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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations measures and reduce the likelihood of survival and recovery. One commenter mentioned that the proposed exceptions in the 4d rule concerning silviculture practices are an inappropriate and unlawful use of a 4d rule and that the Services proposal to provide for the conservation needs of these sensitive aquatic species via BMPs and Sustainable Forestry Initiative/Forest Stewardship Council/American Tree Farm System certification standards is not a serious one. The commenters indicated that the proposed 4d rule fails to set forth a protective regulation that provides for the specific conservation needs of the Carolina madtom and Neuse River waterdog.
Our Response: Section 4d of the Act states that the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of species listed as threatened. Section 4d of the Act provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. As described below under II. Final Rule Issued Under Section 4d of the Act for the Neuse River Waterdog, the provisions of our 4d rule will promote conservation of the Neuse River waterdog by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Neuse River waterdog. The prohibitions and exceptions to the prohibitions identified in the 4d rule are considered necessary and advisable for the conservation of the Neuse River waterdog.
Development and refinement of forest management BMPs has resulted in substantial improvements to forestrys impacts on water quality in recent decades, and the reduced risks of these practices to water quality justify the Services inclusion of a 4d exception for forestry for the Neuse River waterdog. North Carolina Forestry BMPs, properly implemented, protect water quality and help conserve aquatic species, including the Neuse River waterdog.
The Service has determined that the Carolina madtom meets the definition of an endangered species, and the Act does not allow issuance of a 4d rule for a species listed as endangered.
20 Comment: Several comments we received during the reopened comment period July 30August 31, 2020, including from the NCFS, indicated the Service did not explain or justify the necessity for a two-zoned SMZ, SMZs wider than those already recommended by State forestry BMPs within the
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geographic range of Neuse River waterdog, or the application of SMZs related to Virginia and North Carolina trout waters to waters where the Neuse River waterdog occurs. Some comments further suggested that references to trout rules or BMPs beyond those already required within the range of Neuse River waterdog would be confusing and challenging to implement. Several such comments further questioned any additional conservation benefits that SMZs wider than those currently recommended in State BMPs would provide.
Our Response: It was the Services intent to provide additional discussion and explanation for the exception under 4d resulting from incidental take from certain forestry practices, based on comments received on the May 22, 2019, proposed rule 84 FR 23644.
During that comment period, we received several comments stating that the proposed 4d rule language, referring to highest standard BMPs was too vague or confusing. By referring to BMPs related to trout waters specifically SMZs, it was the Services intent to use a frame of reference that would be familiar to forest landowners and managers for species sensitive to sedimentation and thermal effects on stream waters to better explain how the exception would apply, but not to apply those particular parameters. Comments that mentioned trout rules seemed to be referring to the preamble language, rather than the regulation text. The proposed regulation text outlined BMPs, but did not include references to trout.
However, we understand that the references to trout waters in the preamble has caused confusion for multiple reasons, in part because the Neuse River waterdog occurs in a region different from trout, and it was not clearly stated how the Neuse River waterdog is similarly sensitive to sedimentation a primary factor responsible for the derivation of BMPs specific to trout waters. There was also confusion as a result of multiple other regulations and recommended practices that already exist in the Neuse and Tar watersheds where the species occurs i.e., riparian buffer rules and North Carolinas FPGs and for which the NCFS maintains a BMP manual with recommended practices for meeting compliance with FPGs. The concerns of the commenters have been carefully considered and addressed by revising the 4d rule to specify the habitat management goals necessary to provide for the breeding, feeding, and sheltering needs of the Neuse River waterdog, rather than prescribing a particular
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management practice with which to achieve necessary habitat protection e.g., we removed the two-zoned SMZs of variable width; see II. Final Rule Issued Under Section 4d of the Act for the Neuse River Waterdog, below, for revisions.
21 Comment: A couple of commenters stated that SMZs are part of a suite of BMPs and that they should not be proposed alone, indicating that we should include mention of all BMPs in the exception for incidental take.
Our Response: We agree with this comment and note that the Service proposed the exception under section 4d for incidental take from certain forestry practices to include multiple State-approved BMPs, highlighting considerations for SMZs because of their importance to stream habitat, along with considerations for stream crossings, skid trails, and access roads.
However, during both comment periods, commenters have demonstrated particular concern over that portion of the proposed exception on forestry SMZs. As noted in the previous response, we have revised this exception for incidental take under section 4d by removing the requirement of a two-zoned SMZ; the revision now includes exceptions for take associated with practices following forestry BMPs so that it will not add confusion and will be more practical to implement along with existing FPGs and State-recommended BMPs, while also promoting conservation of Neuse River waterdog and its habitat.
22 Comment: We received many comments stating that State-approved BMPs are sufficient for the protection of the Neuse River waterdog because BMP
implementation rates are high. They indicate that because BMP
implementation rates are high, we should provide an exception for incidental take for all State-approved BMPs.
Our Response: We agree that when used and properly implemented, BMPs can offer a substantial improvement to water quality compared to forestry operations where BMPs are not properly implemented; it is for this reason that the Service has included an exception for incidental take for forest management that adheres to BMPs in the 4d rule for the Neuse River waterdog. The commenters provided information that indicates rates of forestry BMP implementation across the Southeast, and the nation, are generally high. We agree but assert that forest management is not risk-free for wildlife or water quality. Some studies focused on the effects of silvicultural activities on aquatic salamanders have found that
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