Federal Register Vol. 81, No.194,

In SECY-16-0009, “Recommendations Resulting from the Integrated Prioritization and Re-Baselining of Agency Activities,” dated January 31, 2016 (ADAMS Accession No. ML16028A189), the NRC staff requested Commission approval to implement recommendations on work to be shed, de-prioritized, or performed with fewer resources. One of the items listed to be shed (i.e., discontinued) was a rulemaking titled, “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements,” that would have amended § 50.46 of title 10 of the Code of Federal Regulations (10 CFR), “Acceptance criteria for emergency core cooling systems (ECCS) for light-water nuclear power reactors” (50.46a ECCS rulemaking). In the Staff Requirements Memorandum (SRM) for SECY-16-0009, dated April 13, 2016 (ADAMS Accession No. ML16104A158), the Commission approved discontinuing the 50.46a ECCS rulemaking, and directed the NRC staff to publish a Federal Register notice to inform the public that the rule is being discontinued.

A discussion of the NRC's decision to discontinue the rulemaking on “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements” is provided in Section III of this document.

When the NRC staff identifies a rulemaking activity that can be discontinued, it will request, through a Commission paper, approval from the Commission to discontinue the rule. The Commission provides its decision by issuing an SRM. If the Commission approves discontinuing the rulemaking activity, the NRC staff will inform the public of the Commission's decision.

A rulemaking activity may be discontinued at any stage of the rulemaking process. For a rulemaking activity that has received public comments, the NRC staff will consider those comments before discontinuing it; however, the NRC staff will not provide individual comment responses.

After Commission approval to discontinue the rulemaking activity, the NRC staff will update the next edition of the Unified Agenda to indicate that the rulemaking is discontinued. The rulemaking activity will appear in the completed section of that edition of the Unified Agenda, but will not appear in subsequent editions.

In the SRM for SECY-02-0057,1 “Update to SECY-01-0133, `Fourth Status Report on Study of Risk-Informed Changes to the Technical Requirements of 10 CFR part 50 (Option 3) and Recommendations on Risk-Informed Changes to 10 CFR 50.46 (ECCS Acceptance Criteria),' ” dated March 31, 2003 (ADAMS Accession No. ML030910476), the Commission directed the NRC staff to prepare a proposed rule that would provide a risk-informed alternative maximum loss-of-coolant accident (LOCA) break size. On June 9, 2003, and July 24, 2003, the NRC staff held two public meetings 2 to obtain stakeholder feedback on this proposed rule. As a result of these interactions, the NRC staff found differences between the stated Commission objectives and industry stakeholder interests.

To reach a common understanding of the objectives of the rulemaking, the NRC staff requested additional Commission direction in SECY-04-0037, “Issues Related to Proposed Rulemaking to Risk-Inform Requirements Related to Large Break Loss-of-Coolant Accident (LOCA) Break Size and Plans for Rulemaking on LOCA with Coincident Loss-of-Offsite Power,” dated March 3, 2004 (ADAMS Accession No. ML040490133). The Commission directed the NRC staff in the SRM for SECY-04-0037, dated July 1, 2004 (ADAMS Accession No. ML041830412), to determine an appropriate risk-informed alternative break size and remove breaks larger than this size from the design-basis event category.

In SECY-05-0052, “Proposed Rulemaking for `Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements,' ” dated March 29, 2005 (ADAMS Accession No. ML050480172), the NRC staff provided a proposed rule to the Commission for approval. In the SRM for SECY-05-0052, dated July 29, 2005 (ADAMS Accession No. ML052100416), the Commission approved publication of the proposed rule.

On November 7, 2005, the NRC published the proposed rule in the Federal Register (70 FR 67597). After evaluating the public comments, the NRC staff completed the draft final rule language.

On October 31 and November 1, 2006, the NRC staff met with the Advisory Committee on Reactor Safeguards (ACRS) to discuss the draft final rule. In a letter dated November 16, 2006 (ADAMS Accession No. ML063190465), the ACRS recommended that the NRC staff not issue the rule in its current form and suggested numerous changes, primarily to strengthen the assurance of defense-in-depth provided for large pipe breaks.

The NRC staff evaluated the ACRS recommendations and, in SECY-07-0082, “Rulemaking to Make Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements; 10 CFR 50.46a, `Alternative Acceptance Criteria for Emergency Core Cooling Systems for Light Water Nuclear Power Reactors,' ” dated May 16, 2007 (ADAMS Accession No. ML070180692), sought additional Commission direction on both the priority of the rule and the issues raised by the ACRS. In the SRM for SECY-07-0082, dated August 10, 2007 (ADAMS Accession No. ML072220595), the Commission approved the NRC staff's recommendations for a revised rule priority and an approach for addressing ACRS concerns and completing the final rule.

The NRC staff modified the rule by making numerous substantive changes in the draft final rule. The NRC published a supplemental proposed rule for public comment on August 10, 2009 (74 FR 40006). The NRC staff evaluated the public comments received on the supplemental proposed rule and prepared a revised draft final rule. The draft final rule language was made publicly available on May 12, 2010, in the rulemaking docket on www.regulations.gov (NRC-2004-0006). The NRC staff prepared the final draft rule and discussed it in meetings with the ACRS subcommittee and full committee on September 22 and October 7, 2010. The ACRS provided its views on the rule to the Commission in a letter dated October 20, 2010 (ADAMS Accession No. ML102850279).

In SECY-10-0161, “Final Rule: Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements (10 CFR 50.46(a)) (RIN 3150-AH29),” dated December 10, 2010 (ADAMS Accession No. ML102210460), the NRC staff submitted a final rulemaking package to the Commission for approval. The Commission's review of the final rule was suspended to address higher-priority issues associated with the March 2011 Fukushima Dai-ichi accident. On April 20, 2012, the NRC staff requested to withdraw the 50.46a ECCS final rule from Commission consideration so that the NRC staff could review the rule and ensure its compatibility with the ongoing regulatory framework activities under Recommendation 1 of the Fukushima Near-Term Task Force report (ADAMS Accession No. ML111861807). The Commission approved the NRC staff's request in the SRM for SECY-10-0161, dated April 26, 2012 (ADAMS Accession No. ML12117A121).

In SECY-16-0009, the NRC staff recommended that the 50.46a ECCS rulemaking be discontinued. Based on interactions with the nuclear industry, the NRC staff understood that there were concerns with the potential implementation burden of the rule. The NRC staff's Regulatory Analysis for the 50.46a ECCS final rule (ADAMS Accession No. ML103230250) discussed the comments submitted by the Boiling Water Reactor Owners Group which conveyed that it would be extremely difficult to evaluate the cost-benefit due to uncertainties about the true cost of adopting the 50.46a ECCS rule. Furthermore, at a public meeting on the Risk Management Regulatory Framework paper, certain industry representatives indicated that the industry would not be interested in implementing the final rule.

As explained in SECY-16-0009, this rule would be voluntary if issued, so licensees could choose to not implement the requirements. Therefore, the NRC staff believes that there is minimal adverse impact on the NRC's mission, principles, or values by discontinuing this rulemaking. In the SRM for SECY-16-0009, the Commission approved the NRC staff's recommendation to discontinue this rulemaking.

In summary, the NRC has decided not to proceed with this rulemaking activity because there is minimal adverse impact on our mission, principles, or values and the industry has indicated that there may not be much interest in implementing the final rule.

On February 6, 2002, Anthony R. Pietrangelo, on behalf of the Nuclear Energy Institute (NEI), filed PRM-50-75 requesting that the NRC amend 10 CFR 50.46 to allow licensees to use an alternative to the double-ended guillotine break of the largest pipe in the reactor coolant system (ADAMS Accession No. ML020630082). On April 8, 2002 (67 FR 16654), the NRC published a notice of receipt and request for public comment for PRM-50-75. The comment period closed on June 24, 2002, and the NRC received 18 comment letters (ADAMS Accession No. ML082460625). The NRC staff determined that the issues raised in PRM-50-75 were appropriate for consideration and, in fact, the issues were already being considered in the 50.46a ECCS rulemaking. On November 6, 2008, the NRC published a Federal Register document (73 FR 66000) stating that the NRC would address the substantive comments filed in PRM-50-75 as part of the 50.46a ECCS rulemaking. In SECY-16-0009, the staff recommended discontinuing the 50.46a ECCS rulemaking and stated that PRM-50-75 would be addressed by alternative means. The NRC will issue a separate Federal Register document to disposition PRM-50-75.

The NRC is no longer pursuing the “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements” rulemaking for the reasons discussed in this document. In the next edition of the Unified Agenda, the NRC will update the entry for this rulemaking and reference this document to indicate that the 50.46a ECCS rulemaking is no longer being pursued. This rulemaking activity will appear in the completed section of that edition of the Unified Agenda, but will not appear in subsequent editions. If the NRC decides to pursue a similar or related rulemaking in the future, it will inform the public through a new rulemaking entry in the Unified Agenda.

Throughout this document, “we”, “us” and “our” refer to the EPA.

Under section 109 of the Clean Air Act (CAA or “Act”), the EPA has established national ambient air quality standards (NAAQS or “standards”) for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established.

On July 1, 1987 (52 FR 24634), the EPA replaced the original standard for particulate matter, measured as total suspended particulate matter (TSP) (i.e., particles roughly 30 micrometers or less), with new standards that replaced TSP as the indicator for particulate matter with a new indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10).

On July 18, 1997 (62 FR 38652), the EPA revised the standards for particulate matter by establishing new standards for particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2.5). The EPA established primary and secondary annual and 24-hour standards for PM2.5.1 The annual primary and secondary standards were set at 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations, and the 24-hour primary and secondary standards were set at 65 μg/m3, based on the 3-year average of the 98th percentile of 24-hour PM2.5 concentrations at each monitoring site within an area. See 40 CFR 50.7. Collectively, we refer herein to the 1997 24-hour and annual PM2.5 NAAQS as the “1997 PM2.5 NAAQS” or “1997 PM2.5 standards.” 2 The EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5 concentrations above these levels.

Epidemiological studies have shown statistically significant correlations between elevated PM2.5 levels and premature mortality. Other important health effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), changes in lung function and increased respiratory symptoms. There is also new evidence for more subtle indicators of cardiovascular health. Individuals particularly sensitive to PM2.5 exposure include older adults, people with heart and lung disease, and children.3

PM2.5 can be emitted directly into the atmosphere as a solid or liquid particle (primary PM2.5 or direct PM2.5) or can be formed in the atmosphere as a result of various chemical reactions from precursor emissions of nitrogen oxides, sulfur oxides, volatile organic compounds, and ammonia (secondary PM2.5).4

Following promulgation of a new or revised NAAQS, the EPA is required under CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 5, 2005, the EPA published initial air quality designations for the 1997 annual and 24-hour PM2.5 NAAQS, using air quality monitoring data for the three-year periods of 2001-2003 and 2002-2004.5 These designations became effective April 5, 2005.6 The EPA designated the San Joaquin Valley area as nonattainment for both the 1997 annual PM2.5 standards and the 1997 24-hour PM2.5 standards.7

The San Joaquin Valley PM2.5 nonattainment area encompasses over 23,000 square miles and includes all or part of eight counties: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and the valley portion of Kern.8 The area is home to four million people and is the nation's leading agricultural region. Stretching over 250 miles from north to south and averaging 80 miles wide, it is partially enclosed by the Coast Mountain range to the west, the Tehachapi Mountains to the south, and the Sierra Nevada range to the east.

Under state law, the California Air Resources Board (CARB or “State”) is the Governor's designee for adoption and submittal of the state implementation plan (SIP) and SIP revisions to the EPA in compliance with CAA requirements. CARB is also generally responsible under state law for the regulation of mobile emission sources. Local air pollution control districts are responsible for regulation of stationary emission sources. In the San Joaquin Valley, regional air quality plans are developed by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) with input from CARB and typically rely on both mobile source control measures for which CARB is responsible and stationary source control measures for which the District is responsible. Once the District adopts a regional air quality plan, the plan is submitted to CARB for adoption as part of the California SIP and submittal to the EPA.

Between 2007 and 2011, California made six SIP submissions to address nonattainment area planning requirements for the 1997 PM2.5 NAAQS in the San Joaquin Valley.9 We refer to these submissions collectively as the “2008 PM2.5 Plan.” On November 9, 2011, the EPA approved all elements of the 2008 PM2.5 Plan except for the contingency measures, which the EPA disapproved.10 As part of that action and pursuant to CAA section 172(a)(2)(A), the EPA granted California's request for an extension of the attainment date for the San Joaquin Valley area to April 5, 2015.11

A 2013 court decision by the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Natural Resources Defense Council v. EPA concluded that the EPA erred in implementing the 1997 PM2.5 standards solely pursuant to the general implementation requirements of subpart 1, without also considering the requirements specific to PM10 nonattainment areas in subpart 4, part D of title I of the CAA.12 Consistent with the NRDC decision, on June 2, 2014, the EPA classified all areas designated nonattainment for the 1997 or the 2006 PM2.5 standards as “Moderate” nonattainment areas under subpart 4.13 Because this rulemaking did not affect any action that the EPA had previously taken under section 110(k) of the Act on a SIP for a PM2.5 nonattainment area, the April 5, 2015 attainment date that the EPA had approved for the San Joaquin Valley area in November 2011 remained in effect.14

On April 7, 2015, the EPA reclassified the San Joaquin Valley area as a “Serious” PM2.5 nonattainment area under subpart 4, based on the EPA's determination that the area could not practicably attain the 1997 PM2.5 standards by the April 5, 2015 attainment date.15 This reclassification was based upon the EPA's evaluation of ambient air quality data from the 2003-2014 period, including the 2012-2014 design value, which indicated that it was not practicable for certain monitoring sites within the San Joaquin Valley area to show PM2.5 design values at or below the level of the 1997 PM2.5 NAAQS by April 5, 2015.16

As a consequence of reclassification as a Serious PM2.5 nonattainment area, the San Joaquin Valley area became subject to a new attainment date under CAA section 188(c)(2) and the requirement to submit a Serious area plan that satisfies the requirements of part D of title I of the Act, including the requirements of subpart 4, for the 1997 PM2.5 NAAQS.17 Under subpart 4, the attainment date for an area classified as Serious is as expeditiously as practicable, but no later than the end of the tenth calendar year following designation. As explained in the EPA's final reclassification action, the Serious area plan for the San Joaquin Valley must include provisions to assure that the best available control measures for the control of direct PM2.5 and PM2.5 precursors shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B)), and a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2015, which is the latest permissible attainment date under CAA section 188(c)(2).18

Given the December 31, 2015 outermost attainment deadline for the San Joaquin Valley area under section 188(c)(2), the EPA noted its expectation that the State would adopt and submit a Serious area plan for the San Joaquin Valley well before the statutory SIP submission deadlines in CAA section 189(b)(2).19 The EPA also noted that, in light of the available ambient air quality data and the short amount of time available before the December 31, 2015 attainment date, California could choose to submit a request for an extension of the Serious area attainment date pursuant to CAA section 188(e) simultaneously with its submission of a Serious area plan for the area.20

California submitted its 1997 PM2.5 Serious area plan for the San Joaquin Valley in two submittals dated June 25, 2015 and August 13, 2015, including a request under section 188(e) to extend the attainment date for the 1997 24-hour PM2.5 NAAQS by three years (to December 31, 2018) and to extend the attainment date for the 1997 annual PM2.5 NAAQS by five years (to December 31, 2020). The EPA proposed to approve most of the San Joaquin Valley 1997 PM2.5 Serious area plan, to conditionally approve the Plan's quantitative milestones, to disapprove the plan's contingency measures, and to grant the requested attainment date extensions.21 We received adverse comments on our proposal on several aspects of the plan and its control measures. Upon further evaluation of the plan and after consideration of the comments, the EPA decided it could no longer support an action to extend the attainment date for the San Joaquin Valley Serious PM2.5 nonattainment area for the 1997 PM2.5 NAAQS.22

Since the EPA has not approved the requested attainment date extensions, the applicable attainment date remains December 31, 2015 for the San Joaquin Valley with respect to the 1997 PM2.5 NAAQS. As discussed in section II of this proposed rule, the EPA must determine, based on air quality data as of the attainment date, whether an area attained the applicable NAAQS by its attainment date.

Sections 179(c)(1) and 188(b)(2) of the CAA require the EPA to determine whether a PM2.5 nonattainment area attained the applicable PM2.5 standards by the applicable attainment date, based on the area's air quality as of the attainment date.

A determination of whether an area's air quality meets the PM2.5 standards is generally based upon the most recent three years of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in a nonattainment area and entered into the EPA's Air Quality System (AQS) database. Data from ambient air monitors operated by state/local agencies in compliance with the EPA monitoring requirements must be submitted to AQS. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, the EPA relies primarily on data in AQS when determining the attainment status of areas. See 40 CFR 50.7; 40 CFR part 50, Appendix L; 40 CFR part 53; 40 CFR part 58, and 40 CFR part 58, Appendices A, C, D, and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, Appendix N.

Under EPA regulations in 40 CFR part 50, § 50.7 and in accordance with Appendix N, the 1997 annual PM2.5 standards are met when the design value is less than or equal to 15.0 µg/m3 (based on the rounding convention in 40 CFR part 50, Appendix N) at each eligible monitoring site within the area.23 Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data.

Under EPA regulations in 40 CFR part 50, section 50.7 and in accordance with Appendix N, the 1997 24-hour PM2.5 standards are met when the design value is less than or equal to 65 µg/m3 (based on the rounding convention in 40 CFR part 50, Appendix N) at each eligible monitoring site within the area.24 Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data.

Section 110(a)(2)(B)(i) of the CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. Our monitoring requirements are specified by regulation in 40 CFR part 58. These requirements are applicable to state, and where delegated, local air monitoring agencies that operate criteria pollutant monitors. Our regulations in 40 CFR part 58 establish specific requirements for operating air quality surveillance networks to measure ambient concentrations of PM2.5, including requirements for measurement methods, network design, quality assurance procedures, and in the case of large urban areas, the minimum number of monitoring sites designated as SLAMS.

In section 4.7 of Appendix D to 40 CFR part 58, the EPA specifies minimum monitoring requirements for PM2.5 to operate at SLAMS. SLAMS produce data that are eligible for comparison with the NAAQS, and therefore, the monitor must be an approved federal reference method (FRM), federal equivalent method (FEM), or approved regional method (ARM). The minimum number of SLAMS required is described in section 4.7.1, and can be met by either filter-based or continuous FRMs or FEMs. The monitoring regulations also provide that each core-based statistical area must operate a minimum number of PM2.5 continuous monitors (section 4.7.2); however, this requirement can be met by either an FEM or a non-FEM continuous monitor, and the continuous monitors can be located with other SLAMS or at a different location. Consequently, the monitoring requirements for PM2.5 can be met with filter-based FRMs/FEMs, continuous FEMs, continuous non-FEMs, or a combination of monitors at each required SLAMS.

Under 40 CFR 58.10, states are required to submit Annual Network Plans for ambient air monitoring networks for approval by the EPA. Within the San Joaquin Valley, CARB and the District are the agencies responsible for assuring that the area meets air quality monitoring requirements. The District submits annual monitoring network plans to the EPA that describe the various monitoring sites operated by the District as well as those operated by CARB within the San Joaquin Valley. These plans discuss the status of the air monitoring network, as required under 40 CFR 58.10. The most recent plan submitted by the District is the 2015 Air Monitoring Network Plan, dated August 28, 2015. The EPA regularly reviews these Annual Network Plans for compliance with the applicable reporting requirements in 40 CFR part 58. On December 28, 2015, the EPA approved those portions of the 2015 Air Monitoring Network Plan that pertain to the adequacy of the network for PM2.5 monitoring purposes.25

During the 2013-2015 period, PM2.5 ambient concentration data that is eligible for use in determining whether an area has attained the PM2.5 NAAQS were collected at a total of 17 sites within the San Joaquin Valley: four sites in Fresno County; three sites in Kern County; two sites each in Kings, Merced, San Joaquin, and Stanislaus counties; and one site each in Madera and Tulare counties. The District operates 10 of these sites while CARB operates seven of the sites. Fourteen of the sites are designated SLAMS for PM2.5. Three of the sites are designated as special purpose monitors (i.e., the Merced (Coffee Street), Tranquility, and Hanford sites), but the PM2.5 data collected there are eligible for use in determining PM2.5 NAAQS compliance due to the duration of monitoring at the site and the use of FRM or FEM monitors consistent with EPA quality assurance requirements and siting criteria.26 The primary monitors are FRMs at 11 of the 17 sites and beta attenuation monitor FEMs at six of the 17 sites.

Based on our review of the PM2.5 monitoring network as summarized above, we find that monitoring network in the San Joaquin Valley is adequate for the purpose of collecting ambient PM2.5 concentration data for use in determining whether the San Joaquin Valley attained the 1997 PM2.5 NAAQS by the December 31, 2015 attainment date.

Under 40 CFR 58.15, monitoring agencies must certify, on an annual basis, data collected at all SLAMS and at all FRM, FEM, and ARM SPM stations that meet EPA quality assurance requirements. In doing so, monitoring agencies must certify that the previous year of ambient concentration and quality assurance data are completely submitted to AQS and that the ambient concentration data are accurate to the best of her or his knowledge. CARB annually certifies that the data the agency submits to AQS are quality assured, including data collected by CARB at monitoring sites in the San Joaquin Valley.27 SJVUAPCD does the same for data submitted to AQS from monitoring sites operated by the District.28

As noted above, CAA sections 179(c)(1) and 188(b)(2) require the EPA to determine whether a PM2.5 nonattainment area attained the applicable PM2.5 standards by the applicable attainment date, based on the area's air quality “as of the attainment date.” For the San Joaquin Valley, for reasons discussed above, the applicable attainment date is December 31, 2015 with respect to the 1997 PM2.5 NAAQS. Because determinations of PM2.5 NAAQS compliance, in accordance with 40 CFR part 50, Appendix N, are based on three calendar years of data, to determine the San Joaquin Valley's air quality as of December 31, 2015, we must review the data collected during the three-year period immediately preceding December 31, 2015, i.e., January 1, 2013-December 31, 2015.

Thus, we verified that the data for the 2013-2015 period have been certified by the relevant monitoring agencies, and then we reviewed the data for completeness. We note above the most recent annual data certifications from CARB and the District. With respect to completeness, we determined that the data collected by CARB and the District meet the quarterly completeness criterion for all 12 quarters of the three-year period at most of the PM2.5 monitoring sites in the San Joaquin Valley.

More specifically, among the 17 PM2.5 monitoring sites from which regulatory data are available, the data from four of the sites did not meet the 75% completeness criterion (for each quarter); however, the data from all but one site (Bakersfield—Golden State Highway) are sufficient nonetheless to produce a valid design value for either the annual PM2.5 NAAQS or the 24-hour PM2.5 NAAQS pursuant to the rules governing design value validity in 40 CFR part 50, Appendix N, sections 4.1 and 4.2. We note that monitors with incomplete data in one or more quarters may still produce valid design values if the conditions for applying one of the EPA's data substitution tests are met.29

Table 1 and Table 2 show the annual and 24-hour PM2.5 design values, respectively, at each of the 17 monitoring sites within the San Joaquin Valley nonattainment area for the relevant three-year period (2013-2015). The tables show that the annual PM2.5 design values for the 2013-2015 period are greater than 15.0 µg/m3 at eight of the sites and that the 24-hour PM2.5 design values are greater than 65 µg/m3 at four of the sites.

The data in Tables 1 and 2 show that a number of sites in central and southern San Joaquin Valley failed to attain the 1997 annual PM2.5 NAAQS by December 31, 2015 and that the geographic extent of failure to attain the 1997 24-hour PM2.5 NAAQS was more limited than for the annual standard in that only sites in southwestern San Joaquin Valley failed to attain the 24-hour standard. The 2015 annual design value site, i.e., the site with the highest design value based on 2013-2015 data, is the Corcoran site with a 2015 annual PM2.5 design value of 22.2 µg/m3. With respect to the 24-hour average, the 2015 design value site is the Corcoran site with a 24-hour PM2.5 design value of 79 µg/m3.

For an area to attain the 1997 PM2.5 NAAQS by December 31, 2015, the 2015 design value (reflecting data from 2013-2015) at each eligible monitoring site must be equal to or less than 15.0 µg/m3 for the annual standard and 65 µg/m3 for the 24-hour standard. Tables 1 and 2 show that the 2015 design values at a number of sites in the San Joaquin Valley are greater than those values. Therefore, based on quality-assured and certified data for 2013-2015, we are proposing to determine that the San Joaquin Valley failed to attain the 1997 annual and 24-hour PM2.5 standards by the December 31, 2015 attainment date.

Lastly, we note that, under our regulations at 40 CFR 50.14, a monitoring agency may request the EPA to exclude data showing exceedances or violations of the standard that are directly due to an exceptional event from use in determinations by demonstrating that such event caused a specific air pollution concentration at a particular air quality monitoring location. A monitoring agency notifies the EPA of its intent to request exclusion of concentrations by placing a “flag” in the appropriate field for the data of concern in AQS.

For PM2.5 ambient data collected from 2013-2015, the District “flagged” one 24-hour concentration at the Bakersfield (Planz Road) site and two 24-hour concentrations at the Bakersfield (California Avenue) site due to high winds. The District also flagged twenty-four 24-hour concentrations at each of the Madera and Merced (Coffee Avenue) sites due to wildfire.30

The State has not requested concurrence on the flagged data, and thus the data are not excluded from the set of data used to determine whether the standard was attained. However, even if all of the flagged data were to be excluded, i.e., even if the EPA had concurred on the data as qualifying as exceptional events, the design values reported in Tables 1 and 2, though slightly lower at certain sites, would remain well above the NAAQS.31

For instance, the 2015 annual PM2.5 design value at the Bakersfield (Planz Road) monitoring site would be 20.4 μg/m3 instead of 20.8 μg/m3 if all of the flagged data were excluded. Thus, it would still fail to attain the applicable standard of 15.0 μg/m3. Similarly, the 2015 24-hour PM2.5 design value at the same site would be 72 μg/m3 instead of 77 μg/m3 if all of the flagged data were excluded, thus also failing to attain the applicable standard of 65 μg/m3. Furthermore, several additional sites, for which the District has not flagged exceptional events, exceed the 1997 PM2.5 NAAQS based on 2015 annual PM2.5 design values (i.e., Fresno-Garland, Clovis, Corcoran, Hanford, and Visalia) and 2015 24-hour design values (i.e., Corcoran and Hanford).

The consequences for a Serious PM2.5 nonattainment area for failing to attain the standards by the applicable attainment date are set forth in CAA sections 179(d) and 189(d). Under section 179(d), a state must submit a SIP revision for the area meeting the requirements of CAA section 110 and 172, the latter of which requires, among other elements, a demonstration of attainment and reasonable further progress, and contingency measures. CAA section 189(d) requires that the SIP revision must provide for attainment of the standards and, from the date of the SIP submittal until attainment, for an annual reduction in the emissions of PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent of the amount of such emissions as reported in the most recent inventory prepared for such area.32 The requirement for a new attainment demonstration under CAA section 189(d) also triggers the requirement for the SIP revision for quantitative milestones under section 189(c) that are to be achieved every three years until redesignation to attainment.

The new attainment date is set by CAA section 179(d)(3), which relies upon section 172(a)(2) to establish a new attainment date but with a different starting point than provided in section 172(a)(2). Under section 179(d)(3), the new attainment date is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the date of the final determination of failure to attain, except that the EPA may extend the attainment date for a period no greater than 10 years from the final determination, considering the severity of nonattainment and the availability and feasibility of pollution control measures. Lastly, section 179(d) requires that the state submit the required SIP revision within 12 months after the applicable attainment date. In this case, if the EPA finalizes the proposed rule, then the State of California will be required to submit a SIP revision that complies with sections 179(d) and 189(d) within 12 months of December 31, 2015, i.e., by December 31, 2016.

Under CAA sections 179(c)(1) and 188(b)(2), the EPA proposes to determine that the San Joaquin Valley “Serious” PM2.5 nonattainment area has failed to attain the 1997 annual and 24-hour PM2.5 standards by the applicable attainment date of December 31, 2015. If finalized, the State of California will be required under CAA sections 179(d) and 189(d) to submit a revision to the SIP for the San Joaquin Valley that, among other elements, demonstrates expeditious attainment of the standards within the time period provided under CAA section 179(d) and that provides for annual reduction in the emissions of PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent until attainment. The SIP revision required under CAA sections 179(d) and 189(d) would be due for submittal to the EPA no later than December 31, 2016.

The EPA is soliciting public comments on the issues discussed in this document. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.

This proposed action in and of itself establishes no new requirements; it merely documents that air quality in the San Joaquin Valley did not meet the 1997 PM2.5 standards by the CAA deadline. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian Tribes and thus this proposed action will not impose substantial direct costs on Tribal governments or preempt Tribal law. Nonetheless, the EPA has notified the Tribes within the San Joaquin Valley PM2.5 nonattainment area of the proposed action.

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 proposed rule in the Federal Register and make a determination on our proposal within 1 year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations of critical habitat can only be completed by issuing a rule. We have determined that designating critical habitat for the Louisiana pinesnake is prudent, but not determinable at this time, because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking, such as information on areas to be proposed for designation and the potential economic impacts associated with designation of these areas.

This rule proposes to list the Louisiana pinesnake as a threatened species. The Louisiana pinesnake is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule had been, until now, precluded by other higher priority listing activities.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Louisiana pinesnake is threatened primarily because of the past and continuing loss, degradation, and fragmentation of habitat in association with incompatible silviculture, fire suppression, road and right-of-way construction, and urbanization (Factor A), and the magnified vulnerability of all the small, isolated, genetically compromised extant populations to mortality from vehicle strikes and from predators (Factors C and E).

We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on this listing proposal.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The Louisiana pinesnake's biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Information on activities that might warrant being exempted under section 4(d) of the Act (16 U.S.C. 1531 et seq.). The Service is considering proposing such measures before the final listing determination is published, and will evaluate ideas provided by the public in considering whether such exemptions are necessary and advisable for the conservation of the Louisiana pinesnake.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Louisiana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal.

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking the expert opinions of six appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in Louisiana pinesnake biology, habitat, physical or biological factors, etc., and they are currently reviewing the status information in the proposed rule, which will inform our determination. We invite comment from the peer reviewers during this public comment period.

We identified the Louisiana pinesnake (as Pituophis melanoleucus ruthveni) as a Category 2 candidate species in the December 30, 1982, Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454). Category 2 candidates were defined as taxa for which we had information that proposed listing was possibly appropriate, but for which substantial data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in subsequent annual candidate notices of review (CNORs) (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Louisiana pinesnake was no longer a candidate species.

We added the Louisiana pinesnake (as Pituophis melanoleucus) to the candidate list in 1999 (64 FR 57534, October 25, 1999). Currently, candidate species are defined as plants and animals for which the Service has sufficient information on their biological status and threats to propose them as endangered or threatened under the Act, but for which development of a listing rule is precluded by other higher priority listing actions. The Louisiana pinesnake was assigned a listing priority number (LPN) of 5, based on the immediacy and magnitude of threats to this species.

In the October 30, 2001, CNOR (66 FR 54808), we recognized the Louisiana pinesnake as Pituophis ruthveni and retained an LPN of 5 for the species. The Louisiana pinesnake was included with an LPN of 5 in our subsequent annual CNORs through 2005 (67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005). In 2006, we changed the Louisiana pinesnake's LPN to 8, based on threats of moderate to low magnitude that were imminent (71 FR 53756; September 12, 2006). In 2007, we again changed the Louisiana pinesnake's LPN, reassigning it an LPN of 5, based on non-imminent, high-magnitude threats (72 FR 69034; December 6, 2007). The Louisiana pinesnake was included with an LPN of 5 in our subsequent annual CNORs through 2015 (73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015).

In August 2000, the Service received a petition to list the Louisiana pinesnake as endangered under the Act. No new information was provided in the petition, and we had already found the species warranted listing, so no further action was taken on the petition.

On May 10, 2011, the Service announced a work plan to restore biological priorities and certainty to the Service's listing process. As part of an agreement with one of the agency's most frequent plaintiffs, the Service filed the work plan with the U.S. District Court for the District of Columbia. The work plan enabled the Service to, over a period of 6 years, systematically review and address the needs of more than 250 species listed within the 2010 CNOR, including the Louisiana pinesnake, to determine if these species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. This work plan enabled the Service to again prioritize its workload based on the needs of candidate species, while also providing State wildlife agencies, stakeholders, and other partners with clarity and certainty about when listing determinations will be made. On July 12, 2011, the Service reached an agreement with another frequent plaintiff group and further strengthened the work plan, which allowed the agency to focus its resources on the species most in need of protection under the Act. These agreements were approved on September 9, 2011. Therefore, the timing of this proposed listing is, in part, an outcome of the work plan.

Pinesnakes (genus Pituophis) are large, short-tailed, non-venomous, powerful constricting snakes with keeled scales, a single anal plate (the scale covering the cloaca), and disproportionately small heads (Conant and Collins 1991, pp. 201-202). Their snouts are pointed, and they have a large rostral (tip of the snout) scale, both presumably contributing to the snakes good burrowing ability. The Louisiana pinesnake (P. ruthveni) has a buff to yellowish background color with dark brown to russet dorsal blotches covering its total length (Vandeventer and Young 1989, p. 35; Conant and Collins 1991, p. 203). The belly of the Louisiana pinesnake is unmarked or boldly patterned with black markings. It is variable in both coloration and pattern, but a characteristic feature is that the body markings on its back are always conspicuously different at opposite ends of its body. Blotches run together near the head, often obscuring the background color, and then become more separate and well-defined towards the tail. Typically, there are no noticeable head markings, although rarely a light bar or stripe may occur behind the eye. The length of adult Louisiana pinesnakes ranges from 48 to 56 inches (in) (122 to 142 centimeters (cm)) (Conant and Collins 1991, p. 203). The largest reported specimen was 5.8 feet (ft) (178 cm) long (Davis 1971, p. 1; Conant and Collins 1991, p. 203).

The Louisiana pinesnake is a member of the Class Reptilia, Order Squamata, Suborder Serpentes, and Family Colubridae. Stull (1929, pp. 2-3) formally described the Louisiana pinesnake as a pinesnake subspecies (P. melanoleucus ruthveni) based on two specimens taken in Rapides Parish, Louisiana. Reichling (1995, p. 192) reassessed this snake's taxonomic status and concluded that the Louisiana pinesnake was geographically isolated and phenotypically distinct, and thus a valid evolutionary species. The Louisiana pinesnake has subsequently been accepted as a full species, P. ruthveni (Crother 2000, p. 69; Rodriguez-Robles and Jesus-Escobar 2000, p. 46; Collins and Taggert 2002, p. 33). We have carefully reviewed this taxonomic research for the Louisiana pinesnake and conclude that the species is a valid taxon.

Louisiana pinesnakes are known from and associated with a disjunct portion of the historic longleaf-dominated (hereafter, “longleaf”) pine (Pinus palustris) ecosystem that existed in west-central Louisiana and east Texas (Reichling 1995, p. 186). Longleaf pine forests (which are dominated by longleaf, but may also contain other overstory species such as loblolly and shortleaf pine and sparse hardwoods) have the most species-rich herpetofaunal community compared to other similarly sized and located pine forest habitat in North America, and harbor more species that are specialists of that habitat (Guyer and Bailey 1993, p. 142). Early accounts of Louisiana pinesnake collections indicate a strong affinity for longleaf pine habitat, as most reports indicated the snakes were collected within or adjacent to longleaf pine stands (Fugler 1955, p. 24; Conant 1956, pp. 5, 19, 24; Walker 1965, p. 160; Thomas et al 1976, p. 253; Jennings and Fritts 1983, p. 3; Wright and Wright 1994, pp. 622, 623; Jordan 1998, p. 11). The vast majority of natural longleaf pine habitat has been lost or degraded due to conversion to extensive pine plantations and suppression of the historic fire regime. As a result, current Louisiana pinesnake habitat generally consists of sandy, well-drained soils in open canopy pine forest, which may include species such as longleaf, shortleaf, slash, or loblolly pines with a sparse midstory, and well-developed herbaceous ground cover dominated by grasses and forbs (Young and Vandeventer 1988, p. 204; Rudolph and Burgdorf 1997, p. 117).

Abundant ground-layer herbaceous vegetation is important for the Louisiana pinesnake's primary prey, the Bairds pocket gopher (Geomys breviceps), which constitutes 75 percent of the Louisiana pinesnake's estimated total prey biomass (Rudolph et al 2012, p. 243). Baird's pocket gopher depends mostly on various plant parts of a variety of herbaceous species (Pennoyer 1932, pp. 128-129; Sulentich et al. 1991, p. 3). Pocket gopher abundance is associated with a low density of trees, an open canopy, and a small amount of woody vegetation cover, which allow greater sunlight and more herbaceous forage for pocket gophers (Himes 1998, p. 43; Melder and Cooper 2015, p. 75).

Bairds pocket gophers also create the burrow systems in which Louisiana pinesnakes are most frequently found (Rudolph and Conner 1996, p. 2; Rudolph and Burgdorf 1997, p. 117; Himes 1998, p. 42; Rudolph et al. 1998, p. 146; Rudolph et al. 2002, p. 62; Himes et al. 2006, p. 107), and the snakes use these burrow systems as nocturnal refugia and hibernacula, and to escape from fire (Rudolph and Burgdorf 1997, p. 117; Rudolph et al. 1998, p. 147; Ealy et al. 2004, p. 386; Rudolph et al. 2007 p. 561; Pierce et al. 2014, p. 140). From 74 percent to greater than 80 percent of radio-tagged Louisiana pinesnake relocations have been underground in pocket gopher burrow systems (Ealy et al. 2004, p. 389; Himes et al. 2006, p. 107). In Louisiana, habitat selection by Louisiana pinesnakes seems to be determined by the abundance and distribution of pocket gophers and their burrow systems (Rudolph and Burgdorf 1997, p. 117). Active Louisiana pinesnakes occasionally use debris, logs, and low vegetation as temporary surface shelters (Rudolph and Burgdorf 1997, p. 117; Himes 1998, p. 26; Ealy et al. 2004, p. 386); however, most Louisiana pinesnakes disturbed on the surface retreat to nearby burrows (Rudolph and Burgdorf 1997, p. 117). Louisiana pinesnakes also minimally use decayed or burned stumps, or nine-banded armadillo (Dasypus novemcinctus) burrows as underground refugia (Ealy et al. 2004, p. 389).

Baird's pocket gophers appear to prefer well-drained, sandy soils with low clay content in the topsoil (Davis et al. 1938, p. 414). Whether by choice for burrowing efficiency or in pursuit of Baird's pocket gophers (or likely both), Louisiana pinesnakes also occur most often in sandy soils (Wagner et al. 2014, p. 152). In Wagner et al.'s study, modelling of Louisiana pinesnake habitat revealed that in addition to suitable forest structure and herbaceous vegetation, specific soil characteristics are an important determinant of Louisiana pinesnake inhabitance. Wagner et al. (2014, entire) developed a Landscape-scaled Resource Selection Functions Model of Potential Louisiana Pinesnake Habitat (LRSF-Model) using available Louisiana pinesnake location data with county and parish soil survey data as independent variables to more accurately identify the percentage of certain soil characteristics that were selected from what was available in the landscape, indicating preference. The snakes were found to prefer soils with high sand content and a low water table (Wagner et al. 2014, p. 152). In a separate modelling study, using essentially the same dataset but a different study method, Duran (2010, p. 11) also found that Louisiana pinesnakes prefer sandy, well-drained soils, confirming the validity of the LRSF-Model, originally proposed in 2009 (Wagner et al. 2009, entire).

The fire-climax park-like conditions of typical Louisiana pinesnake habitat are created and maintained by recurrent, low-intensity ground fires that occur approximately every 3 to 5 years. In the absence of recurrent fire, growth of woody midstory species is increased, and conditions supporting the Louisiana pinesnake's prey species are lost due to shading of herbaceous vegetation. Using radio-telemetry in Bienville Parish, Louisiana, Himes et al. (2006, p. 107) recorded wild-caught (i.e., not captive-bred) Louisiana pinesnakes (nine adults and one juvenile) most frequently in pine forests (56 percent), followed by pine plantation (23 percent) and clear-cuts (9 percent). It should be noted, however, that across all sites, snakes appeared to select areas with few large trees (7 to 9 trees per plot) that were approximately 0.1 ac (0.04 ha) in size, resulting in less canopy closure and more light penetration, which supports increased understory vegetation growth and therefore more pocket gophers (Himes et al. 2006, pp. 108-110; 113) regardless of the type of wooded land. In a 2-year (2004-2005) trapping study of three locations (two were mixed long leaf/loblolly pine stands being managed specifically for Louisiana pinesnake habitat, and one was a loblolly pine plantation managed for fiber tree production), Reichling et al. (2008, p. 4) found the same number of Louisiana pinesnakes in the pine plantation (n=2) as one of the mixed pine stands managed for Louisiana pinesnake (n=2); however, of all the three trapping locations studied, the greatest number of snakes was found in the second mixed pine stand managed for Louisiana pinesnake (n=8). In addition, the snakes found in pine plantation conditions by Reichling et al. appeared thin or emaciated (indicating they probably had not fed recently), and were not recaptured in that habitat, which may have indicated they were moving through these sites (Reichling et al. 2008, pp. 9, 14). Further trapping at the same sites since the study has produced 17 and 9 more Louisiana pinesnakes for the first and second beneficially managed stands, respectively, and only 3 more for the plantation site (Pierce 2015, unpub. data).

Louisiana pinesnakes appear to be most active March through May and September through November (especially November), and least active December through February and during the summer (especially August) (Himes 1998, p. 12). During the winter, Louisiana pinesnakes use Baird's pocket gopher burrows as hibernacula (Rudolph et al. 2007 p. 561; Pierce et al. 2014, p. 140). In a study conducted by Pierce et al. (2014, pp. 140, 142), the species did not use burrows communally, and they did not exhibit fidelity to hibernacula sites in successive years. Louisiana pinesnakes observed in east Texas appear to be semi-fossorial and essentially diurnal, and were also relatively immobile (i.e., moved less than 33 ft (10 meters (m)) on 54.5 percent of days monitored (Ealy et al. 2004, p. 391). In one study, they spent, on average, 59 percent of daylight hours (sunrise to sunset) below ground, and moved an average of 541 ft (163 m) per day (Ealy et al. 2004, p. 390). Adult males in a Louisiana study by Himes et al. moved an average of 495 ft (150 m) daily (longest = 3,802 ft (1,159 m)), adult females 348 ft (106 m), and juveniles 112 ft (34 m) (Himes 1998, p. 18). Himes et al. (2006, p. 107) documented an average home range size of 82 ac (33.2 ha) (range 16 to 267 ac (6.5 to 108 ha)) for the Louisiana pinesnake. Himes et al. also found that adult males had larger average home ranges (145 acres (ac) (58.7 hectares (ha))) than females (25 ac (14 ha)) and juveniles (13 ac (5.5 ha)) (Himes 1998, p. 18).

Baird's pocket gopher is the primary prey of the Louisiana pinesnake (Rudolph et al. 2002, p. 58), comprising an estimated 53 percent of available individual prey records (75 percent of total prey biomass) (Rudolph et al. 2012, p. 243). The Louisiana pinesnake exhibits specialized prey handling behavior for the burrow-dwelling pocket gopher not common among constricting snake species (Rudolph et al. 2002, pp. 59-61). The Louisiana pinesnake is also known to eat eastern moles (Scalopus aquaticus), cotton rats (Sigmodon hispidus), deer mice (Peromyscus sp.), harvest mice (Reithrodontomys sp.), and turtle (probably Trachemys scripta) eggs (Rudolph et al. 2002, p. 59; Rudolph et al. 2012, p. 244).

Louisiana pinesnake sexual maturity is attained at an approximate length of 4 ft (120 cm) and an age of approximately 3 years (Himes et al. 2002, p. 686). The Louisiana pinesnake is an egg-layer (oviparous), with a gestation period of about 21 days (Reichling 1988, p. 77), followed by 60 days of incubation. Having the smallest clutch size (three to five) of any North American colubrid snake, the Louisiana pinesnake exhibits a remarkably low reproductive rate (Reichling 1990, p. 221). However, the Louisiana pinesnake produces the largest eggs (generally 12 cm (5 in) long and 5 cm (2 in) wide) of any U.S. snake (Reichling 1990, p. 221). It also produces the largest hatchlings reported for any North American snake, ranging 18 to 22 in (45 to 55 cm) in length, and up to 3.77 ounces (oz) (107 grams (g)) in weight (Reichling 1990, p. 221). No Louisiana pinesnake nests have been located in the wild. Captive Louisiana pinesnakes can live over 30 years, but females have not reproduced beyond the age of 18 years (Reichling and Schad 2010, p. 5).

The Louisiana pinesnake historically occurred in portions of northwest and west-central Louisiana and extreme east-central Texas (Conant 1956, p. 19). This area coincides with an isolated, and the most westerly, occurrence of the longleaf pine ecosystem and is situated west of the Mississippi River. Most of the sandy, longleaf pine-dominated savannahs historically inhabited by the Louisiana pinesnake had been lost by the mid-1930s (Bridges and Orzell 1989, p. 246; Frost 1993, p. 30). After virgin longleaf pine was cut, it rarely regenerated naturally. In some parts of the Southeast, free-ranging hogs depredated the longleaf pine seedlings, and fire suppression allowed shrubs, hardwoods, and loblolly pine to dominate (Frost 1993, pp. 34-36). The naturally maintained open structure and abundant herbaceous vegetation characteristic of the historical longleaf pine forests was diminished or lost, and, therefore, it is likely that undocumented populations of this species historically occurred but were lost before 1930.

The U.S. Forest Service (USFS), Southern Research Station (SRS), Wildlife Habitat and Silviculture Laboratory in Nacogdoches, Texas, has compiled and maintains a historical records database of all known Louisiana pinesnake locations (excluding telemetry data). According to that database, 267 occurrence records of 235 individual Louisiana pinesnakes have been verified from 1927 through December 21, 2015 (excluding reintroductions), all from Louisiana and Texas (Pierce 2015, unpub. data). By comparison, for the Florida pinesnake (Pituophis melanoleucus mugitus), a species with a four State range (Ernst and Ernst 2003, p. 281), there are 874 records of occurrence through 2015 in the State of Florida alone (Enge 2016, pers. comm.). Similarly, there are approximately 395 total records of black pinesnakes (Pituophis melanoleucus lodingi) since 1932 (Hinderliter 2016, pers.comm.).

Based on the Louisiana pinesnake database, there are records from seven parishes in Louisiana (Beauregard, Bienville, Jackson, Natchitoches, Rapides, Sabine, and Vernon) and 11 counties in Texas (Angelina, Hardin, Jasper, Nacogdoches, Newton, Polk, Sabine, San Augustine, Trinity, Tyler, and Wood) (Figure 1). Previous Louisiana pinesnake reports that are not included in this database are: single records for Calcasieu and Jefferson Davis Parishes in Louisiana (Williams and Cordes 1996, p. 35), considered suspect (Pierce 2015, unpub. data; Thomas et al. 1976, pp. 253-254; Walls 2008, pers. comm.); a single record from Cherokee County, Texas, which was erroneous (Pierce 2009, pers. comm.); single records from Montgomery and Walker Counties in Texas reclassified as Pituophis catenifer (Pierce 2008, pers. comm.); two records from Rapides Parish, Louisiana, and one from Caldwell County, Texas, from the 1960s considered not verifiable (Reichling 2012, pers. comm.; Thomas et al. 1976, pp. 253-254).

Despite being primarily diurnal, the Louisiana pinesnake's apparent rarity, secretive nature, and preference for occupying pocket gopher burrow systems has made it difficult to generate extensive natural history information (Ealy et al. 2004, pp. 383-384). Trapping results are functions of trap location selection, trap success, and true presence or absence; thus trapping data only approximate Louisiana pinesnake use of an area, but are the best available estimate. Currently trapping is the only standardized and most effective known method for surveying Louisiana pinesnakes. While it is the most effective, it is also expensive and labor intensive. Trapping for Louisiana pinesnakes involves the use of multiple sets of drift fences with box traps in an area either known to be inhabited by Louisiana pinesnakes or that appears to have suitable habitat. Box and funnel traps, with and without drift fences, are effective in catching snakes similar in size, and related to the Louisiana pinesnake, including the bullsnake (Pituophis catenifer sayi), black pinesnake, Florida pinesnake, and northern pinesnake (Pituophis melanoleucus melanoleucus) (Burgdorf et al. 2005, p. 424; Fitch 1951, p. 80; Yager et al. 2005, p. 24; Zappalorti 2016, p. 7; Enge 2016, pers. comm.).

Since 1993, extensive Louisiana pinesnake trapping has been conducted at first near recent recorded occurrences of the species that appeared to be in suitable habitat, and then more broadly, in other locations of varying habitat conditions within the snake's historical range (Rudolph et al. 2006, p. 464) by the USFS, the U.S. Army, the Memphis Zoo, and the Louisiana Department of Wildlife and Fisheries (LDWF). Trapping has been conducted to provide animals for telemetry studies, to determine the effects of vehicle-caused mortality, and for surveys to document presence of the species (Rudolph et al. 2015, p. 3). A variable number of traps are operated per year in 10 Texas counties and seven Louisiana parishes (Rudolph et al. 2015, p. 3). Through the years, there have been slight modifications to some traps, but it is not considered to have had major impacts on trap success (Rudolph et al. 2015, p. 3). Additionally, over time, new traps may be added to locations thought to contain Louisiana pinesnakes because of the presence of suitable conditions, such as preferred soils (Melder 2015, p. 115; Wagner et al. 2014, p. 152).

In total, trapping during 1993-2015 from throughout the historical range of the Louisiana pinesnake has resulted in 101 unique individual captures. Supported by rangewide trapping results and the historical records database, Rudolph et al. (2006, p. 467-469) concluded that the failure to document existing Louisiana pinesnake populations at known historical localities, coupled with the degradation and fragmentation of habitat in those areas, indicates that the Louisiana pinesnake had been extirpated from significant portions of its historical range. Three parishes (Beauregard, Jackson, and Rapides) in Louisiana, and seven counties (Hardin, Nacogdoches, Polk, Sabine, San Augustine, Trinity, and Wood) in Texas, are now considered unoccupied by the Louisiana pinesnake. Rudolph et al. (2006, pp. 467-469) determined that six occupied areas were in existence in 2006. In 2007, an area on the Kisatchie District of the Kisatchie National Forest (KNF) in Louisiana was determined to be occupied by the Louisiana pinesnake. Based on 2014 analysis (and reaffirmed by 2016 analysis) of occurrence records of counties or parishes with multiple observations since 1993, six natural, potentially extant, populations of Louisiana pinesnakes occur in four parishes (Bienville, Natchitoches, Sabine, and Vernon) in Louisiana, and three counties (Angelina, Jasper, and Newton) in Texas. Louisiana pinesnake habitat currently considered occupied (based upon 1993-2015 occurrence data) is primarily concentrated on public lands controlled by the Department of Defense (DOD) (Joint Readiness Training Center and Fort Polk [Fort Polk] and Peason Ridge), the USFS (KNF and Angelina National Forest [ANF]), and privately owned industrial timberlands in Louisiana and Texas. There is also a reintroduction feasibility-study population of Louisiana pinesnakes that has been established from captive-bred snakes in Grant Parish, Louisiana, on KNF lands.

Although single observations were not used to establish known occupied areas, single individuals have been documented in one Louisiana parish and two Texas counties (see Figure 1, above). A single Louisiana pinesnake was observed crossing a road in 1994 in Tyler County, but no others have been recorded in that county in the 22 years since that observation. A single observation of a Louisiana pinesnake found dead along a road in 2001 indicates that the current population in Natchitoches Parish may have extended into extreme northwestern Rapides Parish, Louisiana; however, no more have been sighted in Rapides Parish since 2001. A juvenile Louisiana pinesnake was captured in 2008, in Nacogdoches County near Garrison, Texas (Pierce 2015, unpub. data), suggesting that at least some individuals existed near that site as recently as 8 years ago.

To estimate the size of occupied habitat areas, all Louisiana pinesnake records from 1993 to 2015 (Pierce 2015, unpub. data) containing location data and meeting the criteria established below (157 records), were plotted in a Geographic Information System (GIS). Using ArcMap (Version 10.2.1), a minimum convex polygon (MCP) was drawn around clusters of records, and a 0.6-mile (mi) (1.0-kilometer (km)) buffer was drawn around each MCP, resulting in the estimated occupied habitat area (EOHA) for Louisiana pinesnakes represented by that group of records. The MCP was buffered to accommodate the fact that trap locations were not placed on the landscape with the intent of delineating population boundaries. A 0.6-mi (1.0-km) buffer was used because telemetry data indicate this is a reasonable approximation of the area that a Louisiana pinesnake uses during 1 or more years (Rudolph 2008a, pers. comm.). After discussions with experts, including Dr. Craig Rudolph and members of the Association of Zoos and Aquariums (AZA), the Service developed criteria to determine the data and methodology to be used for estimating the boundaries of the EOHAs.

All Louisiana pinesnake verified occurrence records were used for EOHA analysis except for: Those obtained prior to 1993 (before extensive trapping began); and records older than 11 years (from the time of analysis; which is the estimated Louisiana pinesnake generational turnover period (Marti 2014, pers. comm.)), when traps within 0.6 mi (1 km) of those records had been unproductive for 5 years of trap effort following the date of the records.

That methodology uses records (including non-trap occurrence) obtained over a period of intense surveys during the estimated generational time of Louisiana pinesnakes in captivity. However, some records that are located in areas potentially still occupied by the species, where habitat attributes have remained similar or improved since observed occurrence, are not used for this estimation of occupied range because significant trapping efforts have not produced any additional records in that area.

The original purpose of the EOHAs designation was to match proactive habitat management activities to areas most likely to be currently occupied by the Louisiana pinesnake (U.S. Fish and Wildlife Service 2014, p. 8). Based on the previously described methodology, the following EOHAs have been delineated (Figure 2): (1) The Bienville EOHA located on privately owned industrial timberlands in Bienville Parish, Louisiana; (2) the Kisatchie EOHA located on USFS lands (the Kisatchie Ranger District of the KNF in Natchitoches Parish, Louisiana); (3) the Peason Ridge EOHA located on DOD lands (Vernon and Sabine Parishes) and a small amount of private lands (inholdings) in Louisiana; (4) the Fort Polk/Vernon EOHA located on DOD lands (Fort Polk), USFS lands (the Vernon Unit/Calcasieu District of the KNF), and a small amount of private lands (inholdings) in Vernon Parish, Louisiana; (5) the Scrappin' Valley EOHA located primarily on privately owned timberlands in Newton County, Texas; (6) the Angelina EOHA located on USFS lands (the southern section of ANF in Angelina and Jasper Counties) and private lands in Texas; and (7) the Catahoula Reintroduction Feasibility EOHA located on USFS lands (the Catahoula Ranger District of the KNF in Grant Parish, Louisiana). Utilizing the methods described above, the Winn Ranger District of the KNF in Natchitoches Parish, Louisiana, and the Sabine National Forest in Sabine County, Texas, identified in 2008, are no longer considered occupied.

Those EOHAs occur on 30,751.9 ac (12,444.8 ha) of DOD lands, 47,101.3 ac (19,061.2 ha) of USFS lands, 499.7 ac (202.2 ha) of State and municipal lands, and 67,324.9 ac (27,245.4 ha) of private lands (Table 1).

The Louisiana pinesnake is recognized as one of the rarest snakes in North America (Young and Vandeventer 1988, p. 203; Himes et al. 2006, p. 114). It was classified in 2007 as endangered on the International Union for Conservation of Nature's (IUCN's) Red List of Threatened Species (version 3.1; http://www.iucnredlist.org/).

Most Louisiana pinesnake records that were used to approximately delineate occupied habitat for 2016 were acquired by trapping. We considered each day that a trap was open a “trap day.” Thus, for an area being surveyed, all traps in that area that were open contribute to the number of trap days (i.e., four traps that are open for 3 days each equals 12 trap days). The ratio of trap days and number of unique snakes captured is called “trap success” (i.e., two unique snakes captured during 2,000 trap days = 1 capture per 1,000 trap days or a 1:1,000 trap success) and was determined for each population. Louisiana pinesnake trapping across the species' entire range (including areas outside of EOHAs in Louisiana and Texas) during 1993 through 2015 has resulted in 101 unique individual captures during 448,892 trap days (1:4,444 trap success) (Pierce 2016a, pers. comm.). Trapping information can be compared to similar species to get a sense of the relative rarity of this species when compared to a similar species trapped in a comparable way. For instance, a Florida pinesnake trapping effort using similar drift fence trapping methods in one 30,000-ac (12,141-ha) section of the species' range captured 87 unique individuals during 50,960 trap days (1:585.7 trap success) over a 13-year period from 2003 to 2015 (Smith 2016b, pers. comm.). The Louisiana pinesnake site with the greatest long-term trap success by far, the Bienville EOHA, which is 61,090.9 ac (24,722.6 ha), has a trap success rate of 1:854.0 between 1993 and 2015 (Pierce 2016a, pers. comm.), which is substantially lower than those found in Smith's study of Florida pinesnake. Actual population densities cannot be reliably estimated from trapping data because mark-recapture analyses cannot be conducted without sufficient numbers of Louisiana pinesnake recaptures, but similar trapping methods have been used by others to estimate snake abundance.

All Louisiana pinesnake EOHAs contain at least some suitable habitat, and experience varying amounts of beneficial forest management. However, most populations appear to show either a decline or no conclusive change in trap success through time, indicating that numbers of individuals in most populations are likely decreasing (Rudolph et al. 2015, p. 8). Despite continued effort, some populations have not experienced trap success or other occurrence records for many years. For this reason, as discussed earlier, the Winn Ranger District of the KNF portion of the Bienville EOHA and the Sabine EOHA are no longer considered occupied. Trapping efforts (all provided by Pierce (2015, unpub. data)) and habitat management actions are presented below for each EOHA.

Based on trap and other occurrence records (84 occurrences (including trap recaptures) from 1988 through 2015) (Pierce 2015, unpub. data), the Bienville population is widely believed to be the largest extant Louisiana pinesnake population (Rudolph et al. 2006, p. 465; Reichling et al. 2008, p. 10). For all trapping efforts so far (1995 through 2015, not continuous), trap success for this population was 1:854. While trap success varies annually, the trap success in this area has been consistently greater than for any other population overall. Trapping on that private timberland has only recently resumed in 2012, after cessation in 2009. The Kepler Lake area of the Bienville EOHA has produced the best trap success of any trapping area in areas currently known to be inhabited by the species. Consequently, Reichling et al. (2008, p. 10) believed this site was critical for the preservation of this species. Trapping from a previous effort on the Winn District portion of this population between 2000 and 2001 provided two captures (in addition to one recapture). Trap efforts in the same area from 2004 to 2013 have produced zero captures in 7,525 trap days, and the area is now regarded as unoccupied.

Within the privately owned timberland described above, two disjunct areas are managed for the Louisiana pinesnake with thinning, longleaf pine restoration, targeted herbicide use, and prescribed burning (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

Two relatively recent Louisiana pinesnake occurrence records (one non-capture sighting (2003) and one hand-capture (2007)) exist for this population. No Louisiana pinesnakes were captured during 12,011 trap days (1997 to 2003) on the Kisatchie District of the KNF. However, past trapping did not occur in the locations of the records mentioned above. Furthermore, despite the presence of substantial amounts of suitable habitat on the Kisatchie District, past trapping did not sample the best habitat (Rudolph et al. 2006, p. 469). Trapping resumed within this population in 2012, in the best habitat, and has continued through 2015, but no captures (by hand or trap) have occurred since the 2007 capture (Pierce 2015, unpub. data).

Active habitat management for the endangered red-cockaded woodpecker (Picoides borealis) and the Louisiana pinesnake occur within and surrounding the EOHA of this population (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

Six occurrence records (from 2003 to 2013, all observed after 2005) exist for this population; one of which was a non-trap sighting. The trapping effort for the last 5 years (2009 to 2013 (8,446 trap days)) produced four captures, one in 2010, two in 2012, and one in 2013, with a success rate of 1:2,112 (Pierce 2015, unpub. data).

Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurring at this site has stabilized or increased the amount of preferable habitat that exhibits suitable vegetative characteristics (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

Twenty-two occurrence records from 2003 to 2013, including four non-trap sightings and four trap-recaptures, exist for this population. Trap success for this population over 5 years (2009 to 2013) is estimated to be 1:2,625 (eight unique individual captures out of 21,003 trap days), which includes all recent unsuccessful surveying on the Vernon Unit of the KNF. Since 2003, no captures have occurred on the Vernon Unit. Excluding trapping on the Vernon Unit, DOD observed a trap success rate over 5 years (2009 to 2013) of 1:1,959 (eight unique individual captures during 15,672 trap days) on DOD property (Pierce 2015, unpub. data). Two snakes were trapped in 2014, and there were three records of occurrence in 2015 (one hand-captured and two dead on roads).

Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake has stabilized or increased the amount of habitat that has suitable vegetative characteristics (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

On this primarily private land, five occurrence records during 2005 to 2015 exist for this population; however, two of those were road mortalities, two were removed from the wild for captive breeding, and one was sighted but not captured. There have been no trap captures since 2009 during 15,628 trap days within this population and no other occurrences. During trapping efforts on this land from 1995 to 1997, five captures occurred during 2,128 trap days (a success rate of 1:426), demonstrating a reduction of trap success at this site (Pierce 2015, unpub. data).

Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at this site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

Despite Louisiana pinesnake occurrences as recent as 2008, and proactive habitat management by the former and current private landowners, the lack of recent trap success when compared to trap success in the 1990s suggests that this population has declined due to prolonged minimal suitable habitat availability.

Seven occurrence records during 2003 to 2013 exist for this population. Four were unique trap captures, one was a trap recapture, one was hand-caught alive on a road, and one previously captured and pit-tagged individual was found dead on a road in 2009. Both the trap recapture and hand-caught individual were removed from the wild for captive breeding. From 2009 to 2013, no unique trap captures have occurred within this population during 16,277 trap days. The most recent unique individual trap capture at this site was in 2007. However, a recapture did occur within this population as recently as 2012, and that individual was removed from the wild for captive breeding. Trap success rates have shown a steady decline throughout the effort period: From 1992 to 1997, success rate was 1:652 (2 captures during 1,303 trap days); during 1998 to 2005, success rate was 1:3,420 (2 captures during 6,840 trap days); and during 2007 to 2012, success rate was 1:5,305 (3 captures during 15,916 trap days). However, all trap effort within this population produced only a total of seven unique individual Louisiana pinesnakes since the 1990s (27,656 trap days) (Pierce 2015, unpub. data).

Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at this site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

An informal committee was established to oversee and conduct an experimental reintroduction of the Louisiana pinesnake in an attempt to demonstrate the feasibility of reintroducing a population using individuals from a captive population, and establishment of a viable population in restored habitat. In total, 77 captive-bred Louisiana pinesnakes (11 in 2010, 15 in 2011, 3 in 2012, 15 in 2013, 1 in 2014, 15 in 2015, and 17 in 2016) have been released into the wild at the Catahoula Ranger District of the KNF (Pierce 2016, unpub. data; Pierce 2016b, pers. comm.; Smith 2016a, pers. comm.). This area is not near any known Louisiana pinesnake populations and not within the known historical range of the species. Detection of released snakes is occurring within this EOHA through monitoring of deployed Automated PIT Tag Recorders (APTRs) and trapping. Prior to March 22, 2016, 60 snakes have been released, and as of that date a total of 26 individual snakes have been detected at least once after release (detections beginning 1 day after release): of those, 14 snakes have been detected alive more than 60 days after release, of those, 10 have been detected alive in the year following the winter after release, of those, 7 have been detected 2 years (winters) after release, of those, 3 have been detected 3 years (winters) after release, and of those, 1 snake has been detected 4 years (winters) after release (Pierce 2016b, pers. comm.; Pierce 2016c, pers. comm.).

Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at the Catahoula Ranger District site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

The captive Louisiana pinesnake zoo population established in 1984 was initially maintained through wild collection. The AZA Species Survival Plan (SSP) for the Louisiana pinesnake was implemented in 2000, to manage the zoo population (Reichling et al., in litt. 2015, p. 1). The goals of the SSP are to: Maintain an assurance colony for wild Louisiana pinesnake populations, preserve or increase genetic heterozygosity into the future, preserve representative genetic integrity of wild populations, and provide individuals as needed for research and repopulation for the conservation of wild populations (U.S. Fish and Wildlife Service 2013, pp. 32-33). As of March 2016, the captive-breeding Louisiana pinesnake population consists of 111 individuals (51 males, 53 females, and 7 unsexed individuals) in 18 AZA accredited institutions and 2 non-AZA partner institutions (Reichling 2016, pers. comm.). Initially, three populations were managed based on their different geographic origins, which are separated by rivers (one from Texas, separated from Louisiana by the Sabine River, and two from Louisiana, which are separated by the Red River) (Reichling and Schad 2010, p. 1). Recent genetic analyses showed that all populations were similar in population structure and the Texas and southern Louisiana populations were difficult to separate genetically (Kwiatkowski et al. 2014, p. 12). Therefore, currently one group is derived from Bienville Parish, Louisiana, founders and the other group is a combination of Vernon Parish, Louisiana, and eastern Texas snakes (Reichling 2016, pers. comm.).

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

Both the quantity and quality of the natural longleaf pine ecosystem, the primary historical habitat of the Louisiana pinesnake, have declined sharply in Louisiana and Texas since European settlement. The loss, degradation, and fragmentation of the longleaf pine dominant ecosystem was historically caused by logging, turpentining, fire suppression, alteration of fire seasonality and periodicity, conversion to generally off-site pine species plantations, agriculture, and free-range hogs (Frost 1993, pp. 24-30, 31, 35). Virtually all virgin timber in the southern United States was cut during intensive logging from 1870 to 1920 (Frost 1993, p. 30). Only about 2.9 percent of longleaf pine forests in Louisiana and Texas were uncut old-growth stands in 1935 (Bridges and Orzell 1989, p. 246). During the latter half of the 20th century, Louisiana, Alabama, and Mississippi lost between 60 and 90 percent of their already reduced longleaf acreage (Outcalt and Sheffield 1996, pp. 1-10). By the late 1980s, the natural longleaf pine acreage in Louisiana and Texas was only about 15 and 8 percent, respectively, of what had existed in 1935 (Bridges and Orzell 1989, p. 246). Those longleaf pine forests were primarily converted to extensive monoculture pine plantations (Bridges and Orzell 1989, p. 246), which presumably were not primarily managed for enhancement of herbaceous vegetation.

In short, the longleaf dominant pine forest (longleaf pine forest type plus longleaf pine in mixed species stands) in the southeastern United States declined approximately 96 percent from the historical estimate of 92 million ac (37 million ha) (Frost 1993, p. 20) to approximately 3.75 million ac (1.52 million ha) in 1990 (Guldin et al. 2016, p. 324). Since the 1990s, longleaf pine dominant forest acreage has been trending upward in parts of the Southeast through restoration efforts (Guldin et al. 2016, pp. 323-324). By 2010, the longleaf dominant pine forest stands had increased to approximately 4.3 million ac (1.7 million ha) (Oswalt et al. 2012, p. 10; Guldin et al. 2016, pp. 323-324). A recent estimate for the extent of longleaf dominant pine forest in 2015 was 4.7 million ac (2.8 million ha) (America's Longleaf Restoration Initiative 2016, p. 12).

In general, southern forest futures models predict declines of overall forest land area in the southeastern United States between 2 and 10 percent in the next 50 years (Wear and Greis 2013, p. 78). The model-projected losses of natural pine forest in the Southeast would be mostly the result of conversion to planted pine forests (Wear and Greis 2013, p. 79). For the southern Gulf region, model runs assuming high levels of urbanization and high timber prices predict large percentage losses in longleaf pine in some parishes and counties of Louisiana and Texas that were historically and that are currently occupied by the Louisiana pinesnake, while two Louisiana parishes in the current occupied range are expected to gain (less than the percent decline predicted in the other parishes and counties) in longleaf pine acreage (Klepzig et al. 2014, p. 53). The outer boundary or “footprint” of the longleaf pine ecosystem across its historical range has contracted as recently as the period of 1990 to 2010, with losses (primarily due to conversion to loblolly pine) in western Louisiana and eastern Texas (Oswalt et al. 2012, pp. 10-14).

Impacts from urbanization are not consistent throughout the Southeast, and most population growth is predicted to occur near major cities (Wear and Greis 2013, p. 21), which are generally not near known Louisiana pinesnake occurrences; however, the most recent assessment still predicts decreased use of land for forests (mainly due to urbanization) in the next 45 years in all of the parishes (Louisiana) and counties (Texas) historically and currently occupied by the species (Klepzig et al. 2014, pp. 21-23).

High-quality longleaf pine forest habitat, which is generally characterized by a high, open canopy and shallow litter and duff layers, is maintained by frequent, low-intensity fires, which in turn restrict a woody midstory and promote the flowering and seed production of fire-stimulated groundcover plants (Oswalt et al. 2012, pp. 2-3). The Louisiana pinesnake was historically associated with natural longleaf pine forests, which were maintained in good condition by natural processes and have the abundant herbaceous vegetation necessary to support the Louisiana pinesnake's primary prey, the Baird's pocket gopher (Himes 1998, p. 43; Sulentich et al. 1991, p. 3; Rudolph and Burgdorf 1997, p. 17). Based on trapping surveys and location records, it appears that areas managed with silvicultural practices for fiber production that do not allow sufficient herbaceous vegetation growth do not support viable Louisiana pinesnake populations (Rudolph et al. 2006, p. 470) because the snake's pocket gopher prey requires herbaceous vegetation for forage.

Rudolph et al. (2006, p. 467) assessed habitat conditions during 1999 and 2000, at the locations of all historical Louisiana pinesnake records (n = 118 localities) known at that time. They found that 70 percent (26 of 37) of the localities on public lands met their criteria as excellent or good condition, whereas only 33 percent (27 of 81) of the localities on private lands met their criteria as excellent or good condition. Due to habitat fragmentation, most sites with excellent or good habitat were isolated and small (typically a few hundred hectares, or less (Rudolph et al. 2006, p. 466)). The distribution of Louisiana pinesnakes within the current range was further restricted because intensive land use activities and the disruption of natural fire regimes had decreased the quantity and quality of the intervening areas as habitat for this species (Rudolph et al. 2006, p. 470). Based on the low capture rates reported during trapping from 1993 to 2001, and the limited habitat availability, Rudolph et al. (2006, p. 468) concluded that remnant Louisiana pinesnake populations are not large. In fact, during this 9-year trapping period, only 24 unique captures of Louisiana pinesnakes occurred out of 2,372 total unique snake captures in 101,828 trap days (a trap success of 1:3,775 for Louisiana pinesnake). At many sites, no pinesnakes were captured, but even at sites where they were captured, the average trap success was only 1:733 (Rudolph et al. 2006, p. 465).

The disruption of natural fire regimes, due to fire suppression and inadequate, infrequent prescribed burning, is the leading factor responsible for the degradation of the small amount of remaining suitable longleaf pine forest habitat (Rudolph and Burgdorf 1997, p. 118; Rudolph 2000, p. 7). In the absence of frequent and effective fires, upland pine savannah ecosystems rapidly develop a midstory of hardwoods and other overstory species that suppress or eliminate any herbaceous understory. As the presence of pocket gophers is directly related to the extent of herbaceous vegetation available to them, their population numbers and distribution decline as such vegetation declines, which in turn directly impacts the number and distribution of Louisiana pinesnakes. The use of prescribed burning has decreased on private timberlands because of legal liability and the expense of liability insurance, the planting of pine species which have a reduced tolerance to fire, limited funds and personnel, and smoke management issues. According to Wear and Greis (2013, p. 509), southern forests are likely to see increasing challenges to prescribed burning in the future as land-use changes involving fuels management, increased urban interface, and revised safety and health regulations will continue to constrain prescribed fire efforts. Some of these constraints could be in the form of reduced fire intervals or reductions in average area burned per fire event (strategies often used in management of pine plantations), which may not provide adequate fire intensity or frequency to suppress the overgrown understory and midstory conditions that limit herbaceous vegetation growth.

Overstory species other than longleaf pine can be managed to provide suitable understory for pocket gophers, but this is generally more difficult, as these species lack the physical characteristics and ecological adaptations to sustain desired understory conditions during all life stages, especially when managed with prescribed fire. Specifically, longleaf pine is adapted to thrive with frequent fire during all life stages, which allows continual maintenance of herbaceous communities. Other pine species lack these adaptations to fire that allow for frequent fire during all life stages (especially very young trees). Non-longleaf pine communities can be managed to provide suitable habitat within a stand when burning is not recommended (e.g., very young trees) by using herbicides and other techniques. However, if those techniques alter the composition or density of the groundcover vegetation and pocket gophers decline in response, it is likely that Louisiana pinesnakes will decline in response as well (USFWS 2001). In addition, longleaf pine structure (e.g., branch and needle structure) naturally allows more sunlight penetration at similar stem densities than other pine species.

Regardless of the methods used to promote herbaceous vegetation in the understory, the amount and types of herbaceous vegetation are limited by the amount of sunlight able to reach the forest floor and, for some species, by the presence of fire (i.e., to scarify seeds, promote seed production, and consume leaf litter). Therefore, conversion and management of overstory vegetation that does not provide for continued maintenance of herbaceous vegetation in otherwise suitable habitat will further limit habitat available to the Louisiana pinesnake.

Habitat fragmentation threatens the continued existence of all Louisiana pinesnake populations, particularly those on private lands. This is frequently the result of urban development, conversion of longleaf pine sites to intensively managed pine plantations, and an increase in the number of roads. When patches of available habitat become separated beyond the dispersal range of a species, small populations may become less resilient because additions of individuals to the population may decline along with their potential genetic diversity contributions, thus increasing the risk of extirpation (see discussion under Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence).

In summary, habitat loss and continuing degradation of the Louisiana pinesnake's habitat remain a significant threat to this species' continued existence.

When considering whether or not to list a species under the Act, we must identify existing conservation efforts and their effect on the species. In this section, we describe the extensive habitat restoration efforts that have occurred on Federal lands throughout the range (to a lesser extent on private lands) that have reduced the threat of habitat loss for some populations. We also discuss the lack of a definitive positive response of the Louisiana pinesnake to these efforts, at present.

Existing and Planned Conservation Efforts: As early as the 1980s, forest restoration and management had been implemented on Fort Polk, Peason Ridge, and adjacent USFS lands to restore and maintain conditions of widely spaced trees, clear of dense midstory growth (U.S. Department of the Army 2014, p. 21). Management occurred for training suitability and red-cockaded woodpecker habitat, and most recently for Louisiana pinesnake habitat. The requirements for those three objectives happen to have significant overlap, especially the maintenance of open canopy pine forest.

USFS has also implemented habitat restoration and management for many years on Sabine National Forest (SNF), ANF, and KNF to benefit the red-cockaded woodpecker, as provided for in its land and resource management plans (USFS 1996, pp. 107-134; USFS 1999, pp. 2-61 to 2-73). In 2003, a candidate conservation agreement (CCA) for the Louisiana pinesnake, which includes the Service, USFS, DOD, Texas Parks and Wildlife Department (TPWD), and LDWF, was completed. Targeted conservation actions are currently being implemented as part of that agreement. The CCA is designed to identify and establish beneficial habitat management actions for the Louisiana pinesnake on Federal lands in Louisiana and Texas, and provides a means for the partnering agencies to work cooperatively on projects that avoid and minimize impacts to the species. The CCA also set up mechanisms to exchange information on successful management practices and coordinate research efforts. SNF [Sabine Louisiana pinesnake population considered extirpated since 2014] and ANF in Texas, and KNF and Fort Polk in Louisiana, agreed in the CCA to continue or start new stem thinning and prescribed burning operations in sections of upland pine forests and, where possible, to convert forests to longleaf pine (CCA 2003, p. 12-16).

Since completion of the CCA, beneficial forest management activities conducted by USFS and Fort Polk have been formally dedicated to conservation of the Louisiana pinesnake. Removing some trees from a dense stand with heavy canopy cover allows more light to reach the ground, which can promote the growth of herbaceous vegetation, an important food source for the primary prey of the Louisiana pinesnake. Prescribed burning helps to control midstory cover, particularly hardwood species that compete with pine seedlings and reduce light penetration. Converting forests to longleaf pine is helpful because longleaf pine is better adapted to fire (and tolerates it at an earlier age) than other pine species, and therefore is generally easier to manage with prescribed fire over multiple rotations. Historically, Louisiana pinesnakes were predominantly found in longleaf pine forests, and that forest type was historically the dominant type in the areas that now make up the KNF, ANF, and Fort Polk.

The CCA was revised in 2013, and now also includes the U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service (NRCS) and the AZA as cooperators (U.S. Fish and Wildlife Service 2013, pp. 7-8). That agreement updates, supersedes, and improves upon the 2003 CCA, and uses significant new information derived from research, threats assessments, and habitat modeling that was not available in 2003 to focus conservation actions, including beneficial forest management, in areas with the best potential to become suitable habitat for the Louisiana pinesnake. Those areas are called habitat management units (HMUs), and they were delineated based on existing red-cockaded woodpecker habitat management areas (HMAs) in upland pine forests. Those areas were further defined by the location of preferable and suitable soils (LRSF-Model) for the Louisiana pinesnake in order to dedicate resources to areas the species is most likely to inhabit. However, the updated CCA addresses threats from habitat loss only on Federal lands, and for the activities performed by NRCS on private land. The CCA also includes guidance on practices to reduce impacts to Louisiana pinesnakes from vehicles on improved roads and off-road all-terrain vehicle (ATV) trails (see “Conservation Efforts To Reduce Threats Under Factor E,” below).

Thousands of acres of forests on Federal lands have been treated over many years with prescribed burning, and that treatment along with tree thinning continues to the present. The following tables summarize recent forest management activities on Federal lands where Louisiana pinesnake populations occur. Values have been rounded to the nearest acre.

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act (Act), if we determine that any species is an endangered or threatened species we must designate critical habitat, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

This rule is a proposed rule to designate critical habitat for the Black Warrior waterdog under the Act.

The basis for our action. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

We prepared an economic analysis of the proposed designation of critical habitat. We prepared an analysis of the economic impacts of the proposed critical habitat designation and related factors. We hereby announce the availability of the draft economic analysis (DEA) and seek public review and comment.

We will seek peer review. We are seeking comments from independent specialists to ensure that our critical habitat proposal is based on scientifically sound data and analyses. Because we will consider all comments and information we receive during the comment period, our final designation may differ from this proposal.

We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

(2) Specific information on:

(a) The amount and distribution of Black Warrior waterdog habitat;

(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on the Black Warrior waterdog and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation and the benefits of including or excluding areas that exhibit these impacts.

(6) Information on the extent to which the description of economic impacts in the DEA is a reasonable estimate of the likely economic impacts.

(7) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

(8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

All comments submitted electronically via http://www.regulations.gov will be presented on the Web site in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

All previous Federal actions regarding the Black Warrior waterdog are described in the proposal to list the species as an endangered species under the Act, published elsewhere in this issue of the Federal Register.

The Black Warrior waterdog is a species of salamander that inhabits, and is endemic to, streams above the fall line in the Black Warrior River Basin (Basin) in Alabama. The Black Warrior waterdog is a large, aquatic, nocturnal salamander that permanently retains a larval form and external gills throughout its life (Conant and Collins 1998, pp. 419-420). The Black Warrior waterdog inhabits the same areas as the flattened musk turtle (Sternotherus depressus), a species listed as threatened under the Act (52 FR 22418; June 11, 1987). According to Mount (1981, p. 23), optimal habitat for the flattened musk turtle consists of “segment[s] of a free flowing large creek or small river having the following characteristics: (1) Drainage area between 50 and 500 square miles, (2) depth averaging 2 feet, with vegetated shallows alternating with pools at least 3 to 4 feet deep, (3) pools with detectable current, (4) abundance of submerged rocks with crevices, overlapping flat rocks, or accumulations of boulders, (5) abundant molluscan fauna, (6) low silt load and minimal silt deposits, (7) relatively low nutrient content and bacterial count, (8) moderate temperatures (maximum 85 [degrees Fahrenheit (°F)], and (9) minimal pollution by synthetic chemicals and toxic inorganic materials” (Bailey 2014, p. 1). We find that the optimal habitat for the flattened musk turtle, as described by Mount, reflects the optimal habitat for the Black Warrior waterdog with two differences: the Black Warrior waterdog's prey preference is insect larva instead of molluscan fauna, and it uses leaf packs (leaves that accumulate in streams and form leaf bundles behind branches, rocks, and other objects) as shelter and foraging habitat.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define “geographical area occupied by the species” as an area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the specific features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific and commercial data available. They require our staff, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or

(2) designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include, but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

As discussed under Factor B in the proposed listing rule, which is published elsewhere in this issue of the Federal Register, there is currently no imminent threat of take attributed to collection or vandalism for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we consider whether such designation of critical habitat would not be beneficial to the species. As discussed in our proposed listing rule, we determined that the present or threatened destruction, modification, or curtailment of a species' habitat or range is a threat to the Black Warrior waterdog. We have also identified, in this proposed rule, areas that meet the definition of critical habitat.

Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the Black Warrior waterdog.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Black Warrior waterdog is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or

(ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. We have determined that this information is sufficient for us to analyze the impacts of designation, and includes sufficient information about the biological needs of the Black Warrior waterdog to allow us to identify areas for inclusion in critical habitat. Therefore, we conclude that critical habitat is determinable for the Black Warrior waterdog.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. We define “physical or biological features” at 50 CFR 424.02 as: “The features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.” These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of a species.

We derive the specific physical or biological features essential for Black Warrior waterdog from studies of this species' habitat, ecology, and life history as described below. We have determined that the following physical or biological features are essential for Black Warrior waterdog.

The Black Warrior waterdog is found in the Black Warrior Basin above the fall line (rocky habitat with little sand). According to Mount (1981, p. 23), the Black Warrior waterdog's optimal habitat consists of a “segment of a free flowing large creek or small river having the following characteristics: (1) Drainage area between 50 and 500 square miles, (2) depth averaging two feet, with vegetated shallows alternating with pools at least three to four feet deep, (3) pools with detectable current, (4) abundance of submerged rocks with crevices, overlapping flat rocks, or accumulations of boulders, (5) abundant molluscan fauna, (6) low silt load and minimal silt deposits, (7) relatively low nutrient content and bacterial count, (8) moderate temperatures (maximum 85 °F), and (9) minimal pollution by synthetic chemicals and toxic inorganic materials.” The Black Warrior waterdog finds refuge under boulders or rocks and in crevices, lays its eggs on the underside of boulders, feeds on insect larva, and has permeable skin.

Because much is unknown about the spatial habitat requirements of the Black Warrior waterdog, we considered the Neuse River waterdog (Necturus lewisi), a closely related species that occurs in the North Carolina piedmont plateau region, as a surrogate species. The Neuse River waterdog inhabits similar microhabitat, has similar feeding requirements, and occurs in the Piedmont plateau region. The tributaries of the Neuse River are characterized with gradients similar to the habitat found in the Black Warrior River Basin. According to Ashton (1985, pp. 103-104), adult and juvenile Neuse River waterdogs utilize microhabitats characterized by moderate stream flow and relatively high dissolved oxygen concentrations, which is consistent with other Necturus species found in southern States. Studies of the Neuse River waterdog indicate that adult waterdogs utilize areas with large bedrock outcrops, large boulders with sandy-gravel bottoms, and stream banks with rock outcroppings.

We note that although the Gulf Coast waterdog (Necturus beyeri) is also found in the Black Warrior Basin, we did not consider the species as a surrogate for the Black Warrior waterdog because it utilizes a different microhabitat; the Gulf Coast waterdog is usually found below the fall line (sandy habitat). Streams utilized by the Gulf Coast waterdog usually have sandy substrate, flow through flatter terrain, and have broader flood plains than the Black Warrior waterdog's habitat.

Therefore, based on the information above, we identify geomorphically stable streams with substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices, rock slabs, and leaf packs to be essential physical or biological features for the Black Warrior waterdog. The connectivity of these stream microhabitats is essential in accommodating growth and other normal behaviors of the Black Warrior waterdog and in promoting gene flow within the species.

Feeding habits of the Black Warrior waterdog are unknown but are likely similar to the feeding habits of Neuse River waterdog. Both adult and juvenile Neuse River waterdogs appear to be opportunistic feeders. Braswell and Ashton (1985, pp. 22-27) found that larval waterdog diets consist primarily of a variety of aquatic arthropods (Ostracoda, Copepoda, Isopoda, and Amphipoda) with some insect larvae (Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and Coleoptera). The adult waterdog diet was more expansive than the juvenile diet and included aquatic arthropods, other aquatic and terrestrial invertebrates (earthworms, centipedes, beetles, grubs), and aquatic and terrestrial vertebrates (fish and salamanders) (Braswell and Ashton 1985, pp. 13, 24-25).

Since aquatic invertebrates are an important component of the Black Warrior waterdog's diet—specifically, the prey base of aquatic arthropods, insect larvae (Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and Coleoptera), aquatic and terrestrial invertebrates, and aquatic and terrestrial vertebrates—it is essential to also take into consideration the aquatic insects' specific habitat requirements. Merrit and Cummins (1996) described caddisfly and mayfly habitat as a wide variety of standing and flowing water habitats, with the greatest diversity being found in rocky-bottom streams with an abundance of oxygen. As a result, they further identify the food sources as a variety of detritus (leaf packs), algae, diatoms, and macrophytes for the aquatic insects.

As little is known about the specific water quality needs of the Black Warrior waterdog, we evaluated and based the water quality parameters on various factors, specifically Mount's description of optimal habitat, Neuse River waterdog literature, prey species requirements (insect larva), Alabama Department of Environmental Management (ADEM) water quality standards, and water quality requirements for currently listed aquatic species found in the Basin, as follows: rush darter (Etheostoma phytophilum), Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), ovate clubshell (Pleurobema perovatum), triangular kidneyshell (Ptychobranchus greenii), upland combshell (Epioblasma metastriata), and southern acornshell (Epioblasma othcaloogensis).

Appropriate water quality parameters to support the Black Warrior waterdog's primary prey base and other listed species in the Basin include:

• Water that lacks harmful levels of pollutants, including inorganic contaminates such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 12-15);

• Water temperature not exceeding 85 °F;

• Dissolved oxygen 5.5 milligrams per liter (mg/L) or greater;

• Turbidity of an average monthly reading of 15 nephelometric turbidity units (NTUs; units to measure sediment discharge) above background readings;

• 115 mg/L of total suspended solids (TSS; measured as mg/L of sediment in water) or less; and

• A specific conductance (ability of water to conduct an electrical current, based on dissolved solids in the water) of no greater than 225 microsiemens (µS) per centimeter at 80 °F (October 10, 2012; 77 FR 61664).

These water quality parameters are very similar to those identified as the primary constituent elements for the rush darter (Etheostoma phytophilum) and the Alabama pearlshell (Margaritifera marrianae). The Black Warrior waterdog benefits from instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regimes (the pathway along the entire length of a stream). The benefits are inclusive of both surface runoff and ground water sources and exclusive of flushing flows caused by stormwater runoff.

The Black Warrior waterdog has similar hydrologic requirements as those of the Neuse River waterdog, which are usually found in streams greater than 15 meters (m) (50 feet (ft)) wide and deeper than 100 centimeters (cm) (3 ft), and are not found in streams where water flow ceases under normal summer dry weather conditions (Braswell and Aston 1985, pp. 26-30). However, based on recent environmental deoxyribonucleic acid (eDNA) research, conducted by Godwin (2014, pers. comm.), the Black Warrior waterdog could be utilizing streams as narrow as 4 m (13 ft) wide.

The quality of the chemical and physical environment of the streams in the upper Black Warrior River Basin is essential to the survival of the Black Warrior waterdog. Optimal water quality lacks harmful levels of pollutants, including inorganic contaminates such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 13-15). Factors that can potentially alter water quality include droughts and periods of low seasonal flow, precipitation events, nonpoint source runoff, human activities within the watershed, random spills (oil, chemicals, pesticides, fertilizer, etc.), and unregulated stormwater discharge events. A decrease in water quality and instream flow would correspondingly cause a decline in the major food species for the Black Warrior waterdog. Excessive high water flows can wash away or cover (with sediment) leaf packs that are essential for juvenile and adult waterdog foraging and feeding.

Natural variations of instream flows maintain the stream bottom substrates, providing oxygen and other attributes to various invertebrate life stages. Sedimentation contributes to turbidity of the water and has been shown to reduce photosynthesis in aquatic plants, suffocate aquatic insects, smother aquatic eggs, clog gills, and fill in essential interstitial spaces used by aquatic organisms for spawning and foraging. Sedimentation has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater) and disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and Welch 2004, pp. 132-135).

Therefore, based on the information above, we identify medium to larger streams (typically 4 m (13 ft) wide or greater), containing hard substrate (clay or bedrock with little sand) and abundant rock crevices and rock slabs; cool, clean, flowing water having a dissolved oxygen level of 5.5 mg/L or greater; moderate water velocity; aquatic macroinvertabrate prey items; and leaf packs to be essential physical or biological features for the Black Warrior waterdog.

Preferred substrates for the Black Warrior waterdog are dominated by clay or bedrock with little sand, and also contain abundant rock crevices and rock slabs for retreats (shelter) and areas for egg laying. Based on capture data, the Black Warrior waterdog utilizes leaf pack for shelter from predators and as foraging areas for prey species. We identify hard bottom substrate with a combination of boulders, rock slabs, and rock outcrops for shelter and reproduction and leaf packs to be essential physical and biological features for the Black Warrior waterdog.

Little is known about the specific requirements of Black Warrior waterdog's reproduction. Based on Neuse River waterdog research, breeding sites are large bedrock outcrops or large boulders with sand and gravel beneath them (Ashton 1985, p. 95). Data collected from the Cincinnati Zoo show that the Black Warrior waterdog deposits eggs under rock slabs or in rock crevices, and the female guards the eggs. Juvenile Black Warrior waterdogs are often found in leaf packs in the stream.

Sedimentation can be destructive to Black Warrior waterdogs and their habitat when it contains toxicants and is excessive. Bailey (2000, p. 2) reported that Black Warrior waterdogs are virtually in constant contact with the substrate and; therefore, also with any toxic chemicals present. He also reported that juveniles and adults are impacted by the exposure. Further, excessive sedimentation of the crevices and leaf packs removes foraging, feeding, breeding, and retreat areas for the Black Warrior waterdog (Laschet 2014, pers. obs.).

Therefore, based on the information above, we identify medium to larger streams (4 m wide or greater), with hard substrate (clay or bedrock with little sand, also containing abundant rock crevices and rock slabs) and moderate water velocity; aquatic macroinvertabrate prey items; leaf packs; with adequate water, as defined above, quality to be essential physical and biological features for the Black Warrior waterdog.

Currently, there are no areas that are undisturbed or that are representative of the historical geographical and ecological distribution of the species that the Black Warrior waterdog typically inhabits. The Bankhead National Forest is an area that can reveal a glimpse of a representative of the historic geographical and ecological features of the species' habitat, and is currently considered the stronghold of the species. Streams in this area typically consisted of geomorphically stable streams with substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices and rock slabs. These streams also contain cool, clean, flowing water having a dissolved oxygen levels of 5.5 mg/L or higher; moderate water velocity; aquatic macroinvertabrate prey items; leaf packs; and adequate water quality (ADEM 2010, pp. 1-3).

Therefore, based on the habitat found on Bankhead National Forest, we identify medium to larger streams (4 m (13 ft) wide or greater) with hard substrate (clay or bedrock with little sand, also containing abundant rock crevices and rock slabs) to be essential physical and biological features for the Black Warrior waterdog.

In summary, based on the information described above we identify the physical or biological features essential to the conservation of the Black Warrior waterdog consists of a riverine system with habitat to support all life-history stages of the Black Warrior waterdog, which consists of the following components:

1. Geomorphically stable, medium to large streams (typically 4 m (13 ft) wide or greater) with:

a. Substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices, rock slabs, and leaf packs;

b. Moderate water velocity; and

c. Prey base of aquatic macroinvertebrates.

2. Water that lacks harmful levels of pollutants, including inorganic contaminants such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

3. Appropriate water quality parameters to support Black Warrior waterdog and primary prey base, including:

a. Water temperature not exceeding 85 °F;

b. Dissolved oxygen 5.5 mg/L or greater;

c. Turbidity of an average monthly reading of 15 NTUs above background readings;

d. 115 mg/L of total suspended solids or less; and

e. A specific conductance of no greater than 225 µS per centimeter at 80 °F.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.

The features essential to the conservation of the Black Warrior waterdog may require special management considerations or protections to reduce the following threats: (1) Urbanization activities and inadequate stormwater management (such as stream channel modification for flood control or gravel extraction) that could cause an increase in bank erosion; (2) significant changes in the existing flow regime within the streams due to water diversion or withdrawal; (3) significant alteration of water quality; (4) significant alteration in quantity of groundwater, prevention of water percolating into the aquifer recharge zone, and alteration of spring discharge sites; (5) significant changes in stream bed material composition and quality due to changes in stream flow characteristics, construction projects, and maintenance activities; (6) off-road vehicle use; (7) sewer, gas, and water easements; (8) bridge construction; (9) culvert and pipe installation; and (10) other watershed and floodplain disturbances that release sediments or nutrients into the water.

Management activities that could ameliorate these threats include, but are not limited to: Use of best management practices (BMPs) designed to reduce sedimentation, erosion, and bank side destruction; select harvest of trees along banks, and leaving 50 percent canopy cover (of deciduous trees) along banks; moderation of surface and ground water withdrawals to maintain natural flow regimes; increased use of stormwater management and reduction of stormwater flows into the systems; preservation of headwater springs, and spring runs; regulation of off-road vehicle use; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water.

In summary, we find that the occupied areas we are proposing to designate as critical habitat for the Black Warrior waterdog contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to eliminate, or to reduce to negligible levels, the threats affecting the physical and biological features of each unit. The major threats to the Black Warrior waterdog are sedimentation (loss of habitat), water quality (nutrients, turbidity and toxins), and fragmentation from impoundments.

As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species and surrogates. Based on our review, we are proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing (in this case, currently occupied). In accordance with the Act and its implementing regulation at 50 CFR 424.12, we also considered whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. As a result, we also are proposing to designate specific areas outside the geographical area occupied by the Black Warrior waterdog at the time of listing that are within the historical range of the species, but are currently unoccupied, because we have determined that such areas are essential for the conservation of the species.

For the purpose of proposing critical habitat for the Black Warrior waterdog, we defined the geographical area currently occupied by the species as required by section 3(5)(A)(i) of the Act. We used information from surveys and reports prepared by the Alabama Department of Conservation and Natural Resources, Alabama Geological Survey, Alabama Natural Heritage Program, Auburn University, Alabama Power Company, the U.S. Forest Service, the Natural Resources Conservation Service, and the Service to identify the specific locations occupied by the Black Warrior waterdog. Currently, occupied habitat for the species is isolated and limited to four units. Within these four units, the species is located within seven tributaries in the Black Warrior River Basin. Three of the tributaries are on Bankhead National Forest (Winston County) and include Sipsey Fork, Brushy Creek, and Rush Creek. The other four tributaries are Locust Fork; Gurley Creek, which feeds into Locust Fork (Blount and Jefferson Counties); Blackwater/Browns Creek in Winston County; and Yellow Creek in Tuscaloosa County (Godwin 2014). We have determined that these four units (which include all seven tributaries)—Sipsey Fork, Locust Fork, Browns Creek, and Yellow Creek—meet the criteria for designation as critical habitat. As discussed below, some of these units contain all of the identified elements of physical or biological features and support multiple life-history processes. Some units contain only some elements of the physical or biological features necessary to support the Black Warrior waterdog's particular use of that habitat.

To include areas not occupied by the species at the time of listing in our critical habitat designation, we must demonstrate that these areas are essential to the conservation of the subspecies. To determine if these areas are essential for the conservation of the Black Warrior waterdog, we considered: (1) The importance of the stream to the overall status of the species and the contribution to the future recovery of the Black Warrior waterdog; (2) whether the area could be restored to contain the necessary habitat to support the Black Warrior waterdog; (3) whether the site provides connectivity between occupied sites for genetic exchange; and (4) whether a population of the species could potentially be reestablished in the area. Lye Branch, Lake Tuscaloosa, Lost Creek, and Mulberry Fork meet these criteria. These areas were formerly occupied by the Black Warrior waterdog and are important in its future recovery, still contain suitable habitat for the species, and can support reestablished populations because they formerly supported the species and continue to support the flattened musk turtle, which has similar habitat requirements as the Black Warrior waterdog. In addition, the Lye Branch unit occurs below the fall line for the Basin, which is a unique location for the Black Warrior waterdog. Due to their separation from the other units, these units have the potential to provide genetic material essential to the recovery of the waterdog.

In identifying proposed critical habitat units for the Black Warrior waterdog, we proceeded through a multi-step process. We obtained and reviewed historical records for the Black Warrior waterdog's distribution from Bankhead National Forest and Alabama Natural Heritage, as well as both published and unpublished documentation from our files. Once the historical range was determined, we looked at whether the physical and biological features were present at these historical sites. Then, we reviewed surveys conducted over the last 8 years, including surveys currently being undertaken. We conducted present and absent surveys of known and historical sites and sampled and observed the habitat. Since the Black Warrior waterdog is difficult to detect and capture, we contracted with Alabama Natural Heritage and Auburn University to conduct sampling surveys including the use of eDNA. With the survey results, we confirmed the Black Warrior waterdog's distribution in the Black Warrior River Basin. We determined occupied areas with data collected from surveys conducted over the last 8 years to present. We considered areas that do not have recent capture or sighting data, but that do have historical records prior to the mid-1990s, to be unoccupied by the species.

Our approach to delineating critical habitat units was applied in the following manner:

(1) We overlaid Black Warrior waterdog locations into a GIS database. This provided us with the ability to examine slope, elevation, geologic type, hydrologic factors, vegetation community, and topographic features. These data points verified the previously recorded elevation ranges for Black Warrior waterdog.

(2) In addition to the GIS layers listed above, we then excluded impoundments and dams as barriers for the species, as described in Physical or Biological Features, above.

(3) We then drew critical habitat boundaries that captured the locations as discussed above. The proposed critical habitat designation was then mapped using Projected Coordinate System, NAD 1983 UTM Zone 16N with a Projection of Transverse Mercator.

The proposed critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the proposed critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2016-0031, on the Service's Web site at http://www.fws.gov/daphne/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above).

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Black Warrior waterdog. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We are proposing to designate approximately 1,073 river kilometers (669 river miles) in eight units as critical habitat for the Black Warrior waterdog. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Black Warrior waterdog. The areas we propose as critical habitat are:

(1) Lye Branch: approximately 16 river kilometers (rkm) (10 river miles (rmi)) of stream and river habitat. The unit consists of the headwaters of Lye Branch to the confluence of Big Sandy Creek.

(2) Lake Tuscaloosa: approximately 108 rkm (67 rmi) of stream and river habitat. The unit consists of the headwaters of North River to Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa Lake.

(3) Yellow Creek: approximately 30 rkm (19 rmi) of stream and river habitat. This unit is from the headwaters of Yellow Creek to Holt Lake.

(4) Lost Creek: approximately 93 rkm (58 rmi) of stream and river habitat. This unit is from the headwaters of Lost Creek to Bankhead Lake.

(5) Locust Fork: approximately 391 rkm (243 rmi) of stream and river habitat. This unit is from the headwaters of Locust Fork to Bankhead Lake, from the headwaters of Slab Creek to the confluence of Locust Fork, from the headwaters of Blackburn Fork to the confluence of Locust Fork, and from the headwaters of Gurley Creek to the confluence of Locust Fork.

(6) Mulberry Fork: approximately 183 rkm (114 rmi) of stream and river habitat. This unit consists of the headwaters of Mulberry Fork to Bankhead Lake, and from Little Blackwater Creek to the confluence of Blackwater Creek.

(7) Blackwater Creek: approximately 128 rkm (80 rmi) of stream and river habitat. This unit consists of the headwaters of Blackwater Creek to the confluence of Mulberry Fork, from the headwaters of Brown Creek to the confluence of Blackwater Creek.

(8) Sipsey Fork: approximately 124 rkm (78 rmi) of stream and river habitat. The unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake, from the headwaters of Brushy Creek to Lewis Smith Lake, from the headwaters of Rush Creek to the confluence of Brushy Creek, and from the headwaters of Capsey Creek to the confluence of Brushy Creek.

All of the areas proposed for designation as critical habitat for the Black Warrior waterdog include stream and river channels within the normal high water line.

Table 1 shows the occupancy status of each proposed unit and proposed units that overlap with existing critical habitat units for other federally listed species.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Black Warrior waterdog, below. All units are within private ownership, except Unit 8, which also includes Federal ownership.

Unit 1 includes 16 rkm (10 rmi) of stream and river habitat consisting of the headwaters of Lye Branch to the confluence of Big Sandy Creek, and is below the fall line. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), specimens were historically collected from this area. This location is the only historical site below the fall line, which makes it unique for the species. If any waterdogs still persist in this area, the genetic material would be essential in the recovery of the Black Warrior waterdog. Lye Branch contains leaf litter and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime. The instream flow consists of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog in that it provides shelter, breeding, and foraging habitat that would allow for reintroduction and recovery activities for the Black Warrior waterdog.

Unit 2 includes 108 rkm (67 rmi) of stream and river habitat. The unit consists of the headwaters of North River to Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa Lake. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), specimens were historically collected from this area. North River and Carroll Creek contain abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. This unit would provide habitat for reintroduction and recovery activities of the Black Warrior waterdog.

Unit 3 includes 30 rkm (19 rmi) of stream and river habitat. The unit consists of the headwaters of Yellow Creek to Holt Lake. This area is occupied at the time of listing (i.e., currently occupied). Godwin (2016, pers. comm.) reported a capture of a Black Warrior waterdog in this area. This area contains the following physical or biological features that are essential for the Black Warrior waterdog: Abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime inclusive of both surface runoff and ground water sources and exclusive of flushing flows caused by stormwater runoff.

Threats to the physical and biological features in proposed Unit 3 that may require special management considerations or protection include:

• Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

• Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

• Significant alteration of water quality; and

• Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

Unit 4 includes 93 rkm (58 rmi) of stream and river habitat. The unit consists of headwaters of Lost Creek downstream to Bankhead Lake. This area is unoccupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdogs were historically captured in this area. This area contains abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. It would provide habitat for reintroduction and recovery activities for the Black Warrior waterdog.

Unit 5 includes 391 rkm (243 rmi) of stream and river habitat. The unit consists of the headwaters of Locust Fork to Bankhead Lake, from the headwaters of Slab Creek to the confluence of Locust Fork, from the headwaters of Blackburn Fork to the confluence of Locust Fork, and from the headwaters of Gurley Creek to the confluence of Locust Fork. This area is occupied at the time of listing (i.e., currently occupied). Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdog specimens have been collected from the Locust Fork area. This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

Threats to the physical and biological features in proposed Unit 5 that may require special management considerations or protection include:

• Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

• Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

• Significant alteration of water quality; and

• Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

Unit 6 includes 183 rkm (114 rmi) of stream and river habitat consisting of the headwaters of Mulberry Fork to Bankhead Lake, and from Little Blackwater Creek to the confluence of Blackwater Creek. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdog specimens were historically collected here. This area contains abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. This unit would provide habitat for reintroduction and recovery activities of the Black Warrior waterdog.

Unit 7 includes 128 rkm (80 rmi) of stream and river habitat. The unit consists of the headwaters of Blackwater Creek to the confluence of Mulberry Fork, and from the headwaters of Brown Creek to the confluence of Blackwater Creek. This area is occupied at the time of listing based on a literature review by Bailey (2000, p. 1). Godwin (2014, pers. comm.) reported that Black Warrior waterdogs were still present based on eDNA results. This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

Threats to the physical and biological features in proposed Unit 7 that may require special management considerations or protection include:

• Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

• Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

• Significant alteration of water quality; and

• Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

Unit 8 includes 124 rkm (78 rmi) of stream and river habitat. The unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake, from the headwaters of Brushy Creek Lewis Smith Lake, from the headwaters of Rush Creek to the confluence of Brushy Creek, and from the headwaters of Capsey Creek to the confluence of Brushy Creek. This area falls within the boundary of Bankhead National Forest, although some areas are private inholdings.

This area is occupied at the time of listing, based on recent captures (Godwin 2016, pers. comm.). This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

Threats to the physical and biological features in proposed Unit 8 that may require special management considerations or protection include:

• Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

• Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

• Significant alteration of water quality; and

• Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

Section 7(a)(2) of the Act requires Federal agencies to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

On February 11, 2016 (81 FR 7214), we published a final rule setting forth a new definition of destruction or adverse modification, which became effective on March 14, 2016. “Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Black Warrior waterdog. These activities include, but are not limited to:

(1) Actions that would significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the species' prey items and result in direct or cumulative adverse effects to the Black Warrior waterdog and its lifecycle.

(2) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Black Warrior waterdog by increasing the sediment deposition to levels that would adversely affect its ability to complete its lifecycle.

(3) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the Black Warrior waterdog and/or its habitat. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the Black Warrior waterdog or its prey items.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute, as well as the legislative history, is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In this proposed rule, we have not considered any areas for exclusion from critical habitat.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct an optional 4(b)(2) exclusion analysis.

For this designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Black Warrior waterdog and draft Waterdog Screening Memorandum, dated June 30, 2015. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. The screening analysis also assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species which may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, constitutes our draft economic analysis of the proposed critical habitat designation for the Black Warrior waterdog and is summarized in the narrative below.

Executive Orders (E.O.) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with these requirements, our effects analysis may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. First we identified, in the draft Waterdog Screening Memorandum, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (U.S. Forest Service, U.S. Bureau of Reclamation); (2) roadway and bridge construction; (3) agriculture; (4) grazing; (5) conservation/restoration; (6) instream dams and diversions; (7) storage and distribution of chemical pollutants; (8) dredging; (9) commercial or residential development; (10) timber harvest; (11) recreation (including sport fishing and sportfish stocking, off-road vehicle activity); (12) mining; (13) in-water construction; (14) utilities; (15) water quality; and (16) water quanity/supply. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement, because critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Black Warrior waterdog is present, if the species is listed, then Federal agencies would already be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would merely be incorporated into that consultation process. Therefore, for occupied and unoccupied habitat disproportionate impacts to any geographic area or sector are not likely as a result of this critical habitat designation.

In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the Black Warrior waterdog's critical habitat. Because the designation of critical habitat for the Black Warrior waterdog was proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical and biological features identified for critical habitat are the same features essential for the life requisites of the species; and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Black Warrior waterdog would also likely adversely affect the essential physical and biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation in turn has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the Black Warrior waterdog is likely to result, annually, in less than two formal consultations, 23 informal consultations, and 206 technical assistance efforts related to silviculture, mining, impoundments, commercial and residential development, pipelines, agriculture and other activities that impact water quality. According to the finding in the draft screening analysis, the administrative cost of addressing adverse modification in the consultations will cost between about $410 to $9,000 per consultation. The incremental administrative cost is not likely to exceed $150,000 annually. This designation of critical habitat is not likely to cause more requirements under State or local regulations, nor is the designation expected to have perceptional effects on the markets.

Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. As discussed above, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors (DEA).

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Under section 4(b)(2) of the Act, we consider whether there are lands within the proposed critical habitat designation where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Black Warrior waterdog are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not intend to exercise her discretion to exclude any areas from the final designation based on impacts on national security.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any habitat conservation plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the Black Warrior waterdog, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise her discretion to exclude any areas from the final designation based on other relevant impacts.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data and analyses. We have invited these peer reviewers to comment during this public comment period.

We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if adopted, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

For the above reasons and based on currently available information, we certify that, if adopted, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this proposed designation of critical habitat to significantly affect energy supplies, distribution, or use. Oil and gas pipelines crossing the proposed critical habitat can be buried under the river channel (directional bored) and the contours of the channel bed returned to their natural state. Also, there are existing impoundments for power generation within the Basin but outside the proposed critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, and critical habitat would not shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule would significantly or uniquely affect small governments because the lands adjacent to the river and streams being proposed for critical habitat are primarily owned by private landowners, which do not fit the description of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Black Warrior waterdog in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, nor does it establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this proposed designation of critical habitat for the Black Warrior waterdog would not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Alabama. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, this proposed rule would not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.

As discussed above, we have determined that there are no tribal lands that meet the criteria under the Act for inclusion in critical habitat.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

The primary authors of this proposed rulemaking are the staff members of the Alabama Ecological Services Field Office.

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

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The Black Warrior waterdog's biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(b)(5) of the Act requires us to hold one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers will inform our determination. We invite comments from the peer reviewers during this public comment period.

The Black Warrior waterdog (then known as the Sipsey Fork waterdog) was first identified as a Category 2 species in our 1982 Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454, December 30, 1982). Category 2 candidates were defined as taxa for which we had information that proposed listing was possibly appropriate, but for which substantial data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained on subsequent annual candidate notices of review (CNORs) (56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Black Warrior waterdog was no longer a candidate species.

In 1999, the Black Warrior waterdog was again added to the candidate list (64 FR 57534, October 25, 1999). At present, candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing rule is precluded by other higher priority listing activities. The Black Warrior waterdog was included in all of our subsequent annual CNORs (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015). On May 11, 2004, we were petitioned to list the Black Warrior waterdog. The petitioner provided information the Service already had in its files and had used to identify the species as warranted for listing. As a result, no further action was taken on the petition. The Black Warrior waterdog has a listing priority number of 2, which means that the candidate is a species with threats that are both imminent and high in magnitude.

The Black Warrior waterdog is a large, aquatic, nocturnal salamander that permanently retains a larval form and external gills throughout its life (Conant and Collins 1998, pp. 419-420). Its head and body are depressed; its tail is compressed laterally, and each of its four legs has a foot with four toes. Larval Black Warrior waterdogs (28 to 48 millimeters (mm) (1 to 2 inches (in) total length)) are dark brown or black on their dorsum (upper surfaces) and have two light stripes running along their sides (Bailey 2000, p. 1). Adults may reach a maximum of 240 mm (9.5 in) total length; subadults (40 to 100 mm (1.5 to 4 in) total length) do not have the stripes that are present on larvae and are not conspicuously marked, although they do have a dark stripe extending from the nostril through the eye to the gills. Adults are usually brown, may be spotted or unspotted, and retain the dark eye stripe (Bailey 2000, p. 1). The ventral surface of all age classes is plain white.

In 1937, Viosca (1937, pp. 120-138) described the Black Warrior waterdog as Necturus alabamensis. In subsequent years, the name N. alabamensis was mistakenly applied to other waterdogs within the peer-reviewed literature. The taxonomy of the Black Warrior waterdog was clarified by Bart et al. (1997, pp. 192-201), and the original description by Viosca (1937, pp. 120-138) remains valid. The available taxonomic information on N. alabamensis has been carefully reviewed, and we conclude that this species is a valid taxon.

The Black Warrior waterdog (waterdog) is found only within streams within the Black Warrior River Basin (Basin) in Alabama. The waterdog inhabits streams above the Piedmont Fall Line (the contact between the Coastal Plain and the adjacent Upland provinces) within the Basin in Alabama, including parts of the North River, Locust Fork, Mulberry Fork, and Sipsey Fork drainages and their tributaries.

Waterdog habitat is similar to that of the flattened musk turtle (Sternotherus depressus), a species listed as threatened under the Act (52 FR 22418; June 11, 1987) and which is restricted to permanent streams above the Fall Line in the Black Warrior Basin (Mount 1975, p. 303). The waterdog received little attention between the time it was described in 1937 and the mid-1980s, when it was found during surveys in the Tennessee-Tombigbee Waterway (Ashton and Peavy 1985, pp. 1-15). During this time, reference to the species, beyond field guides and summary descriptions, could be found in only three scientific publications and one unpublished doctoral dissertation (Hecht 1958, pp. 4, 17; Neil 1963, pp. 166-174; Gunter and Brode 1964, pp. 114-126; Brode 1969, pp. 21-22, 62-64, 132).

There are a total of 11 historical records from sites in Blount, Tuscaloosa, Walker, and Winston Counties, Alabama. The historical waterdog records are sites from 10 streams or major segments: Sipsey Fork (two sites) of the Black Warrior River and Brushy Creek (a tributary to Sipsey Fork) in Winston County; Locust Fork and Blackburn Fork of the Little Warrior River in Blount County; Mulberry Fork, Lost Creek, and Blackwater Creek in Walker County; and Yellow Creek, North River, and Black Warrior River in Tuscaloosa County (Viosca 1937, pp. 120-122, 137-138; Ashton and Peavy 1985, pp. 1-15; Bailey 1992, pp. 7-9, 16-27; Bailey 1995, pp. 16-27; Bart et al. 1997, pp. 194-195, 198-200; Guyer 1997, p. 9; Bailey 2000, pp. 3-5). Only two of these records (Black Warrior River “near Tuscaloosa” in 1914 and 1937, and Mulberry Fork “at Cordova” in 1938) were documented prior to the mid-1980s. These localities have since been inundated by impoundments.

Bailey (2000, pp. 1-24) conducted a habitat assessment of the 11 sites verified as Black Warrior waterdog localities prior to 1993. Bailey assessed the sites using subjective impressions of habitat suitability using parameters such as stream width and depth, water quality, substrate, structure (crevices, logs, etc.), and invertebrate fauna. Sites were stratified into four categories: Good to excellent, moderate, poor to unsuitable, and impounded. Bailey concluded that one (9 percent) of the sites was good to excellent, four (36 percent) were of moderate quality, two (18 percent) were poor to unsuitable, and four (36 percent) were in impoundments.

At least 112 sites have been sampled for the Black Warrior waterdogs since 1990 (1990, 1991, 1992, 1994, 1996, 1997, 1998, 2008, 2009, 2011, 2012, and 2013) (Bailey 1995, pp. 16-27; Guyer 1997, pp. 19-21 and 1998, pp. 6-7; Durflinger-Moreno et al. 2006, pp. 73-74; Stoops et al. 2010, p. 6; Alabama Natural Heritage Program 2011, p. 4; 78 FR 70104, November 22, 2013, p. 70125; Godwin 2014, pers. comm.; Godwin 2013b, p. 1). Survey sites included all stream localities within the range of the species that approached or intersected roads and had appropriate habitat. Since 1990, the species has been reported from only 14 sites. These sites are in Blount (Blackburn Fork of the Little Warrior River), Marshall (Slab Creek, tributary to Locust Fork), Tuscaloosa (Yellow Creek, North River, Carroll Creek, Lye Branch, Mulberry Fork), Walker (Lost Creek, Little Blackwater Creek), and Winston (Sipsey Fork, Blackwater Creek, Browns Creek, Brushy Creek, Capsey Creek) Counties, Alabama. Guyer (1997, pp. 3-4) did a statistical analysis of all waterdog field survey data. The relationship between cumulative number of site visits and the cumulative number of sites containing waterdogs indicated that 200 additional surveys would be needed to discover a single new locality for the species (Guyer 1997, p. 4).

No waterdogs were recently captured at any historic localities outside of William Bankhead National Forest (BNF). Therefore, we believe the populations are in decline outside of BNF. Only through the use of environmental DNA (eDNA) have we been able to determine that the species is still present at some historic locations. Environmental DNA is a surveillance tool used to monitor for the genetic presence of an aquatic species. According to Strickler (2015, p. 1),”Environmental DNA has proven to be a sensitive, accurate, and cost-efficient tool for species detection in aquatic environments and is especially attractive because it's non-invasive and poses no risk to aquatic animals. Even when an aquatic animal can't be seen or heard, it leaves traces of itself in the water by shedding skin, excreting waste, releasing gametes and decomposing. Investigators collect a water sample to detect the target species' DNA and determine whether the species has recently been in the water body.” Field surveys conducted between 2008 and 2012 at historical localities indicated only one population was still persisting in the BNF, Winston County (Stoops et al. 2010, p. 1-6; Godwin 2014, pers. comm.; Godwin 2013a, p. 1 and 2013b, p. 1). Additionally, the use of eDNA in 2013 and 2014 indicated that Black Warrior waterdogs were still present in Locust Fork, Gurley Creek, Rush Creek (BNF property), and Yellow Creek (Godwin 2014, pers. comm.), although no waterdogs were captured at the time.

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

The viability of any Black Warrior waterdog population, including Sipsey Fork population, is unknown.

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

Very little is known about the life history of the Black Warrior waterdog. Additionally, data are generally limited for other species of the southeastern Necturus waterdogs, as well.

Reproduction in the Black Warrior waterdog is aquatic. Egg disposition sites and clutch sizes are unknown. However, in the closely related Gulf Coast waterdog (Necturus beyeri), females attach their eggs singly to the undersides of underwater substrate (summarized in Guyer 2005, p. 868). Sexually active Black Warrior waterdog adults have been found in rock crevices (Bailey 2005, p. 867), and thus egg deposition may occur at these sites. Clutch sizes ranging from 4 to 40 eggs were reported in a summary of research conducted on the Gulf Coast waterdog (Guyer 2005, p. 868). Ashton and Peavy (1986, p. 64) collected post hatchling Black Warrior waterdog larvae in December; this suggests that nesting may occur in late spring or summer. Reproductive maturity is probably attained in the third winter or at 2.5 years of age (Bailey 2005, p. 867).

Aestivation (spending the summer in a state of inactivity) in Black Warrior waterdogs is suspected, as no specimens have been collected during the summer (Bailey 2005, p. 867). A similar seasonal pattern of activity primarily in winter and spring is also seen in other species of Necturus (Dundee 2005, p. 872; Guyer 2005, p. 868).

Larval and adult Black Warrior waterdogs are assumed to be opportunistic carnivores, but prey taken in the wild has not been described. Adults are attracted to traps baited with fish-flavored cat food (Bailey 2005, p. 867). Captive Black Warrior waterdogs have eaten small fish and earthworms (Bailey 2005, p. 867). Crayfish, isopods, amphipods, freshwater clams, and insects (including mayflies, caddisflies, dragonfly naiads, dytiscid beetles, and midges) have been reported as prey items in Gulf Coast waterdogs (Guyer 2005, p. 868).

Home ranges of Black Warrior waterdogs are likely small as in other species of the southeastern Necturus. As much more is known about the Gulf Coast waterdog, we are basing our analysis on its mark-recapture study where all recaptures were within 64 m (210 ft) of the original capture and release site (summarized in Guyer 2005, p. 868).

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

Water quality degradation is the primary threat to the continued existence of the Black Warrior waterdog. Bailey (2000, pp. 19-20) considered water quality degradation to be the primary reason for the extirpation of this species over much of its historical range in the upper Black Warrior River system. Changes in water chemistry and flow patterns, resulting in a decrease in water quality and quantity have detrimental effects on salamander ecology because they can render aquatic habitat unsuitable for salamanders. Substrate modification is also a major concern for aquatic salamander species (Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34). Unobstructed interstitial space (pertaining to being between things, especially between things that are normally close) is a critical component of the habitat for the Black Warrior waterdog, because it provides cover from predators and habitat for their macroinvertebrate prey items within the sites. When the interstitial spaces become compacted or filled with fine sediment, the amount of available foraging habitat and protective cover for salamanders with these behaviors is reduced, resulting in population declines (Welsh and Ollivier 1998, pp. 1, 128; Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34). Most streams surveyed for the Black Warrior waterdog showed evidence of water quality degradation, and many appeared biologically depauperate (limited aquatic species diversity) (Bailey 1992, p. 2 and 1995, p. 11; Durflinger-Moreno et al. 2006, p. 78).

Sources of point (point source discharge) and nonpoint (land surface runoff) pollution in the Basin have been numerous and widespread. Point pollution is generated from inadequately treated effluent from industrial plants, sanitary landfills, sewage treatment plants, and drain fields from individual private homes (Service 2000, pp. 12-13). Nonpoint pollution originates from agricultural activities, poultry and cattle feedlots, abandoned mine runoff, construction, silviculture, failing septic tanks, and contaminated runoff from urban areas (Deutsch et al. 1990, pp. 1-62, Upper Black Warrior Technical Task Force 1991, p. 1; O'Neil and Sheppard 2001, p. 2). These sources contribute pollution to the Basin via sediments, fertilizers, herbicides, pesticides, animal wastes, septic tank and gray water leakage, and oils and greases. Water quality and native aquatic fauna have declined as a result of this pollution, which causes nitrification, decreases in dissolved oxygen concentration, and increases in acidity and conductivity. These alterations have a direct effect on the survival of Black Warrior waterdogs, which, due to their highly permeable skin (Duellman and Trueb 1986, p. 197) and external gills, are very sensitive to declines in water quality and oxygen concentration.

Urbanization is a significant source of water quality degradation that can reduce the survival of aquatic organisms, such as the Black warrior waterdog (Bowles et al. 2006, p. 119; Chippindale and Price 2005, pp. 196-197). Urban development leads to various stressors on aquatic systems, including increased frequency and magnitude of high flows in streams, increased sedimentation, increased contamination and toxicity, and changes in stream morphology and water chemistry (Coles et al. 2012, pp. 1-3, 24, 38, 50-51). Urbanization can also impact aquatic species by negatively affecting their invertebrate prey base (Coles et al. 2012, p. 4). Urbanization also increases the sources and risks of an acute or catastrophic contamination event, such as a leak from an underground storage tank or a hazardous materials spill on a highway. Several researchers have examined the negative impact of urbanization on stream salamander habitat by making connections between salamander abundances and levels of development within the watershed. In a 1972 study on the dusky salamander (Desmognathus fuscus) in Georgia, Orser and Shure (p. 1,150) found a decrease in stream salamander density with increasing urban development. A similar relationship between salamander populations and urbanization was found in another study on the dusky salamander, two-lined salamander (Eurycea bislineata), southern two-lined salamander (Eurycea cirrigera), and other species in North Carolina (Price et al. 2006, pp. 437-439; Price et al. 2012a, p. 198), Maryland, and Virginia (Grant et al. 2009, pp. 1,372-1,375). Willson and Dorcas (2003, pp. 768-770) demonstrated the importance of examining disturbance within the entire watershed as opposed to areas just adjacent to the stream by showing that salamander abundance in the dusky and two-lined salamanders is most closely related to the amount and type of habitat within the entire watershed.

The large population centers such as Birmingham, Tuscaloosa, and Jasper contribute substantial runoff to the Basin. The watershed occupied by these three cities contains more industrial and residential land area than other river basins in Alabama. Streams draining these areas have a history of serious water quality problems, as described above. Species of fish, mussels, and snails (Mettee et al. 1989, pp. 14-16; Hartfield 1990, pp. 1-8), and populations of the flattened musk turtle (Service 1990, p. 3), have been extirpated from large areas of the watershed primarily due to water quality degradation. For example, Mettee et al. (1989, pp. 14-16) noted the absence of at least nine fish species from streams draining the Birmingham metropolitan area where they had previously been common, and Hartfield (1990, pp. 1-8) documented the extirpation of 39 to 40 species of mussels from individual tributaries of the Black Warrior River. In addition, highway construction may reroute streams or change their shape.

Forestry operations and road construction are also sources of nonpoint pollution when best management practices (BMPs) are not followed to protect streamside management zones (Hartfield 1990, pp. 4-6; Service 2000, p. 13). Logging can cause erosion, siltation, and streambed structural changes from the introduction of tree slash. Forestry road construction, stream crossings, and bridge replacements can also result in increased sedimentation, and runoff may introduce toxic chemicals into streams. According to Alabama's BMPs for forestry, stream management zones (SMZs) should be 35 ft (50 ft for sensitive areas). Recently, the forest industry has begun to self-regulate SMZs through a certification program in which mills will not accept timber from foresters who do not comply with SMZs.

Surface mining represents another threat to the biological integrity of streams in the Basin and has undoubtedly, in the past, affected the distribution of the Black Warrior waterdog (Bailey 1995, p. 10). Strip mining for coal results in hydrologic problems (i.e., erosion, sedimentation, decline in groundwater levels, and general degradation of water quality) that affect many aquatic organisms (Service 2000, p. 12). Runoff from coal surface mining generates pollution through acidification, increased mineralization, and sediment loading. Impacts are generally associated with past activities and abandoned mines, since presently operating mines are required to employ environmental safeguards established by the Federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) and the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.) (Service 2000, p. 12). Old, abandoned mines will continue to contribute pollutants to streams into the future.

Recently, new coal mines, which have the potential of discharging additional pollutants into the waters within the range of the Black Warrior waterdog, have been proposed in the Sipsey Fork and the Mulberry Fork (Dillard 2011, pers. comm.; Alabama Surface Mining Commission 2012, pp. 1-4).

Sedimentation has probably caused similar declines for Black Warrior waterdogs as it has for the flattened musk turtle, which also occurs in the upper Basin. Sedimentation in this system has negatively affected the flattened musk turtle by: (1) Reduction of mollusks and other invertebrates used as food; (2) physical alteration of rocky habitats where animals forage and take cover, and (3) accumulation of substrate in which chemicals toxic to animals and their prey persist (Dodd et al. 1988, pp. 1-61). The Sipsey Fork of the Black Warrior River is the best remaining locality for the Black Warrior waterdog (Guyer 1998, p. 2). Bailey and Guyer (1998, pp. 77-83) completed a study of the flattened musk turtle at this site. They found that the turtle population was declining and suggested that habitat quality is also deteriorating. Because of similar habitat use, deteriorating habitat quality may likewise affect the Black Warrior waterdog.

Black Warrior waterdogs are vulnerable to sedimentation, and the associated pollution concentrated in sediments, as they spend virtually all of their lives at the stream bottom and would be in almost constant contact with any toxic substances that may be present (Bailey 1995, p. 10). The skin of amphibians is highly permeable, and water is exchanged readily with the environment. As a result, the respiration (breathing) and osmoregulation (balance of body fluids) of Black Warrior waterdogs would be negatively affected by toxic sediments. Excessive sediments also impact the hard stream and river bottoms by making the habitat unsuitable for feeding or reproduction of Black Warrior waterdogs. For example, sediments have been shown to affect respiration, growth, reproductive success, and survival of aquatic insects and fish (Waters 1995, pp. 173-175) that serve as food sources for the waterdog (Bailey 2005, p. 867). Potential sources of pollution and associated sedimentation within a watershed include virtually all activities that disturb the land surface, and all localities currently occupied by the Black Warrior waterdog are affected by varying degrees by sedimentation (O'Neil and Sheppard 2001, Appendix B, p. 5). Sedimentation or siltation is one of the most severe threats to the Black Warrior River (Black Warrior Riverkeeper 2012, p. 1). The Black Warrior River watershed receives significant pollutant loading from activities related to the human population and land-use activities, including sedimentation from construction, forestry, mining, agriculture, and channelization of stream segments (Black Warrior River Watershed Management Plan n.d., p. 4.3).

Creation of large impoundments, behind Bankhead, Lewis, and Holt dams, within the Basin has flooded thousands of square hectares (acres) of habitat previously considered appropriate for the Black Warrior waterdog. Hartfield (1990, p. 7) summarized the number of miles of streams affected by impoundments in the Basin. He found that the entire main channel of the Black Warrior River, over 272 kilometers (km) (170 miles (mi)), has been affected. Impoundments do not have the shallow, flowing water preferred by the species. As a result, they are likely marginal or unsuitable habitat for the salamander. The abundance of predatory fish in impoundments further renders these lakes unsuitable for the Black Warrior waterdog. Impoundments have been entrapments for waterdogs.

Two historical populations of the Black Warrior waterdog have been lost due to impoundments. Of the remaining historical populations, only one appears to be holding on in numbers sufficient enough to be captured regularly (Sipsey Fork on BNF). A second population is present on Locust Fork, but the numbers of waterdogs present appears low, based on the erratic capture success at the site. Through the use of eDNA, Godwin (2014, pers. comm.) identified a historical site on Yellow Creek as having Black Warrior waterdogs present. A couple years later, in 2016, a Black Warrior waterdog was indeed captured in Yellow Creek. Further, Godwin also identified two new sites in the Basin through the eDNA method, but as of yet, no waterdogs have been captured (recently) at any of the eDNA sites. Based on evolution biology, the current known and suspected populations are isolated and fragmented by human-made barriers, further compounding the effects of inbreeding and contributing to the species' decline.

The historical loss of habitat is currently, and projected to continue to be, a threat to the Black Warrior waterdog. Habitat loss also amplifies the threat from point and nonpoint source water and habitat quality degradation, accidental spills, and violation of permitted discharges. Due to the limited extent of the habitat currently occupied by the species and the severity and magnitude of this threat, we consider that the present or threatened destruction, modification, or curtailment of habitat and range represents a threat to the Black Warrior waterdog. While changes to management and operating procedures have reduced impacts to the river system, ongoing activities continue to impact water quality.

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

No diseases or incidences of predation have been reported for the Black Warrior waterdog. Also, Bart and Holzenthal (1985, p. 406) found that there is no natural evidence of predation on Necturus spp. by fish in creeks and streams. Therefore, the best available data do not indicate that disease or predation is a threat to the Black Warrior waterdog.

Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the Black Warrior waterdog discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account, “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws and regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. An example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

The Federal Surface Mining Control and Reclamation Act of 1977, as amended December 22, 1987, requires all permitted mining operations to minimize disturbances and adverse impacts to fish, wildlife, and related environmental values, as well as implement enhancement measures where practicable. It further recognizes the importance of land and water resources restoration as a high priority in reclamation planning. The continued decline of many species, including the flattened musk turtle, fish, and a number of mussels in the Black Warrior Basin (Dodd et al. 1988, pp. 55-61; Mettee et al. 1989, pp. 12-13; Hartfield 1990, pp. 1-8; Bailey and Guyer 1998, pp. 77-83; Service 2000, pp. 12-13), is often attributed to mining activities, even though this law in effect.

The Alabama Department of Conservation and Natural Resources (ADCNR) recently added the Black Warrior waterdog to its list of non-game State protected species (ADCNR 2012, pp. 1-4). Although this change will make it more difficult to obtain a collecting permit for the species, it does not offer any additional protection for habitat loss and degradation. The ADCNR also recognizes the Black Warrior waterdog as a Priority 2 species of high conservation concern in its State Wildlife Action Plan due to its rarity and restricted distribution (ADCNR 2005, p. 298). However, this designation also does not offer any regulatory protections.

Stream segments within the Black Warrior River drainage currently occupied by the Black Warrior waterdog have been assigned water-use classifications of fish and wildlife (F&W) by the Alabama Department of Environmental Management (ADEM) under the authority of the Clean Water Act of 1972. The F&W designation establishes minimum water quality standards that are believed to be protective of aquatic species. In the Locust Fork, Mulberry Fork, and other tributaries of the Black Warrior River occupied by the Black Warrior waterdog, a combined total of 275 km (171 mi) have been identified on the Alabama 303(d) List (a list of water bodies failing to meet their designated water-use classifications) as impaired by siltation and nutrients (ADEM 2010, pp. 1-3). The sources of these impairments have been identified as runoff from agricultural fields, abandoned surface mines, and industrial or municipal sites. Multiple stream reaches within the occupied habitat of the Black Warrior waterdog (Locust Fork, Mulberry Fork, Yellow Creek, and North River) fail to meet current regulatory standards.

Similarly, even with current regulations, surviving populations are negatively affected by discharges, highway construction, mining (current and unreclaimed sites), and other activities with a Federal nexus (see discussion under Factor A, above).

Black Warrior waterdogs and their habitats are partially protected by Federal and State laws and regulations. However, after evaluating the information available on the implementation of these authorities, we determined that these regulatory mechanisms do not address the threats to the species.

The remaining Black Warrior waterdog populations are isolated from each other by unsuitable habitat created by impoundments, pollution, and other factors as described under the Factor A discussion, above. Waterdog population densities are low even in the best localities, and factors related to low population compound these threats.

Species that are restricted in range and population size are more likely to suffer loss of genetic diversity due to genetic drift, potentially increasing their susceptibility to inbreeding depression, decreasing their ability to adapt to environmental changes, and reducing the fitness of individuals (Soule 1980, pp. 157-158; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is likely that some of the Black Warrior waterdog populations are below the effective population size required to maintain long-term genetic and population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 105-107). The long-term viability of a species is based on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). These separate populations are essential for the species to recover and adapt to environmental change (Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The level of isolation and fragmentation seen in this species makes natural repopulation following localized extirpations virtually impossible without human intervention.

Droughts cause decreases in water flow and dissolved oxygen levels and increases in temperature in the river system. Studies of other aquatic salamander species have reported decreased occupancy, loss of eggs, decreased egg-laying, and extirpation from sites during periods of drought (Camp et al. 2000, p. 166; Miller et al. 2007, pp. 82-83; Price et al. 2012b, pp. 317-319).

Associated with urbanization is the development of transportation system, including roads, rails, airports, locks, and docks. Accidents, crashes, and derailments, resulting in spills, occur along these transportation corridors. Since 1990, there have been over 1,200 spills reported, to the U.S. Coast Guard National Response Center, in the Basin area. One of several spills that have occurred in the Blackwater Basin was an event in the Black Warrior River in 2013. Approximately 164 gallons of crude oil were accidently pumped into the river. Emergency response teams cleaned the river, but a sheen of crude oil remained visible (Taylor 2013, pers. comm.) (http://www.tuscaloosanews.com/article/20130617/NEWS/130619792). Today, the threat from spills remains unchanged.

Our analyses under the Act include consideration of ongoing and projected changes in climate.

According to the IPCC (2013, p. 4), “Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.” Average Northern Hemisphere temperatures during the second half of the 20th century were very likely higher than during any other 50-year period in the last 500 years and likely the highest in at least the past 1,300 years (IPCC 2007b, p. 1). It is very likely that from 1950 to 2012, cold days and nights have become less frequent and hot days and hot nights have become more frequent on a global scale (IPCC 2013, p. 4). It is likely that the frequency and intensity of heavy precipitation events has increased over North America (IPCC 2013, p. 4).

The IPCC (2013, pp. 15-16) predicts that changes in the global climate system during the 21st century are very likely to be larger than those observed during the 20th century. For the next two decades (2016 to 2035), a warming of 0.3 degrees Celsius (°C) (0.5 degrees Fahrenheit (°F)) to 0.7 °C (1.3 °F) per decade is projected (IPCC 2013, p. 15). Afterwards, temperature projections increasingly depend on specific emission scenarios (IPCC 2007b, p. 6). Various emissions scenarios suggest that by the end of the 21st century, average global temperatures are expected to increase 0.3 °C to 4.8 °C (0.5 °F to 8.6 °F), relative to 1986 to 2005 (IPCC 2013, p. 15). By the end of 2100, it is virtually certain that there will be more frequent hot and fewer cold temperature extremes over most land areas on daily and seasonal timescales, and it is very likely that heat waves and extreme precipitation events will occur with a higher frequency and intensity (IPCC 2013, pp. 15-16).

Climate change has the potential to increase the vulnerability of the Black Warrior waterdog to random catastrophic events (e.g., McLaughlin et al. 2002; Thomas et al. 2004). Climate change is expected to result in increased frequency and duration of droughts and the strength of storms (e.g., Cook et al. 2004). Thomas et al. (2009, p. 112) report that the frequency, duration, and intensity of droughts are likely to increase in the Southeast as a result of global climate change.

We consider the Black Warrior waterdog vulnerable to other natural or manmade factors, because low population densities combined with fragmentation of habitat renders the Black Warrior waterdog populations extremely vulnerable to inbreeding depression (negative genetic effects of small populations) (Wright et al. 2008, p. 833) and catastrophic events such as flood, drought, or chemical spills (Black Warrior River Watershed Management Plan n.d., p. 4.4).

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

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the Black Warrior waterdog is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently impacting the species. The overall range has been significantly reduced, and the remaining habitat and populations face threats from a variety of factors (Factors A and E) acting in combination to reduce the overall viability of the species. The risks of extinction are high because the remaining populations are small, isolated, and have limited potential for recolonization (Factor E). Therefore, on the basis of the best available scientific and commercial information, we propose to list the Black Warrior waterdog as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

We find that a threatened species status is not appropriate for the Black Warrior waterdog because of the species' contracted range, loss of habitat due to water quality degradation (sedimentation, toxins, and nutrients), fragmentation of the populations caused by impoundments, rangewide (not localized) threats, and ongoing threats expected to continue into the future.

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

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

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the 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 also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If this species is listed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Alabama Ecological Services Field 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.

If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Alabama would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Black Warrior waterdog. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the Black Warrior waterdog is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service, U.S. Forest Service, and Bureau of Land Management; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways by the Federal Highway Administration; land management practices supported by programs administered by the U.S. Department of Agriculture; Environmental Protection Agency pesticide registration; and projects funded through Federal loan programs which include, but are not limited to, roads and bridges, utilities, recreation sites, and other forms of development.

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

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

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit, and label requirements, and best management practices; and

(2) Normal residential development and landscape activities, which are carried out in accordance with any existing regulations, permit requirements, and best management practices.

Based on the best available information, the following activities may potentially result in a violation of section 9 the Act; this list is not comprehensive:

(1) Unauthorized introduction of nonnative species that compete with or prey upon the Black Warrior waterdog;

(2) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of this taxa, as defined by section 10(h)(1) of the Act;

(3) Unauthorized destruction or alteration of Black Warrior waterdog habitat that results in destruction or loss of leaf packs and rocky substrate (rock crevices in the creek or stream);

(4) Unauthorized discharge of chemicals or fill material into any waters in which the Black Warrior waterdog is known to occur; and

(5) Actions, intentional or otherwise, that would result in the destruction of eggs or cause mortality or injury to hatchling, juvenile, or adult Black Warrior waterdogs.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(a)(3) of the Act requires the Secretary, at the time a species is listed as endangered or threatened, to designate critical habitat to the maximum extent prudent and determinable. Elsewhere in this issue of the Federal Register, we propose to designate critical habitat for the Black Warrior waterdog.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

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

The primary authors of this proposed rule are the staff members of the Alabama Ecological Services Field Office.

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