Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic Pigtoe

As Enacted ( Federal Register)

Cited authorities 3

Cited in

Published date	22 September 2020
Citation	85 FR 59487
Record Number	2020-19095
Section	Proposed rules
Court	Fish And Wildlife Service,Interior Department

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS–R4–ES–2018–0046;

FF09E21000 FXES11110900000 201]

RIN 1018–BD12

Endangered and Threatened Wildlife

and Plants; Threatened Species Status

With Section 4(d) Rule and Critical

Habitat Designation for Atlantic Pigtoe

AGENCY

: Fish and Wildlife Service,

Interior.

ACTION

: Proposed rule; revisions and

reopening of comment period.

SUMMARY

: We, the U.S. Fish and

Wildlife Service (Service), announce the

reopening of the comment period on our

October 11, 2018, proposed rule to list

the Atlantic pigtoe (Fusconaia masoni)

as a threatened species with a section

4(d) rule, and to designate critical

habitat for the species, under the

Endangered Species Act of 1973, as

amended (Act). In this document, we

present revisions to the section 4(d) rule

language and to the critical habitat

designation we proposed for the species

on October 11, 2018. As a result of the

critical habitat revisions, we now

propose to designate a total of 566 miles

(910 kilometers) as critical habitat for

the Atlantic pigtoe across 18 units

within portions of 14 counties in

Virginia and 17 counties in North

Carolina. This amounts to an increase of

24 miles (38 kilometers) in our proposed

critical habitat designation for the

species. We are reopening the comment

period to allow all interested parties the

opportunity to comment on the October

11, 2018, proposed rule, as well as the

revisions described in this document.

Comments previously submitted need

not be resubmitted, as they will be fully

considered in preparation of the final

rule.

DATES

: The comment period for the

proposed rule published October 11,

2018, at 83 FR 51570 is reopened. So

that we can fully consider your

comments in our final determination,

submit them on or before October 22,

2020. Comments submitted

electronically using the Federal

eRulemaking Portal (see

ADDRESSES

below) must be received by 11:59 p.m.

Eastern Time on the closing date.

ADDRESSES

Document availability: You may

obtain copies of the October 11, 2018,

proposed rule and associated

documents on the internet at http://

www.regulations.gov under Docket No.

FWS–R4–ES–2018–0046 or by mail

from the Raleigh Ecological Services

Field Office (see

FOR FURTHER

INFORMATION CONTACT

Written comments: You may submit

written comments by one of the

following methods:

(1) Electronically: Go to the Federal

eRulemaking Portal: http://

www.regulations.gov. In the Search box,

enter FWS–R4–ES–2018–0046, which is

the docket number for this rulemaking.

Then, click on the Search button. On the

resulting page, in the Search panel on

the left side of the screen, under the

Document Type heading, click on the

Proposed Rule box to locate this

document. You may submit a comment

by clicking on ‘‘Comment Now!’’

(2) By hard copy: Submit your

comments by U.S. mail to: Public

Comments Processing, Attn: FWS–R4–

ES–2018–0046, U.S. Fish and Wildlife

Service, MS: JAO/1N, 5275 Leesburg

Pike, Falls Church, VA 22041–3803.

We request that you send comments

only by the methods described above.

We will post all comments on http://

www.regulations.gov. This generally

means that we will post any personal

information you provide us (see Public

Comments, below, for more

information).

FOR FURTHER INFORMATION CONTACT

: Pete

Benjamin, Field Supervisor, U.S. Fish

and Wildlife Service, Raleigh Ecological

Services Field Office, 551F Pylon Drive,

Raleigh, NC 27606; telephone 919–856–

4520. Persons who use a

telecommunications device for the deaf

(TDD) may call the Federal Relay

Service at 800–877–8339.

SUPPLEMENTARY INFORMATION

Public Comments

We will accept written comments and

information during this reopened

comment period on our October 11,

2018, proposed listing determination

with section 4(d) rule and designation of

critical habitat for the Atlantic pigtoe

(83 FR 51570), the revisions to the

section 4(d) rule and proposed critical

habitat designation that are described in

this document, and our draft economic

assessment (DEA) of the proposed

critical habitat designation. We will

consider information and

recommendations from all interested

parties. We are particularly interested in

comments concerning:

(1) The Atlantic pigtoe’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;

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 are

necessary and advisable for the

conservation of the Atlantic pigtoe to

include in a section 4(d) rule for the

species. In particular, we request

information concerning the extent to

which we should include any of the

section 9 prohibitions in the 4(d) rule or

whether any other forms of take should

be excepted from the prohibitions in the

4(d) rule.

(6) The reasons why we should or

should not designate habitat as ‘‘critical

habitat’’ under section 4 of the Act,

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.

(7) Specific information on:

(a) The amount and distribution of

Atlantic pigtoe habitat;

(b) What areas, that were occupied at

the time of listing and that contain the

physical or biological features essential

to the conservation of the species,

should be included in the designation

and why;

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.

(8) Land use designations and current

or planned activities in the subject areas

and their possible impacts on proposed

critical habitat.

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(9) 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 may be impacted.

(10) Information on the extent to

which the description of probable

economic impacts in the DEA is a

reasonable estimate of the likely

economic impacts and the description

of the environmental impacts in the

draft environmental assessment is

complete and accurate.

(11) Whether any specific areas we are

proposing for critical habitat

designation should be considered for

exclusion under section 4(b)(2) of the

Act, and whether the benefits of

potentially excluding any specific area

outweigh the benefits of including that

area under section 4(b)(2) of the Act.

(12) 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.

If you submitted comments or

information on the October 11, 2018,

proposed rule or DEA during the

comment period that was open from

October 11, 2018, to December 10, 2018,

please do not resubmit them. Any such

comments are already part of the public

record of this rulemaking proceeding,

and we will fully consider them in the

preparation of our final determination.

Our final determination will take into

consideration all written comments and

any additional information we receive

during both comment periods. The final

decision may differ from this revised

proposed rule, based on our review of

all information we receive during this

rulemaking proceeding.

You may submit your comments and

materials by one of the methods listed

ADDRESSES

. We request that you send

comments only by the methods

described in

ADDRESSES

If you submit a comment via http://

www.regulations.gov, your entire

comment—including any personal

identifying information—will be posted

on the website. We will post all

hardcopy comments on http://

www.regulations.gov as well. If you

submit a hardcopy comment 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.

Comments and materials we receive,

as well as supporting documentation we

used in preparing the proposed rule and

DEA, will be available for public

inspection on http://

www.regulations.gov at Docket No.

FWS–R4–ES–2018–0046, or by

appointment, during normal business

hours, at the U.S. Fish and Wildlife

Service, Raleigh Ecological Services

Field Office (see

FOR FURTHER

INFORMATION CONTACT

). You may obtain

copies of the proposed rule and the DEA

on the internet at http://

www.regulations.gov at Docket No.

FWS–R4–ES–2018–0046, or by mail

from the Raleigh Ecological Services

Field Office.

Background

It is our intent to discuss in this

document only those topics directly

relevant to the revised proposed section

4(d) rule and designation of critical

habitat. For more information on the

species, its habitat, and previous

Federal actions concerning the Atlantic

pigtoe, refer to the proposed rule

published in the Federal Register on

October 11, 2018 (83 FR 51570).

In our October 11, 2018, proposed

rule, we proposed to list the Atlantic

pigtoe as a threatened species with a

section 4(d) rule, including exceptions

for species restoration efforts by State

wildlife agencies, channel restoration

projects, bank stabilization projects, and

silvicultural practices and forest

management activities. That rule also

proposed to designate critical habitat in

16 units encompassing approximately

542 stream miles (872 kilometers) in

Craig, Botetourt, Fluvanna,

Buckingham, Nottoway, Lunenburg,

Brunswick, Dinwiddie, Greensville,

Mecklenburg, and Halifax Counties in

Virginia, and in Rockingham, Granville,

Vance, Franklin, Nash, Halifax, Warren,

Edgecombe, Pitt, Person, Durham,

Orange, Wake, Johnston, Wilson,

Randolph, and Montgomery Counties in

North Carolina. In addition, we

announced the availability of a DEA of

the proposed critical habitat

designation. We accepted comments on

the proposed rule and DEA for 60 days,

ending December 10, 2018. Based on

information we received during the

public comment period, we propose to

revise the proposed section 4(d) rule

and critical habitat designation, and are

therefore reopening the comment period

to allow the public additional time to

submit comments on both the October

11, 2018, proposed rule, as well as the

revisions described in this document.

New Information and Revisions to

Proposed Section 4(d) Rule

Section 4(d) of the Act states that the

‘‘Secretary shall issue such regulations

as he deems necessary and advisable to

provide for the conservation’’ of species

listed as threatened. The U.S. Supreme

Court has noted that very similar

statutory language demonstrates a large

degree of deference to the agency (see

Webster v. Doe, 486 U.S. 592 (1988)).

Conservation is defined in the Act to

mean ‘‘the use of all methods and

procedures which are necessary to bring

any endangered species or threatened

species to the point at which the

measures provided pursuant to [the Act]

are no longer necessary.’’ Additionally,

section 4(d) of the Act states that the

Secretary ‘‘may by regulation prohibit

with respect to any threatened species

any act prohibited under section 9(a)(1),

in the case of fish or wildlife, or section

9(a)(2), in the case of plants.’’ Thus,

regulations promulgated under section

4(d) of the Act provide the Secretary

with wide latitude of discretion to select

appropriate provisions tailored to the

specific conservation needs of the

threatened species. The statute grants

particularly broad discretion to the

Service when adopting the prohibitions

under section 9.

The courts have recognized the extent

of the Secretary’s discretion under this

standard to develop rules that are

appropriate for the conservation of a

species. For example, courts have

approved rules developed under section

4(d) that include a taking prohibition for

threatened wildlife, or include a limited

taking prohibition (see Alsea Valley

Alliance v. Lautenbacher, 2007 U.S.

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

Washington Environmental Council v.

National Marine Fisheries Service, 2002

U.S. Dist. Lexis 5432 (W.D. Wash.

2002)). Courts have also approved 4(d)

rules that do not address all of the

threats a species faces (see State of

Louisiana v. Verity, 853 F.2d 322 (5th

Cir. 1988)). As noted in the legislative

history when the Act was initially

enacted, ‘‘once an animal is on the

threatened list, the Secretary has an

almost infinite number of options

available to him with regard to the

permitted activities for those species. He

may, for example, permit taking, but not

importation of such species, or he may

choose to forbid both taking and

importation but allow the transportation

of such species’’ (H.R. Rep. No. 412,

93rd Cong., 1st Sess. 1973).

Although the statute does not require

the Service to make a ‘‘necessary and

advisable’’ finding with respect to the

adoption of specific prohibitions under

section 9, we find that this rule is

necessary and advisable to provide for

the conservation of the Atlantic pigtoe.

The Service proposed a species-specific

4(d) rule that is designed to address the

Atlantic pigtoe’s specific threats and

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conservation needs. It would promote

conservation of the Atlantic pigtoe by

encouraging management of the

landscape in ways that meet both land

management considerations and

meeting the conservation needs of the

Atlantic pigtoe. It would be one of many

tools that the Service would use to

promote the conservation of the Atlantic

pigtoe. It would apply only if and when

the Service makes final the listing of the

Atlantic pigtoe as a threatened species.

As discussed under the October 11,

2018, proposed rule’s Summary of

Biological Status and Threats (83 FR

51570, pp. 83 FR 51572–51577),

declines in water quality, loss of stream

flow, riparian and instream

fragmentation, and deterioration of

instream habitats are affecting the status

of the Atlantic pigtoe. These threats,

which are expected to be exacerbated by

continued urbanization and the effects

of climate change, were central to our

assessment of the future viability of the

Atlantic pigtoe. Therefore, we prohibit

actions that result in the incidental take

of Atlantic pigtoe by altering or

degrading the habitat. Regulating

incidental take resulting from these

activities would help preserve the

species’ remaining populations, slow its

rate of decline, and decrease synergistic,

negative effects from other stressors.

This 4(d) rule would provide for the

conservation of the Atlantic pigtoe by

prohibiting the following activities,

except as otherwise authorized or

permitted: Importing or exporting; take;

possession and other acts with

unlawfully taken specimens; delivering,

receiving, transporting, or shipping in

interstate or foreign commerce in the

course of commercial activity; or selling

or offering for sale in interstate or

foreign commerce.

Under the Act, ‘‘take’’ means to

harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or

to attempt to engage in any such

conduct. Some of these provisions have

been further defined in regulation at 50

CFR 17.3. Take can result knowingly or

otherwise, by direct and indirect

impacts, intentionally or incidentally.

Regulating incidental and/or intentional

take would help preserve the species’

remaining populations, slow their rate

of decline, and decrease synergistic,

negative effects from other stressors.

Therefore, we proposed to prohibit

intentional take of the Atlantic pigtoe,

including, but not limited to, capturing,

handling, trapping, collecting, or other

activities. In this proposed revision, we

would change the way in which the

provisions of the 4(d) rule for the

Atlantic pigtoe would appear in 50 CFR

17.45, and we would no longer refer to

the prohibitions set forth at 50 CFR

17.31(a). Instead, we propose to refer to

the prohibitions set forth at 50 CFR

17.21, which apply to endangered

species. However, the substance of the

prohibitions, and exceptions to those

prohibitions, in the proposed 4(d) rule

for the Atlantic pigtoe have not

changed. As we stated in the October

11, 2018, proposed rule, the species

needs active conservation to improve

the quality of its habitat. By excepting

some of the general prohibitions of 50

CFR 17.21, these excepted actions can

encourage cooperation by landowners

and other affected parties in

implementing conservation measures.

This would allow use of the land while

at the same time ensuring the protection

of suitable habitat and minimizing

impact on the species.

We are retaining the exceptions to the

prohibitions proposed in the October

11, 2018, section 4(d) rule. We believe

that those actions and activities, while

they may have some minimal level of

disturbance to the Atlantic pigtoe, are

unlikely to negatively impact the

species’ conservation and recovery

efforts. The proposed exceptions to

these prohibitions include (1) species

restoration efforts by State wildlife

agencies, (2) channel restoration

projects, (3) bank stabilization projects,

and (4) silvicultural practices and forest

management activities.

During the comment period on the

October 11, 2018, proposed rule, we

received numerous comments from the

public and peer reviewers on several of

the exceptions to the prohibitions in the

proposed 4(d) rule. As a result, we

retain the four exceptions but propose to

revise some of them. Below, we describe

the four exceptions and their proposed

revisions, if any.

The first exception for species

restoration efforts by State wildlife

agencies remains unchanged from what

we proposed on October 11, 2018 (83 FR

51570, p. 83 FR 51593), and includes

collection of broodstock, tissue

collection for genetic analysis, captive

propagation, and subsequent stocking

into currently occupied and unoccupied

areas within the historical range of the

species. The Service recognizes our

special and unique relationship with

our State natural resource agency

partners in contributing to conservation

of listed species. State agencies often

possess scientific data and valuable

expertise on the status and distribution

of endangered, threatened, and

candidate species of wildlife and plants.

State agencies, because of their

authorities and their close working

relationships with local governments

and landowners, are in a unique

position to assist the Services in

implementing all aspects of the Act. In

this regard, section 6 of the Act provides

that the Services shall cooperate to the

maximum extent practicable with the

States in carrying out programs

authorized by the Act. Therefore, any

qualified employee or agent of a State

conservation agency that is a party to a

cooperative agreement with the Service

in accordance with section 6(c) of the

Act, who is designated by his or her

agency for such purposes, would be able

to conduct activities designed to

conserve Atlantic pigtoe that may result

in otherwise prohibited take for wildlife

without additional authorization.

We propose revisions to the second

exception for channel restoration

projects based on public comments

received. This exception retains most of

the language from the October 11, 2018,

proposed rule for creation of natural,

physically stable, ecologically

functioning streams that are

reconnected with their groundwater

aquifer (83 FR 51570, p. 83 FR 51593).

Second- to third-order, headwater

streams reconstructed in this way would

offer suitable habitats for the Atlantic

pigtoe and contain stable channel

features, such as pools, glides, runs, and

riffles, which could be used by the

species and its host fish for spawning,

rearing, growth, feeding, migration, and

other normal behaviors. In this

document, we propose to add language

that would require surveys and

relocation for Atlantic pigtoes observed

prior to commencement of restoration

action.

The third exception for bank

stabilization projects remains largely

unchanged from what we proposed on

October 11, 2018, except that we

propose to include a requirement that

appropriate ‘‘native’’ vegetation,

including woody species appropriate for

the region and habitat, should be used

for stabilization. We propose this

revision based on comments we

received.

During the public comment period,

the Service received several comments

on the fourth exception for silvicultural

practices and forest management

activities, including seeking further

clarification of the meaning of ‘‘highest

standard’’ best management practices

(BMPs). As a result, we propose to

revise the language to clarify that the

BMPs must result in protection of the

habitat features that provide for the

breeding, feeding, sheltering, and

dispersal needs of the Atlantic pigtoe.

Specifically concerning streamside

management zones (SMZs), the

proposed 4(d) rule has been revised to

provide details about SMZ widths that

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would be most protective of the habitat

for the species, similar to those more

substantial BMPs considered for

‘‘special/sensitive’’ streams that are

designated ‘‘trout waters’’ and already

implemented by both Virginia and

North Carolina State forestry programs

(North Carolina Forest Service (NCFS)

2006, entire; Virginia Department of

Forestry (VADF) 2011, entire). SMZs for

waterbodies that are occupied by the

Atlantic pigtoe are intended to be

similar to the trout water SMZs, as

described in the Virginia BMP

Technical Manual (VADF 2011, p. 37),

the North Carolina Forestry BMP

Manual to Protect Water Quality (NCFS

2006, pp. 21, 30–31), and life-history

requirements as documented in the

species status assessment (SSA) for the

Atlantic pigtoe (USFWS 2019, pp. 5–

11). In waterbodies that support listed

freshwater mussel species, a wider SMZ

is more effective at reducing

sedimentation, maintaining lower water

temperatures through shading, and

introducing food (such as leaves and

insects) into the food chain (VADF

2011, p. 37). Ninety percent of the food

in forested streams comes from

bordering vegetation (NCWRC 2002, p.

6; USFWS 2006, p. 6; Stewart et al.

2000, p. 210; USFWS 2019, p. 55).

Freshwater mussels require cool, well-

oxygenated water, and a clean stream

bottom (USFWS 2019, p. 11). A lack of

these features limits the number of

freshwater mussels a stream can

support. Aquatic habitat and suitable

water temperature can be maintained

even during logging operations when

streamside vegetation is left intact

(VADF 2011, p. 37).

In addition, we propose to revise the

4(d) rule to provide details on how

access roads, skid trails, and crossings

can be used in a way that would be most

protective of the habitat by reducing

sedimentation (NCFS 2018, entire).

Silted stream bottoms suffocate filter-

feeding animals and decrease the

stream’s insect population, an important

source of food for host fish (VADF 2011,

p. 37). Siltation also makes mussel and

host fish reproduction difficult (USFWS

2019, pp. 29, 41, 47, 57). Transformed

juvenile mussels require clean gravel/

coarse sand substrates with oxygenated

water to successfully become adults

(USFWS 2019, p. 11). Lastly, a silted

bottom substrate can result in mortality

(USFWS 2019, pp. 29, 59).

Accordingly, we have clarified the

intent of the fourth exception for

silviculture practices and forest

management activities to those that

implement State-approved best

management practices (BMPs), which

include the following specifications for

streamside management zones (SMZ),

stream crossings, and access roads:

1. A two-zoned SMZ is established

and maintained along each side of the

margins of intermittent streams,

perennial streams, and perennial

waterbodies (see table for example of

current specifications based on slope

similar to Trout Waters (VADF 2011,

p.15)). The SMZ is measured from the

top of the stream bank, and is expected

to confine visible sediment resulting

from accelerated erosion.

ABLE

1—S

TREAMSIDE

ANAGEMENT

ONE

(SMZ)

FOR

ATERBODIES

CCUPIED BY

TLANTIC

IGTOE

Percent slope of adjacent lands (%) Zone 1

(no touch/no harvest;

measured in feet)

Zone 2

(selective harvest

allowed; measured

in feet)

Total SMZ width

(measured in feet)

0–10 ......................................................................................................... 50 16 66

11–20 ....................................................................................................... 50 25 75

21–45 ....................................................................................................... 50 50 100

46+ ........................................................................................................... 50 70 120

2. Access roads and skid trails that

cross an intermittent stream, a perennial

stream, or a perennial waterbody are

installed using properly designed and

constructed structures installed at right

angles to the stream. Structures do not

impede fish passage or stream flow, and

minimize the amount of visible

sediment that enters that stream or

waterbody. Number of crossings is

minimized, and stable sites for crossings

are chosen. These crossings are installed

so that:

a. Stream flow is not obstructed or

impeded;

b. No intermittent stream channel,

perennial stream channel, or perennial

waterbody is used as an access road or

skid trail;

c. Crossings are provided with

effective structures or native ground

cover to protect the stream banks and

stream channel from accelerated

erosion;

d. Crossings have sufficient water

control devices to collect and divert

surface flow from the access road or

skid trail into undisturbed areas or other

control structures to restrain accelerated

erosion and prevent visible sediment

from entering intermittent streams,

perennial streams, and perennial

waterbodies; and

e. Native ground cover, or best

management practices, that prevent

visible sediment from entering

intermittent streams, perennial streams,

and perennial waterbodies are provided

within 10 working days of initial

disturbance and are maintained until

the site is permanently stabilized.

3. All access roads and skid trails are

located outside of SMZs unless no other

alternative exists.

State-approved forestry BMPs are

upheld by North Carolina’s Forest

Practice Guidelines (FPGs) related to

water quality standards, the Virginia

Department of Forestry, and the

Sustainable Forestry Initiative/Forest

Stewardship Council/American Tree

Farm System certification standards for

both forest management and responsible

fiber sourcing, and are publicly

available on websites for these

organizations, as follows:

•https://www.stateforesters.org/bmps/

•https://www.ncforestservice.gov/

publications/Forestry%20Leaflets/

WQ01.pdf

•http://www.dof.virginia.gov/infopubs/

BMP-Technical-Guide_pub.pdf

•https://www.sfiprogram.org/wp-

content/uploads/2015_2019Standards

andRulesSection2Oct2015.pdf

•https://us.fsc.org/download.fsc-us-

forest-management-standard-v1-

0.95.htm

•https://www.treefarmsystem.org/

certification-american-tree-farm-

standards

We reiterate that these actions and

activities may have some minimal level

of take of the Atlantic pigtoe, but are not

expected to negatively impact the

species’ conservation and recovery

efforts. Rather, we expect they would

have a net beneficial effect on the

species. Across the species’ range,

instream habitats have been degraded

physically by sedimentation and by

direct channel disturbance. The

activities in the proposed 4(d) rule

would correct some of these problems,

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creating more favorable habitat

conditions for the species.

Further, the proposed 4(d) rule would

allow the issuance of permits to carry

out otherwise prohibited activities,

including those described above,

involving threatened wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.32. With regard to threatened

wildlife, a permit may be issued for the

following purposes: for scientific

purposes, to enhance the propagation or

survival of the species, for economic

hardship, for zoological exhibition, for

educational purposes, for incidental

taking, or for special purposes

consistent with the purposes of the Act.

The Service recognizes the special

and unique relationship with our State

natural resource agency partners in

contributing to conservation of listed

species. State agencies often possess

scientific data and valuable expertise on

the status and distribution of

endangered, threatened, and candidate

species of wildlife and plants. State

agencies, because of their authorities

and their close working relationships

with local governments and

landowners, are in a unique position to

assist the Services in implementing all

aspects of the Act. In this regard, section

6 of the Act provides that the Services

shall cooperate to the maximum extent

practicable with the States in carrying

out programs authorized by the Act.

Therefore, any qualified employee or

agent of a State conservation agency that

is a party to a cooperative agreement

with the Service in accordance with

section 6(c) of the Act, who is

designated by his or her agency for such

purposes, would be able to conduct

activities designed to conserve the

Atlantic pigtoe that may result in

otherwise prohibited take without

additional authorization.

Finally, the proposed 4(d) rule would

allow take of the Atlantic pigtoe without

a permit by any employee or agent of

the Service or a State conservation

agency designated by his agency for

such purposes and when acting in the

course of his official duties if such

action is necessary to aid a sick, injured,

or orphaned specimen; to dispose of a

dead specimen; or to salvage a dead

specimen which may be useful for

scientific study. In addition, Federal

and State law enforcement officers may

possess, deliver, carry, transport, or ship

Atlantic pigtoe taken in violation of the

Act as necessary.

Nothing in this proposed 4(d) rule

would change in any way the recovery

planning provisions of section 4(f) of the

Act, the consultation requirements

under section 7 of the Act, or the ability

of the Service to enter into partnerships

for the management and protection of

the Atlantic pigtoe. However,

interagency cooperation may be further

streamlined through planned

programmatic consultations for the

species between Federal agencies and

the Service. Anyone undertaking

activities that are not covered by the

provisions and that may result in take

would need to ensure, in consultation

with the Service, that those activities are

not likely to jeopardize the continued

existence of the species where the entity

is a Federal agency or there is a Federal

nexus, or consider applying for a permit

before proceeding with the activity (if

there is no Federal nexus).

New Information and Revisions to

Proposed Critical Habitat

During the public comment period,

we received 12 comment letters

containing over 80 comments on the

proposed critical habitat designation.

Some of the comments from the North

Carolina Wildlife Resources

Commission (NCWRC) provided

information that recommended

shortening proposed units to better

match the Natural Heritage Program

element occurrences. The NCWRC also

provided new observation data collected

since the first version of the SSA report,

which was finalized in December 2016,

including updated 2017 and 2018

survey records in Little Grassy Creek

(Dan River Basin, Granville County,

North Carolina), the Dan River

(Rockingham County, North Carolina),

and the Tar River (Nash County, North

Carolina), and an updated 2015 survey

location in Sturgeon Creek (Nottoway

River Basin, Dinwiddie County,

Virginia). We also determined we had

accidentally omitted observations from

2011 in Sappony Creek (Nottoway River

Basin, Dinwiddie County, Virginia) and

the Nottoway River (in Brunswick,

Dinwiddie, and Greensville Counties,

Virginia) in the October 11, 2018,

proposed rule (83 FR 51570). We also

noted an error in the critical habitat

table, where the measurement for the

New Hope Creek unit is 4 river miles

(6.4 kilometers (km)), not 6 river miles

(9.7 km). This information had been

included in the SSA report but not in

the proposed critical habitat

designation.

Therefore, in this document, we

propose certain revisions to the critical

habitat designation we proposed for the

Atlantic pigtoe on October 11, 2018 (83

FR 51570). Because of these revisions,

the numbering for most of the critical

habitat units has changed from the

October 11, 2018, proposed rule,

although the names and descriptions

remain the same. All revised changes to

unit numbers are described below and

listed in Table 2. Specifically, we

propose to add two units based on

updated observations of the species in

locations previously considered

historical; the new Unit 4 is 4 miles (6.6

km) of Sappony Creek in the Chowan

River Basin in Dinwiddie County,

Virginia (J. Stanhope 2019, pers.

comm.), and the new Unit 9 is 3 miles

(4.8 km) of Little Grassy Creek in the

Roanoke River Basin in Granville

County, North Carolina (NCWRC 2018,

p.6). We also propose to revise Unit 5

(previously Unit 4) to add 3.5 river

miles (5.6 km) of Sturgeon Creek based

on a 2015 observation of Atlantic pigtoe

not included in the October 11, 2018,

proposed rule, and 10.3 river miles (16.6

km) of Nottoway River based on

accidental omission of data in the

October 11, 2018, proposed rule

(J.Stanhope 2018, pers. comm.). We

propose to revise Unit 7 (previously

Unit 6) to add 7 miles (11.3 km) of the

Dan River in Rockingham County, North

Carolina, based on a 2017 observation of

Atlantic pigtoe (NCWRC 2018, p.6). We

propose to revise Unit 10 (previously

Unit 8) to remove two portions from this

unit totaling 3.75 miles (3.4 miles (5.5

km) from unnamed tributary to Bear

Swamp Creek and 0.35 miles (0.6 km)

from unnamed tributary to Cub Creek)

to better match the Natural Heritage

Element Occurrence data, and add one

portion of 10 miles (16.1 km) to the Tar

River in Nash County, North Carolina,

based on a 2016 observation of Atlantic

pigtoe. We also propose to revise Unit

11 (previously, Unit 9) to remove 8

miles (12.9 km) from Sandy Creek to

better match the Natural Heritage

Element Occurrence data in response to

the public comments from the NCWRC.

All of the additional stream miles are

currently occupied, contain most or all

of the physical or biological features to

support life-history functions essential

to the conservation of the Atlantic

pigtoe, and may require special

management considerations or

protection from threats as described in

the October 11, 2018, proposed rule (83

FR 51570). For clarity, we also propose

to add short textual descriptions of each

proposed unit in the regulatory text of

the critical habitat designation.

The DEA for the proposed critical

habitat designation has not been

revised. The counties containing the

new units (Units 4 and 9) and the

revised units (Units 7, 10, and 11) are

included in the DEA’s analysis that uses

the consultation efforts occurring in

counties, which overlap with the

October 11, 2018, proposed designation

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for Atlantic pigtoe critical habitat, as the

basis of determining incremental costs.

The revised Unit 5 (previously Unit 4)

includes 0.99 river miles (1.6 km) in

Sussex County, Virginia, which was not

considered in our DEA. However, given

the small amount of habitat and zero

consultation efforts on co-occurring

species (yellow lance and Roanoke

logperch) to date in this area of the Unit,

we do not anticipate an increase in the

overall incremental costs of designating

critical habitat for the Atlantic pigtoe.

Revised Proposed Critical Habitat

Designation

In total, we now propose to designate

approximately 566 miles (910

kilometers) in 18 units in Virginia and

North Carolina as critical habitat for the

Atlantic pigtoe. The proposed critical

habitat areas described below constitute

our best assessment, at this time, of

areas that meet the definition of critical

habitat, and all units are considered

currently occupied by the species.

Those 18 units are: (1) Craig Creek, (2)

Mill Creek, (3) Middle James River, (4)

Sappony Creek, (5) Nottoway River

Subbasin, (6) Meherrin River, (7) Dan

River, (8) Aarons Creek, (9) Little Grassy

Creek, (10) Upper/Middle Tar River

Subbasin, (11) Sandy/Swift Creek, (12)

Fishing Creek Subbasin, (13) Lower Tar

River, (14) Upper Neuse River Subbasin,

(15) Middle Neuse River Subbasin, (16)

New Hope Creek, (17) Deep River

Subbasin, and (18) Little River

Subbasin. Table 2 shows the name, land

ownership of the riparian areas

surrounding the units, and approximate

river miles of the proposed designated

units for the Atlantic pigtoe. Where

appropriate, Table 2 also notes the

previous number for units for which the

numbering has changed.

ABLE

2—R

EVISED

ROPOSED

RITICAL

ABITAT

NITS FOR THE

TLANTIC

IGTOE

Critical habitat unit Riparian ownership River miles

(kilometers) Proposed changes Previous unit

numbering

Unit 1. JR1—Craig Creek ....................................... Private; Federal ............. 29 (46.7) None .............................. Unit 1: JR1

Unit 2. JR2—Mill Creek ........................................... Federal ........................... 1 (1.6) None .............................. Unit 2: JR2

Unit 3. JR3—Middle James River ........................... Private ............................ 3 (4.8) None .............................. Unit 3: JR3

Unit 4. CR1—Sappony Creek ................................. Private ............................ 4 (6.6) New Unit ........................ New Unit

Unit 5. CR2—Nottoway River Subbasin ................. Private; Federal ............. 64 (103) + 14 mi (22.5 km) .......... Unit 4: CR1

Unit 6. CR3—Meherrin River .................................. Private ............................ 5 (8) None .............................. Unit 5: CR2

Unit 7. RR1—Dan River .......................................... Private ............................ 14 (22.5) +7 mi (11.2 km) ............. Unit 6: RR1

Unit 8. RR2—Aarons Creek .................................... Private ............................ 12 (19.3) None .............................. Unit 7: RR2

Unit 9. RR3—Little Grassy Creek ........................... Private ............................ 3 (4.8) New Unit ........................ New Unit

Unit 10. TR1—Upper/Middle Tar River Subbasin ... Private; Easements ........ 91 (146.5) +6 mi (9.7 km) ............... Unit 8: TR1

Unit 11. TR2—Sandy/Swift Creek ........................... Private; State; Ease-

ments. 50 (80.5) ¥8 mi (12.8 km) ............ Unit 9: TR2

Unit 12. TR3—Fishing Creek Subbasin .................. Private; State; Ease-

ments. 85 (136.8) None .............................. Unit 10: TR3

Unit 13. TR4—Lower Tar River .............................. Private; State; Ease-

ments. 30 (48.3) None .............................. Unit 11: TR4

Unit 14. NR1—Upper Neuse River Subbasin ......... Private; Federal; State;

Easements. 60 (95) None .............................. Unit 12: NR1

Unit 15. NR2—Middle Neuse River Subbasin ........ Private; State; County;

Easements. 61 (98.2) None .............................. Unit 13: NR2

Unit 16. CF1—New Hope Creek ............................. Private; Easements ........ 4 (6.4) ¥2 mi (3.3 km) .............. Unit 14: CF1

Unit 17. CF2—Deep River Subbasin ...................... Private ............................ 10 (16.1) None .............................. Unit 15: CF2

Unit 18. YR1– Little River Subbasin ....................... Private; Easements ........ 40 (64.4) None .............................. Unit 16: YR1

Total ................................................................. ........................................ 566 (910) +24 mi (38 km).

Note: Distances may not sum due to rounding.

The revised proposed critical habitat

designation is defined by the map or

maps, as modified by any accompanying

regulatory text, presented at the end of

this document under Proposed

Regulation Promulgation. For units

where there is no change from the

October 11, 2018, proposed rule, please

refer to information at http://

www.regulations.gov under Docket No.

FWS–R4–ES–2018–0046. We include

more detailed information on the

boundaries of the revised proposed

critical habitat designation in the

discussion of new and revised proposed

individual units below.

Unit 4: CR1—Sappony Creek

This is a new unit. Unit 4 consists of

4 river miles (6.6 river km) of Sappony

Creek in Dinwiddie County, Virginia.

The proposed designated area begins

just upstream of the Seaboard Railroad

crossing and ends just downstream of

the Shippings Road (SR 709) crossing.

The riparian areas on either side of the

river are privately owned. The unit

currently supports all breeding, feeding,

and sheltering needs for the species.

Special management considerations

or protection may be required to address

excess sediment and pollutants that

enter the creek and serve as indicators

of other forms of pollution such as

bacteria and toxins, reducing water

quality for the species. Sources of these

types of pollution are likely agricultural

and silvicultural runoff.

Unit 5: CR2—Nottoway River Subbasin

Revised Unit 5 (previously Unit 4)

consists of 64 river miles (103 river km)

of the Nottoway River and a portion of

Sturgeon Creek in Nottoway,

Lunenburg, Brunswick, Dinwiddie,

Greensville, and Sussex Counties,

Virginia. The proposed designation

begins downstream of the Nottoway

River’s confluence with Dickerson Creek

and ends at Little Mill Road, and

includes Sturgeon Creek downstream of

Old Stage Road. We propose to revise

this unit to add 3.5 river miles (5.6 km)

of Sturgeon Creek based on a 2015

observation of Atlantic pigtoe not

included in the October 11, 2018,

proposed rule, and 10.3 river miles (16.6

km) of Nottoway River based on

accidental omission of data in that

proposed rule. Land bordering the river

is primarily privately owned, except for

some land (14 miles) that is part of the

Fort Pickett National Guard Installation

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and therefore is owned by the United

States. The unit currently supports all

breeding, feeding, and sheltering needs

of the species.

Special management considerations

or protection may be required within

this unit to address a variety of threats.

In the past decade, the Nottoway River

suffered from several seasonal drought

events, which not only caused very low

dissolved oxygen conditions but also

decreased food delivery because of

minimal flows. In addition, these

conditions led to increased predation

rates on potential host fishes that were

concentrated into low-flow refugia (e.g.,

pools). Urban stormwater and nonpoint

source pollution have been identified as

contributing to water quality issues in

this unit; therefore, special management

considerations for riparian buffer

restoration, reduced surface and

groundwater withdrawals, and

stormwater retrofits will benefit the

habitat in this unit. Additional threats to

this system include oil and gas pipeline

projects that propose to cross streams at

locations where the species occurs.

Additional special management

considerations or protection may be

required within this unit to address low

water levels as a result of water

withdrawals and drought, as well as

recommendation of alternate routes for

oil and gas pipelines, or directional bore

for those projects.

Unit 7: RR1—Dan River

Revised Unit 7 (previously Unit 6)

consists of 14 river miles (22.5 river km)

of the Dan River along the border of

Virginia and North Carolina from NC

Highway 700 near Eden, North Carolina,

into Pittsylvania County, Virginia, and

downstream to the confluence with

Williamson Creek in Rockingham

County, North Carolina. We propose to

revise this unit to add 7 miles (11.3 km)

in Rockingham County, North Carolina,

based on a 2017 observation of Atlantic

pigtoe. The land on either side of the

proposed critical habitat unit is

privately owned. The unit currently

supports all breeding, feeding, and

sheltering needs for the species.

Special management considerations

or protection may be required within

this unit to address threats. For

example, a Duke Energy coal ash spill

occurred upstream of this unit in

February 2014; subsequent actions

related to mitigating the effects of the

spill will ultimately benefit the habitat

in this unit, potentially allowing species

restoration efforts.

Unit 9: RR3—Little Grassy Creek

This is a new unit. Unit 9 consists of

3 river miles (4.8 river km) of Little

Grassy Creek in Granville County, North

Carolina. The proposed designated area

begins at the Davis Chapel Road

crossing and ends at the confluence

with Grassy Creek. The riparian areas on

either side of the river are privately

owned. The unit currently supports all

breeding, feeding, and sheltering needs

for the species.

Special management considerations

or protection may be required to address

excess sediment and pollutants that

enter the creek and serve as indicators

of other forms of pollution such as

bacteria and toxins, reducing water

quality for the species. Sources of these

types of pollution are likely agricultural

and silvicultural runoff.

Unit 10: TR1—Upper/Middle Tar River

Subbasin

This revised unit (previously Unit 8)

consists of 91 miles (146.5 km) of the

mainstem of the upper and middle Tar

River as well as several tributaries (Bear

Swamp Creek, Fox Creek, Crooked

Creek, Cub Creek, and Shelton Creek),

in Granville, Vance, Franklin, and Nash

Counties, North Carolina. The portion of

Cub Creek starts near Hobgood Road

and continues to the confluence with

the Tar River; the Tar River portion

starts just upstream of the NC 158 bridge

and goes downstream to the NC 581

crossing; the Shelton Creek portion

starts upstream of NC 158 downstream

to the confluence with the Tar River; the

Bear Swamp Creek portion begins

upstream of Dyking Road downstream

to the confluence with the Tar River

(and includes an unnamed tributary

upstream of Beasley Road); the Fox

Creek portion begins downstream of NC

561 to the confluence with the Tar

River; and the Crooked Creek portion

begins upstream of NC 98 crossing

downstream to confluence with Tar

River. We propose revisions to remove

two portions from this unit (3.4 miles

(5.5 km) from unnamed tributary to Bear

Swamp Creek and 0.35 miles (0.6 km)

from unnamed tributary to Cub Creek)

based on Natural Heritage Element

Occurrence data, and to add 10 miles

(16.1 km) to the Tar River in Nash

County, North Carolina, based on a 2016

observation of Atlantic pigtoe. Land

bordering the river and creeks is mostly

(79 mi (119 km)) privately owned,

except for some areas (12 mi (17 km))

in public ownership or easements. The

unit currently supports all breeding,

feeding, and sheltering needs for the

species.

Special management considerations

or protection may be required within

this unit to address a variety of threats.

Excessive amounts of nitrogen and

phosphorus run off the land or are

discharged into the waters, causing too

much growth of microscopic or

macroscopic vegetation and leading to

extremely low levels of dissolved

oxygen. As a result, there are six

‘‘impaired’’ stream reaches (as identified

on the State’s Clean Water Act section

303d list) totaling approximately 32

miles in the unit. Expansion or addition

of new wastewater discharges are also a

threat to habitat in this unit. Special

management focused on agricultural

BMPs, implementing highest levels of

treatment of wastewater practicable,

maintenance of forested buffers, and

connection of protected riparian

corridors will benefit habitat for the

species in this unit.

Unit 11: TR2—Sandy/Swift Creek

This revised unit (previously Unit 9)

consists of a 50-mile (80.5-km) segment

of Sandy/Swift Creek beginning at

Southerland Mill Road downstream to

NC 301 in Granville, Vance, Franklin,

and Nash Counties, North Carolina. We

propose to revise this unit to remove 8

miles (12.9 km) from the upstream limit

of Sandy Creek based on Natural

Heritage Element Occurrence data in

response to comments from the

NCWRC. Land bordering the river and

creeks is mostly (50 mi (80 km))

privately owned, with some areas (8 mi

(13 km)) covered by protective

easements held by a local land trust and

the North Carolina Division of

Mitigation Services. The unit currently

supports all breeding, feeding, and

sheltering needs for the species.

Special management considerations

or protection may be required within

this unit to address a variety of threats.

Excessive amounts of nitrogen and

phosphorus run off the land or are

discharged into the waters, causing

excessive growth of microscopic or

macroscopic vegetation and leading to

extremely low levels of dissolved

oxygen; there is one ‘‘impaired’’ stream

reach totaling approximately 5 miles (8

km) in this unit. Special management

focused on agricultural BMPs,

maintenance of forested buffers, and

connection of protected riparian

corridors will benefit habitat for the

species in this unit.

References Cited

A complete list of references cited in

this document is available on the

internet at http://www.regulations.gov

and upon request from the Raleigh

Ecological Services Field Office (see

FOR

FURTHER INFORMATION CONTACT

Authors

The primary authors of this document

are the staff members of the U.S. Fish

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and Wildlife Service Species

Assessment Team and Raleigh

Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to further

amend part 17, subchapter B of chapter

I, title 50 of the Code of Federal

Regulations, as proposed to be amended

at 83 FR 51570 (October 11, 2018) as set

forth below:

PART 17—ENDANGERED AND

THREATENED WILDLIFE AND PLANTS

■1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 1531–

1544; and 4201–4245, unless otherwise

noted.

■2. Add § 17.45 to read as set forth

below:

§ 17.45 Special rules—snails and clams.

(a) Atlantic pigtoe (Fusconaia

masoni).

(1) Prohibitions. Except as noted in

paragraph (a)(2) of this section and

§ 17.4, it is unlawful for any person

subject to the jurisdiction of the United

States to commit, to attempt to commit,

to solicit another to commit, or cause to

be committed, any of the following acts

in regard to this species:

(i) Import or export, as set forth at

§ 17.21(b) for endangered wildlife.

(ii) Take, as set forth at § 17.21(c)(1)

for endangered wildlife.

(iii) Possession and other acts with

unlawfully taken specimens, as set forth

at § 17.21(d)(1) for endangered wildlife.

(iv) Interstate or foreign commerce in

the course of commercial activity, as set

forth at § 17.21(e) for endangered

wildlife.

(v) Sale or offer for sale, as set forth

at § 17.21(f) for endangered wildlife.

(2) Exceptions from prohibitions. In

regard to this species, you may:

(i) Conduct activities as authorized by

a permit under § 17.32.

(ii) Take as set forth at § 17.21(c)(3)

and (c)(4) for endangered wildlife.

(iii) Take as set forth at § 17.31(b).

(iv) Possess and engage in other acts,

as set forth at § 17.21(d)(2) for

endangered wildlife.

(v) Take incidental to the following

activities:

(A) Species restoration efforts by State

wildlife agencies, including collection

of broodstock, tissue collection for

genetic analysis, captive propagation,

and subsequent stocking into currently

occupied and unoccupied areas within

the historical range of the species.

(B) Channel restoration projects that

create natural, physically stable,

ecologically functioning streams (or

stream and wetland systems) that are

reconnected with their groundwater

aquifers. These projects can be

accomplished using a variety of

methods, but the desired outcome is a

natural channel with low shear stress

(force of water moving against the

channel); bank heights that enable

reconnection to the floodplain; a

reconnection of surface and

groundwater systems, resulting in

perennial flows in the channel; riffles

and pools comprised of existing soil,

rock, and wood instead of large

imported materials; low compaction of

soils within adjacent riparian areas; and

inclusion of riparian wetlands. Prior to

restoration action, surveys to determine

presence of Atlantic pigtoe must be

performed, and if located, mussels must

be relocated prior to project

implementation.

bioengineering methods to replace pre-

existing, bare, eroding stream banks

with vegetated, stable stream banks,

thereby reducing bank erosion and

instream sedimentation and improving

habitat conditions for the species.

Following these bioengineering

methods, stream banks may be

stabilized using native species live

stakes (live, vegetative cuttings inserted

or tamped into the ground in a manner

that allows the stake to take root and

grow), native species live fascines (live

branch cuttings, usually willows, bound

together into long, cigar shaped

bundles), or native species brush

layering (cuttings or branches of easily

rooted tree species layered between

successive lifts of soil fill). Native

vegetation includes woody species

appropriate for the region and habitat

conditions. These methods must not

include the sole use of quarried rock

(rip-rap) or the use of rock baskets or

gabion structures.

(D) Silviculture practices and forest

management activities that implement

State-approved best management

practices for sensitive areas, including a

two-zoned streamside management zone

(SMZ) (Zone 1 width is a 50-foot

minimum with no harvest allowed;

Zone 2 width is variable depending on

slope and includes selective harvest)

established and maintained along each

side of the margins of intermittent

streams, perennial streams, and

perennial waterbodies. The SMZ is

measured from the top of the stream

bank, and will confine visible sediment

resulting from accelerated erosion.

Access roads and skid trails that cross

an intermittent stream, a perennial

stream, or a perennial waterbody must

be installed using properly designed

and constructed structures installed at

right angles to the stream, must not

impede fish passage or stream flow, and

must minimize the amount of visible

sediment that enters that stream or

waterbody. The number of crossings

must be minimized, stable sites for

crossings must be chosen, and access

roads and skid trails must be located

outside of SMZs unless no other

alternative exists.

(b) [Reserved]

■3. Amend § 17.95(f), the entry

proposed at 83 FR 51570 for ‘‘Atlantic

Pigtoe (Fusconaia masoni)’’, by revising

paragraphs (5) through (21) and by

adding paragraphs (22) and (23), to read

as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(f) Clams and Snails.

* * * * *

Atlantic Pigtoe (Fusconaia masoni)

* * * * *

(5) Note: Index map follows:

BILLING CODE 4333–15–P

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(6) Unit 1: JR1—Craig Creek, Craig

and Botetourt Counties, Virginia.

(i) This unit consists of 29 river miles

(46.7 river kilometers) of Craig Creek

near VA Route 616 west of New Castle

downstream to just below VA Route 817

crossing.

(ii) Map of Unit 1 (Craig Creek)

follows:

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EP22SE20.000</GPH>

()

Index Map ofCritical HabitatUnitsforAtlanticPtgtoe

C/ibl.Habitat

Vllaterslled

Boi.iiii:lllriea

state

Bi>ijru:lariea

County

Boulldaiiea,

59496

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(7) Unit 2: JR2—Mill Creek, Bath

County, Virginia. (i) This unit consists of a 1-mile (1.6-

kilometer) segment of Mill Creek at the

VA 39 (Mountain Valley Road) crossing.

(ii) Map of Unit 2 (Mill Creek)

follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.001</GPH> EP22SE20.002</GPH>

Map

UniM

.JR1

Craig

Creek

Critical

Habitat Unit

for

Atlantic

igtoe

_,_--,

___

, rvtaj1>r~rs

_""-,;,

Crftcar

Habitat

F.~Z;,;J

City

Si)uiidlirie&

Caµnty

B<!lltl~arle1;

Map

Unit

2 -

JR2

Mill

Creek

Cn"tical

HabitatUnitJor Atlantic

Pigtoe

Mites

4.25

a.5.

Kilome\'1rs

Cmical

Habitat

----,

__,

Major

Rivers.

City

Boundaries

County Boundaries

59497

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(8) Unit 3: JR3—Middle James River,

Fluvanna and Buckingham Counties,

Virginia.

(i) This unit consists of a 3-mile (4.8-

kilometer) segment of the Middle James

River downstream of its confluence with

the Slate River, under the crossing of

VA Hwy 15 (James Madison Highway)

along the boundary of Fluvanna and

Buckingham Counties, Virginia.

(ii) Map of Unit 3 (Middle James

River) follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.003</GPH>

M1tp

U11it

JR3

Mi<td~e

Jafll8s.

Riv~r

Critic::al

Habitat

Unit

for

Atllilntic:

Pigtoe

~IJlabllat

.~,

~.,

MajorRille!I>

Clti

.Boi:irid;itifit

Co!Jll!y

Eloundarlel;

59498

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(9) Unit 4: CR1—Sappony Creek,

Dinwiddie County, Virginia.

(i) This unit consists of 4 river miles

(6.6 river kilometers) of Sappony Creek

in Dinwiddie County, Virginia. The

designated area begins just upstream of

the Seaboard Railroad crossing and ends

just downstream of the Shippings Road

(SR 709) crossing.

(ii) Map of Unit 4 (Sappony Creek)

follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.004</GPH>

Map

Unit

4 - CR1 -Sappony Creek Critical Habitat Unit for Atlantic Pigtoe

4Ki1om<i.!et$.

Oinwlddle.

C,,,UII\V;

Y,A

·"""-·

Crilica,i

Habitat

•.

,,.-,·~"

Maier

ru.11ts

Cify.

8oundariiia

County

9Qund.ar!I$

59499

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(10) Unit 5: CR2—Nottoway River

Subbasin, Nottoway, Lunenburg,

Brunswick, Dinwiddie, Greensville, and

Sussex Counties, Virginia.

(i) This unit consists of 64 river miles

(103 river kilometers) of the Nottoway

River, and a portion of Sturgeon Creek.

The designation begins downstream of

the Nottoway River’s confluence with

Dickerson Creek and ends at Little Mill

Road, and includes Sturgeon Creek

downstream of Old Stage Road.

(ii) Map of Unit 5 (Nottoway River

Subbasin) follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.005</GPH>

Map

Unit 5

CR2

Nottaway

River

Subbasin

Critical Habitat Unit for Atlantic

Pigtoe

0 I

Miles

I I I

Kllometers

Critleal Habitat

ffi

Pickett

DOD

Exempt

Area

'·-·'

Major

Rivers

City

Boundaries

County

Boundaries·

59500

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(11) Unit 6: CR3—Meherrin River,

Brunswick County, Virginia.

(i) This unit consists of 5 miles (8

kilometers) of the Meherrin River from

approximately 1.5 river miles below the

confluence with Saddletree Creek under

VA Hwy 46 (Christana Highway) to VA

715 (Iron Bridge Road).

(ii) Map of Unit 6 (Meherrin River)

follows:

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EP22SE20.006</GPH>

()

Map

Unit:8 -CR4 -Meherrin River Critical Habitat Unit for Atlantic Pigtoe

~ilom11le!$

""'-

Critical

Habitat

''"'\,s,,

MajarRl\iets

Clfy

Botittdaniit

County

Sou~artes

59501

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(12) Unit 7: RR1—Dan River,

Pittsylvania County, Virginia, and

Rockingham County, North Carolina.

(i) This unit consists of 14 river miles

(22.5 river kilometers) of the Dan River

along the border of Virginia and North

Carolina from NC Highway 700 near

Eden, North Carolina, into Pittsylvania

County, Virginia, and downstream to

the confluence with Williamson Creek

in Rockingham County, North Carolina.

(ii) Map of Unit 7 (Dan River) follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00055 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.007</GPH>

Map

Unit 7 -

RR1

-Dan River Critical Habitat.Unit for Atlantic Pigtoe

¢riliealHabltat

.•

MajorRwelli

Ci(y

Eli>liriil\lries

Collrity

Sotmdarl$s

59502

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(13) Unit 8: RR2—Aarons Creek,

Granville County, North Carolina, and

Mecklenburg and Halifax Counties,

Virginia.

(i) This unit consists of 12 miles (19.3

kilometers) of Aarons Creek, from NC 96

in Granville County, North Carolina,

downstream across the North Carolina-

Virginia border to VA 602 (White House

Road) along the Mecklenburg County-

Halifax County line in Virginia.

(ii) Map of Unit 8 (Aarons Creek)

follows:

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EP22SE20.008</GPH>

Map

Unit

8 -

RR2

Aarons

Creek

Critical Habitat Unit for Atlantic

Pigtoe

P,,rso?·

County,

,,,.-/'

;

,./

1.25

2.5

5Mile•

KIiometers

Granville

County,

Critical Habitat

-·'-·-·· Major Rivers

City Boundaries

· County Boundaries

Mecklenburg

County,

59503

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(14) Unit 9: RR3—Little Grassy Creek,

Granville County, North Carolina.

(i) This unit consists of 3 river miles

(4.8 river kilometers) of Little Grassy

Creek in Granville County, North

Carolina. The designated area begins at

the Davis Chapel Road crossing and

ends at the confluence with Grassy

Creek.

(ii) Map of Unit 9 (Little Grassy Creek)

follows:

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EP22SE20.009</GPH>

.Map

Unit 9 -

R.R3

-Little Grassy Creek Critical

HabitatUnitfor

Atlantic Pigtoe

()

1.5

,>:_/

"\.

Qran•lli..eoun~.

K11omeie111

"°'-·

¢!itii;at

Hii

bilat

·,._., MajotRiiier&

¢ity

!'loundiirieii

Cour!ty

Elounda!iils

59504

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(15) Unit 10: TR1—Upper/Middle Tar

River Subbasin, Granville, Vance,

Franklin, and Nash Counties, North

Carolina.

(i) This unit consists of 91 miles

(146.5 kilometers) of the mainstem of

the upper and middle Tar River as well

as several tributaries (Bear Swamp

Creek, Fox Creek, Crooked Creek, Cub

Creek, and Shelton Creek), all in North

Carolina. The portion of Cub Creek

starts near Hobgood Road and continues

to the confluence with the Tar River; the

Tar River portion starts just upstream of

the NC 158 bridge and goes downstream

to the NC 581 crossing; the Shelton

Creek portion starts upstream of NC 158

downstream to the confluence with the

Tar River; the Bear Swamp Creek

portion begins upstream of Dyking Road

downstream to the confluence with the

Tar River (and includes an unnamed

tributary upstream of Beasley Road); the

Fox Creek portion begins downstream of

NC 561 to the confluence with the Tar

River; and the Crooked Creek portion

begins upstream of NC 98 crossing

downstream to confluence with Tar

River.

(ii) Map of Unit 10 (Upper/Middle Tar

River Subbasin) follows:

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EP22SE20.010</GPH>

Map

of Unit 10 •

TR1

•

Upper/Middle

Tar

River

Subbasin

Critical Habitat Unit for Atlantic

Pigtoe

20Mlles

KIiometers

'\.,.'

r1r~{--7.ebu!n{

'.1

'\.')

Critical Habitat

----,

_ • Major Rivers

City Boundaries

I County Boundaries

59505

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(16) Unit 11: TR2—Sandy/Swift

Creek, Warren, Franklin, and Nash

Counties, North Carolina.

(i) This unit consists of a 50-mile

(80.5-kilometer) segment of Sandy/Swift

Creek beginning at Vance/Warren

county line downstream to NC 301 in

Franklin County.

(ii) Map of Unit 11 (Sandy/Swift

Creek) follows:

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EP22SE20.011</GPH>

Map

Unit

TR2-

Sandy/SwiftCreek Critical Habitat Unit.for Atlantic Pigtoe

()

f l

2QMila

~cri!icaLHabttat

·"''·"'··' MlijqtR!vers

City

$ourular~

C)c,urity

lliou~aiies

59506

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(17) Unit 12: TR3—Fishing Creek

Subbasin, Warren, Halifax, Franklin,

and Nash Counties, North Carolina.

(i) This unit consists of 85 miles

(136.8 kilometers) in Fishing Creek,

Little Fishing Creek, Shocco Creek, and

Maple Branch. The Shocco Creek

portion begins downstream of the NC 58

bridge and continues to the confluence

with Fishing Creek; the entirety of

Maple Branch is included, down to the

confluence with Fishing Creek; Fishing

Creek begins at Axtell Ridgeway Road

(SR 1112) downstream to I–95; and

Little Fishing Creek begins upstream of

Briston Brown Road (SR 1532)

downstream to the confluence with

Fishing Creek.

(ii) Map of Unit 12 (Fishing Creek

Subbasin) follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00060 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.012</GPH>

Map

Unit

1.2

TR3

-fishing

Creek.

Subbasin

Critical Habitat Unit for Atlantic Pigtoe

(l 5

Hi.

fl"\,,,,

Ctltit:alHabllat

•·--.,,_,

Major

Rilil1111

Otty

&ounliatM

C:ounty•

Boundaries.

'·

·'

.\\'\,.

F,rj/i,lif,

~....,.

......

_~""""-'-·'>~·''\:1~"'''

59507

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(18) Unit 13: TR4—Lower Tar River,

Edgecombe and Pitt Counties, North

Carolina.

(i) This unit consists of 30 miles (48.3

kilometers) of the Lower Tar River,

lower Swift Creek, and Fishing Creek in

Edgecombe County, North Carolina,

from NC 97 near Leggett, North

Carolina, to the Edgecombe-Pitt County

line near NC 33.

(ii) Map of Unit 13 (Lower Tar River)

follows:

VerDate Sep<11>2014 17:17 Sep 21, 2020 Jkt 250001 PO 00000 Frm 00061 Fmt 4702 Sfmt 4725 E:\FR\FM\22SEP1.SGM 22SEP1

EP22SE20.013</GPH>

Map of Unit 13 -TR4 -Lower Tar River Critical

Habitat.

Unit for Atlantic Pigtoe

!,iltica!Hab~t

.c-·,-

"''

Majbt

f!ivel'S

City.

l:loundamili

county

aouooarles

59508

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(19) Unit 14: NR1—Upper Neuse

River Subbasin, Person, Durham, and

Orange Counties, North Carolina.

(i) This unit consists of 60 river miles

(95 river kilometers) in four reaches

including Flat River, Little River, Eno

River, and the Upper Eno River. The

Flat River reach consists of 19 river

miles (30.6 river kilometers) in the Flat

River Subbasin in Person and Durham

Counties, North Carolina, including the

South Flat River downstream of Dick

Coleman Road, the North Flat River near

Parsonage Road, and Deep Creek near

Helena-Moriah Road downstream where

each river converges into the Flat River

downstream of State Forest Road. The

Little River Subbasin includes 18 river

miles (29 river kilometers) of the North

Fork and South Fork Little Rivers in

Orange and Durham Counties, North

Carolina. The Upper Eno River reach

consists of 4 river miles (6.4 river

kilometers) in Orange County, North

Carolina, including the West Fork Eno

River upstream of Cedar Grove Road to

the confluence with McGowan Creek.

The Eno River reach consists of 18 river

miles (29 river kilometers) in Orange

and Durham Counties, North Carolina,

from below Eno Mountain Road to NC

15–501.

(ii) Map of Unit 14 (Upper Neuse

River Subbasin) follows:

(20) Unit 15: NR2—Middle Neuse

River Subbasin, Wake, Johnston, and

Wilson Counties, North Carolina.

(i) This unit consists of 61 river miles

(98.2 river kilometers) in five reaches

including Swift Creek, Middle Creek,

Upper Little River, Middle Little River,

and Contentnea Creek, all in North

Carolina. The Middle Creek reach is 19

river miles (30.6 river kilometers) below

Old Stage Road downstream to below

Crantock Road, and the Swift Creek

reach is 25 river miles (40.2 river

kilometers) from Lake Benson

downstream to confluence with the

Neuse, both in Wake and Johnston

Counties. The Upper Little River reach

includes 4 miles (6.4 kilometers) of the

Upper Little River from the confluence

with Perry Creek to Fowler Road in

Wake County, North Carolina. The

Middle Little River reach includes 11

river miles (17.7 river kilometers) from

Atkinsons Mill downstream to NC 301

in Johnston County, North Carolina. The

Contentnea Creek reach consists of 2

river miles (3.2 river kilometers) below

Buckhorn Reservoir to just below Sadie

Road near NC 581 in Wilson County,

North Carolina.

(ii) Map of Unit 15 (Middle Neuse

River Subbasin) follows:

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EP22SE20.014</GPH>

8;!i

Map

ofUrUt 14 -NRt

-Upper

Neuse River

Subbasin

Critical

Habitat UnitforAtlanticPigtoe

·~.

Ciiti~I.Habital

r,.~.,

Major RM,rs

City•

Soundarl&i

Courity

Elt>undarles;

59509

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(21) Unit 16: CF1—New Hope Creek,

Orange County, North Carolina. (i) This unit consists of 4 mi (6.4 km)

of habitat in the New Hope Creek from

NC 86 to Mimosa Road.

(ii) Map of Unit 16 (New Hope Creek)

follows:

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EP22SE20.015</GPH> EP22SE20.016</GPH>

4i.5

Map

Unit 15 -NR2 -Middle Neuse River

Subbasln Critical Habitat Unit for Atlantic Pigtoe

20Kllome!en.

Critical

Habitat

----,

, Major Rivers

City

Boundaries

County

So\lndarias

_jri.

l -

·,~

)

,,.--"'

1 ecmtentnea

'i?c__

Ci'oak

~~~.;~

Map

Unit

- . CF1 -

New

Hope CreekCriticaLHabitat Unit

for

Atlantic Pigtoe

-~-1::rHlcaf Hab.~t

;~,_,

-~--

MaJor.·.Riliers

City

B\)Uridanes

C:ounty

Bo11!)darill$

59510

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(22) Unit 17: CF2—Deep River

Subbasin, Randolph County, North

Carolina.

(i) The Deep River Subbasin unit

consists of 10 river miles (16.1 river

kilometers), including the mainstem

between Richland and Brush Creeks as

well as Richland Creek from Little

Beane Store Road to the confluence with

the Deep River and Brush Creek from

Brush Creek Road to the confluence

with the Deep River.

(ii) Map of Unit 17 (Deep River

Subbasin) follows:

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EP22SE20.017</GPH>

Map

Unit

1.7

•CF2

-Deep

River. Subbasin CriticatHabitat UniUor.Attantic,Pigtoe

~Clilllcli:i

Habiiat

'""':>"·'

MiijOtftilieni

·~

CiljtBoundafi#

c'Oi.lnty~mi~

59511

Federal Register / Vol. 85, No. 184 / Tuesday, September 22, 2020 / Proposed Rules

(23) Unit 18: YR1—Little River

Subbasin, Randolph and Montgomery

Counties, North Carolina.

(i) This unit consists of 40 miles (64.4

kilometers) of Little River from SR 1114

downstream to Okeewemee Star Road,

including the West Fork Little River

from NC 134 to the confluence with the

Little River.

(ii) Map of Unit 18 (Little River

Subbasin) follows:

* * * * *

Aurelia Skipwith,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 2020–19095 Filed 9–21–20; 8:45 am]

BILLING CODE 4333–15–C

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EP22SE20.018</GPH>

Map

Unit

-YR1

-Little River Subbasin Critical Habitat

Unit

for Atlantic PigtQe

I (

()

5 10 I

20J<ilcm1ele!I.

¢rltlcall-labltal

'"°"\.~.,

Miij(!IRiven.

Cify

Boiiridaiie&

c~nfy

~arlii$

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Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic Pigtoe

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Over 100 Countries

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Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users