (Rowe et al. 2002, entire). As recently as October 2016, Neuse River waterdogs in the Neuse River were exposed to coal ash slurry when Hurricane Matthew caused inundation of coal ash storage ponds. Coal-fired power plants pump large volumes of water to produce electricity, and aquatic organisms such as larval waterdogs can be pulled in and killed unless measures are sufficient to keep organisms from being impacted. After water is used for electricity production, it is returned to surface waters, but the temperature can be considerably higher than the temperature of the stream, reducing the ability of the species to spawn.

Hydropower as a domestic energy source is becoming more prevalent in North Carolina, including areas where the Neuse River waterdog occurs. Like other impoundments, streams and rivers impounded by hydropower dams are changed from lotic systems to lentic systems, fragmenting habitats and disrupting movements and migrations of fish and other aquatic organisms like the Neuse River waterdog. Downstream water quality can also suffer from low dissolved oxygen levels and altered temperatures. In addition, hydropower generation can significantly change flow regimes downstream of hydropower dams, and can affect other riverine processes, such as sediment transport, nutrient cycling, and woody debris transport.

Potential impacts to both species from oil and gas extraction are numerous; they include water quality and water quantity impacts, riparian habitat fragmentation and conversion, increased sand mining (used in oil and gas extraction), and increased road and utility corridors. While oil and gas extraction currently does not, and likely will not, occur in the Tar River basin due to lack of subsurface shale deposits, impacts from shale gas extraction could occur in the Neuse River basin (Service 2021b, p. 46). Future impacts from oil and gas exploration and production are certain, as North Carolina has recently begun to allow fracking operations to drill for natural gas Statewide.

Climate Change

Aquatic systems are encountering changes and shifts in seasonal patterns of precipitation and runoff as a result of climate change. While both of these species have evolved in habitats that experience seasonal fluctuations in discharge, global weather patterns (

e.g.,

El Niño or La Niña) can have an impact on the normal regimes. Even during naturally occurring low flow events, amphibians and fish either become stressed because they exert significant energy to move to deeper waters or they may succumb to desiccation. Because low flows in late summer and early fall are stress-inducing, droughts during this time of year result in an increase in stress and, potentially, an increased rate of mortality.

Droughts have impacted all river basins within the range of both species, from an “abnormally dry” ranking for North Carolina in 2001 on the Southeast Drought Monitor scale to the highest ranking of “exceptionally dry” for the entire range of both species in 2002 and 2007. The 2015 drought data indicated

that the entire Southeast was under conditions ranging from “abnormally dry” to “moderate drought” or “severe drought.” These data are from the first week in September, which as noted above is a very sensitive time for drought to be affecting both species. Tributaries in the Neuse River basin had consecutive drought years in the period 2005-2012, indicating sustained stress on the species over a long period of time. Amphibians and fish have limited refugia from disturbances such as droughts and floods, and they are completely dependent on specific water temperatures to complete their physiological requirements. Changes in water temperature lead to stress and increased mortality, and also increase the likelihood of extinction for both species. Increases in the frequency and strength of storm events, which are caused by climate change, alter stream habitat, either directly via channelization or clearing of riparian areas or indirectly via high streamflows that reshape the channel and cause sediment erosion. The large volumes and velocity of water, combined with the extra debris and sediment entering streams following a storm, stress, displace, or kill Neuse River waterdogs and Carolina madtoms.

Synergistic Effects

In addition to individually impacting the species, it is likely that several of the above summarized risk factors are acting synergistically or additively on both species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For instance, effects of sedimentation and predatory fishes on large aquatic salamanders have been found, in which larvae were more affected by predatory fishes and adults were more affected by sedimentation, suggesting that persistence of salamanders was especially threatened in streams with both stressors (Lowe et al. 2004, pp. 164, 167-170). As an example, within Carolina madtom and Neuse River waterdog habitat, there are 182 miles of impaired streams in the Middle Neuse MU. They have low benthic-macroinvertebrate scores, low dissolved oxygen, and low pH, and they contain

Escherichia coli

(also known as

E. coli

). There are 9 major and 272 minor discharges within this MU, along with 287 dams, almost 4,000 road crossings, and droughts recorded for 3 consecutive years in 2008-2010. If a small, but improperly installed, culvert at a road crossing prevents fish from moving up or downstream, the fish would not be able to escape to deeper areas of the stream during droughts. Similarly, a discharge into a stream has more impact on aquatic species if there are no precipitation events immediately following to help flush the system. These combinations of stressors on the sensitive aquatic species in this habitat likely impact both species more severely than any one factor alone.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA reports, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Conservation Actions

The Service and State wildlife agencies are working with numerous partners to provide technical guidance and offer conservation tools to meet both species and habitat needs in aquatic systems in North Carolina. Land trusts are targeting key parcels for acquisition; Federal, State, and university biologists are surveying and monitoring species occurrences; and there has been increased interest in efforts for captive propagation and species population restoration via augmentation, expansion, and reintroduction efforts, especially for the Carolina madtom. However, some of these programs are in their infancy, and currently none provides species-level protection at a scale such that the species would not warrant listing under the Act.

Future Scenarios

For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. To address uncertainty associated with the degree and extent of potential future stressors and their impacts on species' requisites, resiliency, redundancy, and representation were assessed using four plausible future scenarios. These scenarios were based, in part, on the results of urbanization and climate models that predict changes in habitat used by the Carolina madtom and the Neuse River waterdog. We developed scenarios by eliciting expert information on two main stressors, urbanization and climate change, that will impact the species in the future. The models that were used to forecast both factors projected 50 years into the future. Using the best available data to forecast plausible future scenarios allows the Service to determine if a species may become an endangered species in the foreseeable future. Relatively long species' life spans, well-developed downscaled climate models specific to the region, and adequate human population growth data available for the Southeast region provide some confidence in the range of outcomes predicted over 50 years. Beyond that timeframe, there is too much uncertainty in threats that will be occurring on the landscape and how the species may respond to those threats. For more detailed information on these models and their projections, please see the SSA reports (Service 2021ab, chapter 5).

In the first scenario, the “Status Quo” scenario, factors that influence current populations of the Carolina madtom and the Neuse River waterdog were assumed to follow current trends over the 50-year time horizon. Climate models predict that, if emissions continue at current rates, the Southeast will experience an increase in low flow (drought) events (IPCC 2013, p. 7). Likewise, this scenario assumed the `business as usual' (BAU) pattern of urban growth, which predicts that urbanization will continue to increase rapidly (Terando et al. 2014, p. 1). This continued growth in development means increases in impervious surfaces, increased variability in streamflow, channelization of streams or clearing of riparian areas, and other negative effects explained above under “Development and Pollution.” The “Status Quo” scenario also assumed that current conservation efforts would remain in place but that no new actions would be taken.

In the second scenario, the “Pessimistic” scenario, factors that negatively influence Neuse River waterdog and the Carolina madtom populations get worse; reflecting Climate Model representative concentration pathway (RCP) 8.5 (Wayne 2013, p. 11), effects of climate change are expected to be magnified beyond what is experienced in the “Status Quo” scenario. These predicted effects include extreme heat, more

storms and flooding, and exacerbated drought conditions (IPCC 2013, p. 7). Based on the results of the SLEUTH (slope, land use, exclusion, urban, transportation, and hillshade) BAU model (Terando et al. 2014, entire), urbanization in the relevant watersheds could expand to triple the amount of developed area, resulting in large increases of impervious surface cover and, potentially, consumptive water use. Increased urbanization and climate change effects are likely to result in increased impacts to water quality, water flow, and habitat connectivity, and we predict that there is limited capacity for species restoration under this scenario.

In the third scenario, labeled the “Optimistic” scenario, factors that influence population and habitat conditions of the Neuse River waterdog and the Carolina madtom are expected to be somewhat improved. Reflecting Climate Model RCP 2.6 (Wayne 2013, p. 11), climate change effects are predicted to be minimal under this scenario and would not include increased temperatures, and storms or droughts are as set forth in the “Status Quo” and “Pessimistic” scenario predictions. Urbanization is also predicted to have less impact in this scenario, as reflected by effects that are slightly lower than BAU model predictions (Terando et al. 2014, table 5-1). Because water quality, water flow, and habitat impacts are predicted to be less severe in this scenario as compared to others, it is expected that the species would have slightly positive responses. Targeted permanent protection of riparian areas is a potential conservation activity that could benefit these species, and current efforts are considered successful as part of the “Optimistic” scenario.

In the fourth scenario, the “Opportunistic” scenario, those landscape-level factors (

e.g.,

development and climate change) that are influencing populations of the Neuse River waterdog and the Carolina madtom get moderately worse, reflecting Climate Change Model RCP 4.5 (Wayne 2013, p. 11) and SLEUTH BAU (Terando et al. 2014, table 5-1). Effects of climate change are expected to be moderate, resulting in some increased impacts from heat, storms, and droughts (IPCC 2013, p. 7). Urbanization in this scenario reflects the moderate SLEUTH BAU levels, indicating approximately double the amount of developed area compared to current levels. Overall, it is expected that the synergistic impacts of changes in water quality, water flow, and habitat connectivity will negatively affect both species, although current land conservation efforts will benefit the species in some watersheds.

Future Conditions of the Carolina Madtom and Neuse River Waterdog

For details regarding the predicted future under each scenario, see chapter 6 of the SSA reports for each species (Service 2021ab).

Estimates of future resiliency for the Carolina madtom are low, as are estimates for representation and redundancy. Similarly, estimates of future resiliency for the Neuse River waterdog are moderate to low, as are estimates for representation and redundancy. Both species face a variety of risks from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats, and the madtom is particularly susceptible to predation from the invasive flathead catfish. These risks, which are expected to be exacerbated by urbanization and climate change, were important factors in our assessment of the future viability of the Carolina madtom and Neuse River waterdog. Given losses of resiliency, populations become more vulnerable to extirpation, resulting in concurrent losses in representation and redundancy. Predictions of Carolina madtom habitat conditions and population factors suggest possible extirpation in one of two currently extant populations. The one population predicted to remain extant (Tar) is expected to be characterized by low occupancy and abundance. Predictions of Neuse River waterdog habitat conditions and population factors suggest possible extirpation in two of three currently extant populations. Similar to the madtom, the one waterdog population predicted to remain extant (Tar-Pamlico) is expected to be characterized by low occupancy and abundance in the future.

Determinations of Carolina Madtom and Neuse River Waterdog Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following 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.

Carolina Madtom: Status Throughout All of Its Range

The historical range of the Carolina madtom included third and fourth order streams and rivers in the Tar, Neuse, and Trent drainages, with documented historical distribution in 11 MUs within 3 former populations, the Tar, Neuse, and Trent. The Carolina madtom is presumed extirpated from 55 percent (6) of the historically occupied MUs. Of the five MUs that remain occupied, one is estimated to have high resiliency, one with moderate resiliency, two with low resiliency, and one with very low resiliency. Scaling up from the MU to the population level, the Tar population is estimated to have moderate resiliency, the Neuse population is characterized by very low resiliency, and the Trent population is presumed to be extirpated. Of streams that were once part of the species' range, 82 percent are estimated to be in low condition or likely extirpated. Once known to occupy streams in two physiographic regions, the species has also lost substantial physiographic representation with an estimated 44 percent loss in Piedmont watersheds and an estimated 86 percent loss in Coastal Plain watersheds.

Estimates of current resiliency for Carolina madtom are low, as are estimates for representation and redundancy. The Carolina madtom faces a variety of ongoing threats from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats (Factor A). This species also faces the threat of predation from the invasive flathead catfish (Factor C). These threats are expected to be exacerbated by continued urbanization (Factor A) and climate change (Factor E). Given current rates of resiliency, populations are vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy.

The current conditions as assessed in the Carolina madtom SSA report show that 55 percent of the management units over three populations (river systems) are presumed extirpated. The Carolina madtom currently has two of three

remaining populations, but one of those populations (Neuse) is characterized by “very low” resiliency. Once known to occupy streams in two physiographic regions, the species has also lost substantial physiographic representation with an estimated 44 percent loss in Piedmont watersheds and an estimated 86 percent loss in Coastal Plain watersheds. The one moderately resilient population (Tar) was determined not to be sufficient for the species to withstand catastrophic events, nor is it sufficient to enable the species to maintain adaptive capacity. Therefore resiliency, redundancy, and representation are all at levels that put the species at risk of extinction throughout its range now. We conclude that the species is currently in danger of extinction throughout all of its range. Because the species is already in danger of extinction throughout its range, a threatened status is not appropriate.

Carolina Madtom: Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Carolina madtom is in danger of extinction throughout all of its range, and accordingly, did not undertake an analysis of any significant portions of its range. Because we have determined that the Carolina madtom warrants listing as endangered throughout all of its range, our determination is consistent with the decision in

Center for Biological Diversity

v.

Everson,

2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Carolina Madtom Determination of Status

Our review of the best available scientific and commercial information indicates that the Carolina madtom meets the Act's definition of an endangered species. Therefore, we are listing the Carolina madtom as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Neuse River Waterdog: Status Throughout All of Its Range

The historical range of the Neuse River waterdog likely included all third and fourth order streams and rivers throughout the Tar-Pamlico, Neuse, and Trent drainages, with documented historical distribution in nine MUs within three populations. Of those nine occupied MUs, two (22 percent) are estimated to have high resiliency, two (22 percent) moderate resiliency, and five (56 percent) low resiliency. Scaling up from the MU to the population level, one of three populations (the Tar population) is estimated to have moderate resiliency, and two (the Neuse and Trent populations) are characterized by low resiliency. In short, 60 percent of streams that were once part of the species' range are estimated to be in low condition or likely extirpated. The species is known to occupy streams in two physiographic regions, but it has lost physiographic representation with an estimated 43 percent loss in Piedmont watersheds and an estimated 13 percent loss in Coastal Plain watersheds.

The Neuse River waterdog faces threats from declines in water quality, loss of stream flow, riparian and instream fragmentation, and deterioration of instream habitats (Factor A). These threats are expected to be exacerbated by continued urbanization (Factor A) and effects of climate change (Factor E). Given current and future decreases in resiliency, populations become more vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios of Neuse River waterdog habitat conditions and population factors suggest reduced viability into the future. Under Scenario 1, the “Status Quo” option, a loss of resiliency, representation, and redundancy is expected. Under this scenario, we predicted that no MUs would remain in high condition, two would be in moderate condition, four would be in low condition, and three MUs would be likely extirpated. Redundancy would be reduced to four MUs in the Tar Population and two in the Neuse Population. Representation would also be reduced, primarily with reduced variability in the Piedmont and Coastal Plain.

Under scenario two, the “Pessimistic” option, we predicted substantial losses of resiliency, representation, and redundancy. Redundancy would be reduced to four MUs in one population, and the resiliency of that population is expected to be low. Five MUs were predicted to be extirpated, and, of the remaining four MUs, all would be in low condition. All measures of representation are predicted to decline under this scenario, leaving remaining Neuse River waterdog populations underrepresented in river basin and physiographic variability.

Under scenario three, the “Optimistic” option, we predicted slightly higher levels of resiliency, representation, and redundancy than were estimated under the Status Quo or Pessimistic options. Three MUs would be in high condition, one in moderate condition, and the remaining five would be in low condition. Despite predictions of population persistence in the Neuse and Trent River basins, these populations are expected to retain only low levels of resiliency; thus, levels of representation are also predicted to decline under this scenario.

Finally, under scenario four, the “Opportunistic” option, we predicted reduced levels of resiliency, representation, and redundancy. One MU would be in high condition, three would be in moderate condition, three would be in low condition, and two would be likely extirpated. Redundancy would be reduced with the loss of the Trent population. Under the “Opportunistic” scenario, representation is predicted to be reduced, with 67 percent of formerly occupied river basins remaining occupied and with reduced variability in the Piedmont and Coastal Plain physiographic regions. Both the “Optimistic” and “Opportunistic” scenarios were determined to be “unlikely” in the analysis, while the most likely scenarios were “Status Quo” and “Pessimistic.” Under either of these more likely scenarios, resiliency is low in most of the remaining populations, and many populations are likely extirpated so that redundancy and representation are significantly reduced. This expected reduction in both the number and distribution of resilient populations is likely to make the species vulnerable to catastrophic disturbance.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we predict that the population and habitat factors used to determine the resiliency, representation, and redundancy for the Neuse River waterdog will continue to decline. Thus, after assessing the best available information, we conclude that the Neuse River waterdog is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

First, we considered whether the Neuse River waterdog is presently in danger of extinction and determined that proposing endangered status is not appropriate. The current conditions as assessed in the Neuse River waterdog SSA report show that the species exists in nine MUs over three different populations (river systems) over a majority (65 percent) of the species' historical range. The Neuse River waterdog still exhibits representation across both physiographic regions, and extant populations remain across the range. In short, while the primary threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all of its range. However, according to our assessment of plausible future scenarios, the species is likely to become an endangered species in the foreseeable future throughout all of its range. Fifty years was considered “foreseeable” in this case because it included projections from both available models, and Neuse River waterdogs are a long-lived and slow-growing species. We can reliably predict both the future threats and the species' responses to those threats over 50 years as presented in the models of predicted urbanization and climate change.

As discussed above, the range of plausible future scenarios of Neuse River waterdog habitat conditions and population factors suggest reduced viability into the future. Both the “Optimistic” and “Opportunistic” scenarios were determined to be “unlikely” in the analysis, while the most likely scenarios were “Status Quo” and “Pessimistic.” Under either of these more likely scenarios, resiliency is low in most of the remaining populations, and many populations are likely extirpated so that redundancy and representation are significantly reduced. This expected reduction in both the number and distribution of resilient populations is likely to make the species vulnerable to catastrophic disturbance. Accordingly, we find the Neuse River waterdog warrants listing as threatened because it is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Neuse River Waterdog: Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in

Center for Biological Diversity

v.

Everson,

2020 WL 437289 (D.D.C. Jan. 28, 2020) (

Center for Biological Diversity

), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluate whether the species is endangered in any significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in

Center for Biological Diversity,

we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now (

i.e.,

endangered). In undertaking this analysis for Neuse River waterdog, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

For the Neuse River waterdog, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Declines in water quality, loss of stream flow, riparian and instream fragmentation, deterioration of instream habitats, and cumulative effects. We found a concentration of threats in the Trent River basin and the Upper and Middle Neuse River portions of the Neuse River waterdog's range. The species has experienced declines throughout its range, but most notably in the Piedmont portions of the upper and Middle Neuse River basin and the southern portion of its range, the Trent River basin.

The Neuse River waterdog population in the Trent has experienced a 67 percent decline in redundancy, with overall very low resiliency currently. Agriculture practices and CAFOs, numerous in the southeastern coastal plain of North Carolina, particularly in the Trent River basin, contribute to poor water quality and fragmented or deteriorated instream habitats, influencing resiliency of Neuse River waterdogs in this portion of the range.

The waterdog populations in the Upper and Middle Neuse basin also exhibit current low resiliency with only a 10 to 30 percent probability of species' persistence. Exceptionally high development pressure from the expanding Triangle Region of central North Carolina has contributed to declines in water quality, loss of stream flow, fragmentation of riparian and instream habitats, and overall deterioration of instream habitat for the Neuse River waterdog.

Since these management units have seen populations reduced to very low condition, this circumstance—in combination with the other threats acting on the species throughout its range—may indicate that there is a concentration of threats in these basins such that the species may be in danger of extinction in these portions of the range.

Small, isolated populations often exhibit reduced levels of genetic variability, which diminishes the species' capacity to adapt and respond to environmental changes, thereby decreasing the probability of long-term persistence. Small populations may experience reduced reproductive vigor, for example, due to inbreeding depression. Isolated individuals may have difficulty reproducing. The problems associated with small population size and vulnerability to random demographic fluctuations or natural catastrophes are further magnified by synergistic interactions with other threats, such as those discussed above. Based on our review of information and the synergistic effects of threats exacerbated by the very low-condition populations in the Trent, Upper Neuse, and Middle Neuse basins, we find that there is information that the populations in these basins may be in danger of extinction.

Because we have determined that the Trent, Upper Neuse, and Middle Neuse basins are portions of the range that may be in danger of extinction, we next evaluate whether those portions of the range may be significant. As an initial note, the Service's most recent definition of “significant” within agency policy guidance has been invalidated by court order (see

Desert Survivors

v.

Dep't of the Interior,

No. 16-cv-01165 (N.D. Cal. Aug. 24, 2018)). Therefore, for purposes of this analysis,

the Service is evaluating potentially significant portions of the range by applying any reasonable definition of “significant” in terms of its biological importance. Factors we considered in the “significance” analysis were: (1) Whether the portion is large geographically or in its contribution to resiliency, redundancy, and representation relative to the remainder of the range; (2) whether the portion contains high-quality habitat relative to the remainder of the range; (3) whether the portion constitutes high-value or unique habitat for the species; or (4) whether the portion contains habitat that is essential to the life history, and therefore the overall conservation, of the species.

We examined the first question of whether these portions could be significant portions of the Neuse River waterdog's range by examining their contribution to the resiliency, redundancy, and representation of the species. We determined that the Trent MU contains 1 out of 20 occupied HUC10 watersheds identified in the SSA report; thus, the Trent represents approximately 5 percent of the geographical range of the species. Similarly, the Upper Neuse MU contains 1 out of 20 HUC10 watersheds, or approximately 5 percent of the range as well. The Middle Neuse MU contains 4 out of 20 HUC10 watersheds, or approximately 20 percent of the geographical range. Currently, these areas individually or together (representing approximately 30 percent) represent a small portion of the waterdog's geographical range. Because these units collectively have few healthy populations, they are not currently contributing in an important way to the species' overall resiliency.

Neuse River waterdog populations are distributed over two physiographic regions in three river basins, and we considered geographic range as a surrogate for geographic variation and proxy for potential local adaptation and adaptive capacity. The Piedmont streams in the upper and middle Tar and upper and middle Neuse river basins contain similar features and instream habitats as those of the Coastal Plain streams in the lower Tar-Pamlico, lower Neuse, and Trent River basins. There are no data indicating genetic or morphological differentiation between the three river basins for the species. Further, the waterdog occurs in similar aquatic habitats and does not use unique observable environmental or behavioral characteristics attributable to any of the basins. Therefore, it exhibits similar basin-scale use of habitat.

At a management unit level, the Trent, Upper Neuse, and Middle Neuse MUs occur in stream habitat comprised of similar substrate types to the other MUs where the Neuse River waterdog performs the important life-history functions of breeding, feeding, and sheltering, and occurs in areas with water quality sufficient to sustain these essential life-history traits. The Trent, Upper Neuse, and Middle Neuse do not act as a refugia for the species or as an important spawning ground. Since the waterdog occurs in similar aquatic habitats, the Trent, Upper Neuse, and Middle Neuse exhibit similar habitat use as populations in the remainder of the range. Therefore, there is no unique, observable environmental usage or behavioral characteristics attributable to just the Trent, Upper Neuse, and Middle Neuse MUs.

Overall, we found no substantial information that would indicate the Trent, Upper Neuse, or Middle Neuse are portions of the range that may be significant in terms of their overall contribution to the species' resiliency, redundancy, and representation, or that they may be significant in terms of high-quality habitat or habitat that is otherwise important for the species' life history. As a result, we determined there is no portion of the Neuse River waterdog's range that constitutes a significant portion of the range. This is consistent with the courts' holdings in

Desert Survivors

v.

Department of the Interior,

No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and

Center for Biological Diversity

v.

Jewell,

248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). Accordingly, we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Determination of Neuse River Waterdog Status

Our review of the best available scientific and commercial information indicates that the Neuse River waterdog meets the Act's definition of a threatened species. Therefore, we are listing the Neuse River waterdog as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (

http://www.fws.gov/endangered

), or from our Raleigh Ecological Services Field Office (see

FOR FURTHER INFORMATION CONTACT

).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations,

businesses, and private landowners. Examples of recovery actions include habitat restoration (

e.g.,

restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of North Carolina will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Carolina madtom and Neuse River waterdog. Information on our grant programs that are available to aid species recovery can be found at:

http://www.fws.gov/grants.

Please let us know if you are interested in participating in recovery efforts for the Carolina madtom and Neuse River waterdog. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see

FOR FURTHER INFORMATION CONTACT

).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph may include, but are not limited to, management and any other landscape-altering activities on Federal lands administered by the Service, U.S. Forest Service, and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251

et seq.

) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.

Carolina Madtom

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the

Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the listed species. At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the Carolina madtom occurs in a variety of habitat conditions across its range and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

(1) Unauthorized handling or collecting of the species;

(2) Destruction/alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or diversion or alteration of surface or ground water flow into or out of the wetland (

i.e.,

due to roads, impoundments, discharge pipes, stormwater detention basins, etc.);

(3) Activities that result in direct or indirect destruction of riparian habitat;

(4) Modification of the channel or water flow of any stream or removal or destruction of emergent aquatic vegetation in any body of water in which the Carolina madtom is known to occur;

(5) Discharge of chemicals or fill material into any waters in which the Carolina madtom is known to occur; and

(6) Pesticide applications in violation of label restrictions.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Raleigh Ecological Services Field Office (see

FOR FURTHER INFORMATION CONTACT

).

Neuse River Waterdog

It is our policy, as published in the

Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of a listed species. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act for the Neuse River Waterdog

Background

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency

(see

Webster

v.

Doe,

486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see

Alsea Valley Alliance

v.

Lautenbacher,

2007 U.S. Dist. Lexis 60203 (D. Or. 2007);

Washington Environmental Council

v.

National Marine Fisheries Service,

2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see

State of Louisiana

v.

Verity,

853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Exercising this authority under section 4(d), we have developed a rule that is designed to address the Neuse River waterdog's specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Neuse River waterdog. As discussed above under Summary of Biological Status and Threats, we have concluded that the Neuse River waterdog is likely to become in danger of extinction within the foreseeable future primarily due to habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity. The provisions of this 4(d) rule will promote conservation of the Neuse River waterdog by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Neuse River waterdog. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the Neuse River waterdog.

Provisions of the 4(d) Rule

This 4(d) rule will provide for the conservation of the Neuse River waterdog by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.

Import/export, possession, transportation, sale, and commerce are of concern for many aquatic amphibians, primarily because rare, strange-looking amphibians with frilly external gills (like the Neuse River waterdog) are highly sought after in the global pet trade. Regulating these activities will help protect the Neuse River waterdog from exploitation.

As discussed above under Summary of Biological Status and Threats, habitat degradation from stressors influencing water quality, water quantity, instream habitat, and habitat connectivity are affecting the status of the Neuse River waterdog. A range of activities have the potential to affect the Neuse River waterdog, including development, pollution, agricultural practices, land conversion, incompatible forest management, invasive species, dams and barriers, and energy production and mining. Regulating incidental take associated with these activities will help preserve the species' remaining populations, slow its rate of decline, and decrease synergistic, negative effects from other threats.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of th

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