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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations population, permanent or long-term alteration of streambed habitat that reduces its suitability for supporting the species e.g., filling of habitat crevices used for nesting and home range retreats with fine sediments, and a much longer generation time than most insects approximately 6 years; Service 2021b, p.7.
24 Comment: Some commenters stated that the Service did not provide evidence that the Neuse River waterdog is a sensitive species, and at least one commenter stated that failure to describe its sensitivity or similarity to trout sensitivity is arbitrary and capricious.
Our Response: As discussed above, the Act requires that we make determinations solely on the basis of the best available scientific and commercial data available 16 U.S.C. 1533b1A.
In making these determinations, we consider the ecological requirements of the species and how they are affected by the various factors. We included several details related to the ecological requirements of the Neuse River waterdog e.g., flow, dissolved oxygen, referenced the SSA report, and included a summary of risk factors to the species in the proposed rule published on May 22, 2019 84 FR 23644. We further provided information in the document published on July 30, 2020 85 FR
45839, including statements on the effects of sedimentation e.g., Highly turbid, silted stream water can clog the external gills of waterdogs, and can also decrease the streams insect population, an important source of food Service 2021b, p. 8 85 FR 45839, July 30, 2020, p. 85 FR 45843. The commenters may not have realized that the July 30, 2020, document presenting revisions to the proposed rule was not a complete reproposal; it presented only the substantive proposed revisions to the May 22, 2019, proposed rule. However, the concerns of the commenters have been carefully considered and addressed by removing references to trout and revising the final rule and SSA
report to include more detailed information about the Neuse River waterdog, its habitat requirements, and sensitivity to threats, particularly sedimentation, using the best available scientific information about this species and relevant information from related species i.e., gilled, aquatic salamanders. These revisions provide evidence and justification that the Neuse River waterdog is a sensitive species in need of protection from risk factors that threaten survival, persistence, and habitat.
25 Comment: A few commenters highlighted proposed or final rules for
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other aquatic species that they say indicate a Service precedent for accepting State-approved forestry BMPs as sufficient for protection of a species i.e., they appear as an exception to the take prohibition in a 4d rule. They indicated this precedent should apply to the 4d rule for Neuse River waterdog.
Two related comments expressed concern that this rule would set a precedent not founded in the best available scientific information, if finalized with forest management requirements in the 4d exceptions that exceed State-recommended BMPs for the areas in which the Neuse River waterdog occurs.
Our Response: First, 4d rules for threatened species are intended to establish species-specific regulations to provide for the conservation of a threatened species, and may incentivize beneficial actions for the species and reduce the regulatory burden on forms of take that are compatible with the conservation of the species. The 4d rules provide protection necessary and advisable to conserve the Neuse River waterdog by outlining prohibitions for the protection of the species, and if appropriate, any exceptions from the prohibitions. The species-specific nature of the rules indicates they do not set a precedent for other species. It may be practical to consider implications of how 4d rules are implemented for species that have overlapping geographic ranges and habitat needs, but we do not agree with the premise that any 4d rule sets a precedent for another species. Second, several of the comments referenced language that was not provided in the context of discussions for threatened species and a 4d rule and is irrelevant in this context. For example, commenters referenced language that refers to Alabamas forestry BMPs in the Summary of Factors Affecting the Species discussion in the final rule listing the Black Warrior waterdog Necturus alabamensis as endangered 83 FR 257, January 3, 2018, see p. 83
FR 263. Other comments we received referred to language for critical habitat designationnot for species listing and 4d rulesthat listed BMPs among activities that can ameliorate threats to critical habitat. Comments also referenced the pearl darter Percina aurora, a species listed as threatened in 2017 when the blanket 4d rule applied, extending all endangered species protections to threatened species; that listing rule 82 FR 43885;
September 20, 2017 included silviculture with BMPs among actions unlikely to result in a violation of the
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Acts section 9, and it also listed poor silviculture among the factors affecting the species. Finally, some comments referenced the trispot darter Etheostoma trisella, which is a threatened species with a speciesspecific 4d rule that includes an exception to the incidental take prohibitions for take associated with silviculture. The final 4d rule for the trispot darter 85 FR 61614; September 30, 2020 includes an exception for incidental take resulting from silviculture practices and forest management activities. Conditions of this exception include requirements for implementing State BMPs for SMZs, stream crossings, and forest roads, among others; removal of logging debris from channels; and a temporal window that only allows for the exception outside of that species spawning season i.e., the exception only applies for a portion of the year. Although the trispot darter final 4d rule is the most relevant among the commenters examples i.e., a threatened species with a 4d rule exception for silviculture, the Service is required to make the listing determination for the Neuse River waterdog based on the best available science and develop a speciesspecific 4d rule based on what is necessary and advisable to provide for the conservation this particular species.
The Services offices operate within discrete geographic regions, in part, to facilitate partnerships with State and other Federal agencies, Tribal communities, industry, and other nongovernmental organizations in their work area; through these partnerships, we are well poised to consider existing local environmental rules, local environmental conditions, and other factors, and to tailor the management needs of species. Prohibitions and exceptions for a threatened species outlined in its 4d rule are specific to the considerations for that particular species.
The species-specific nature of 4d rules is inherently resistant to precedent setting, because the Service must consider the needs of the species being listed as threatened and issue regulations deemed necessary and advisable to provide for the conservation of that species. The proposed 4d rule for the Neuse River waterdog did not prescribe management restrictions; rather, it outlined prohibitions e.g., take to ensure the species and its habitat are not adversely affected, and exceptions to those prohibitions for incidental take resulting from activities that are not expected to adversely affect the species, and may
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