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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
provide conservation benefits. The 4d exceptions provide specific information on the conditions required for being excepted from incidental take; they do not prohibit other forms of silvicultural management. Those activities not falling within the stated exceptions simply would require consultation with the Service under section 7, or a conservation agreement under section 10, of the Act. The 4d rules exceptions, including the conditions necessary to meet those exceptions, are intended to provide some relief from regulatory burden, while avoiding adverse impacts to the species and adverse modification of the species habitat.
26 Comment: Several commenters requested that the Service revise the proposed 4d rule to remove language referring to BMPs we find necessary for the conservation of the Neuse River waterdog and to only reference Stateapproved BMPs without addition or modification.
Our Response: The Services regulations typically do not refer to nonFederal rules, regulations, or guidance because doing so would result in an incorporation by reference, which means that the referenced non-Federal document would be considered a de facto Federal regulation, and each time that non-Federal document is updated or revised, we would have to go through rulemaking to update our regulations.
Regulatory references are typically restricted to existing conservation regulatory requirements for species under another Federal statute or international agreement e.g., Marine Mammal Protection Act MMPA; 16
U.S.C. 1361 et seq.; Convention on the International Trade in Endangered Species of Wild Fauna and Flora CITES; 27 U.S.T. 1087. Stateapproved BMPs for forestry are not species conservation regulatory requirements. Furthermore, the North Carolina Forestry BMP manual does not represent a law or requirement; it is a set of recommended practices for achieving compliance with North Carolinas FPGs, and the manual is subject to change. In fact, the NCFS has recently proposed revisions to the BMP
manual Gerow 2020, pers. comm.; this highlights the need to provide specific information for the conservation of a species in the text of the regulation. The Act guides the Service to establish a species-specific 4d rule for threatened species, including language stating the prohibitions and potential exceptions for the protection of the species.
27 Comment: During the reopened comment period July 30August 31, 2020, several commenters submitted
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form letters using identical language stating that compliance with North Carolinas BMPs should be sufficient to protect a landowner from prosecution for an illegal take of the Neuse River waterdog.
Our Response: Illegal take of a species under protection of the Act is always prohibited. Take is only allowed by individuals who have appropriate permits or whose activities are covered by exceptions for incidental take; 50
CFR 17.3 defines incidental taking as any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. The 4d rule for the Neuse River waterdog applies all of the Acts section 9 take prohibitions, with certain exceptions from those prohibitions, including incidental take associated with four activity categories species recovery by State agencies, channel restoration projects, bank stabilization projects, and silvicultural practices and forest management activities. To meet the 4d rule exception, maximum and proper implementation of State-approved BMPs is required and will ensure the excepted activity will avoid any take implications. However, we emphasize that illegal take i.e., activities not covered by an exception or by consultation with the Service is prohibited.
28 Comment: During the reopened comment period July 30August 31, 2020, two commenters, including the NCFS and VDOF, offered alternative language for the entirety of the silvicultural component of the proposed 4d rule. They noted that this alternative language was drafted with the intent of applicability in targeted watersheds of the eastern Piedmont and Upper Coastal Plain regions of North Carolina. The alternative language states an exception to the take prohibitions for: Forestry-related activities, including silvicultural practices, forest management work, and fire control tactics, that achieve all of the following:
1 Establish a streamside management zone alongside the margins of each occupied waterway; 2 restrain visible sedimentation caused by the forestryrelated activity from entering the occupied waterway; 3 maintain groundcover within the streamside management zone of the occupied waterway, and promptly re-establish groundcover if disturbed; 4 limit installation of new vehicle or equipment crossings of the occupied waterway to only where necessary for the forestryrelated activity. Such crossings must have erosion and sedimentation control measures installed to divert surface
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runoff away and restrain visible sediment from entering the waterway, allow for movement of aquatic organisms within the waterway, and have groundcover applied and maintained through completion of the forestry-related activity; 5 prohibit the use of tracked or wheeled vehicles for reforestation site preparation within the streamside management zone of the occupied waterway; 6 prohibit locating log decks, skid trails, new roads, and portable mill sites in the streamside management zone of the occupied waterway; 7 prohibit obstruction and impediment of the flow of water, caused by direct deposition of debris or soil by the forestry-related activity, within the occupied waterway; 8 maintain shade over the occupied waterway similar to that observed prior to the forestryrelated activity; and 9 prohibit discharge of any solid waste, petroleum, pesticide, fertilizer, or other chemical into the occupied waterway.
Our Response: The Service agrees with the comment and has revised the 4d rule language to reflect these suggested changes for the forestry exception. We recognize forestry management that implements Stateapproved BMPs protects water quality, and we realize that, in order to meet specific goals, flexibility is needed with regard to which BMPs are used during management. This final 4d rule provides practitioners the flexibility to choose which BMPs to use in their forestry activities while providing for the conservation of the species. We emphasize here that we deemed those revisions necessary because of concerns about confusion and challenging implementation related to multiple sets of forestry-related rules and guidelines already in place within the geographic region of Neuse River waterdog. As revised, this exception to incidental take prohibition, when properly implemented, will promote forestry management activities while also providing for the conservation the Neuse River waterdog.
29 Comment: One commenter recommended that the Service remove references to silviculture being a potential source of pollution in the description of critical habitat units, indicating that the forestry sector in general believes that, although statements about silvicultural runoff as a source of pollution may have had some credence a generation or more ago, the advent of BMPs, their proven effectiveness, and their high implementation rates call for the elimination of these statements, and those similar to it, in a modern 4d rule.

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