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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Rules and Regulations
to avoid any take implications. Further, those forest landowners who are thirdparty-certified to a credible forest management standard are providing audited certainty that BMP
implementation is taking place across the landscape.
To address any uncertainty regarding which silvicultural and forest management BMPs will satisfy this exception for incidental take resulting from silvicultural practices and forest management activities, our regulations specify the conditions that must be met.
We revised our section 4d 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 Neuse River waterdog, which will provide for the conservation of the species. In waterbodies that support listed aquatic 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 2020ab, p. 10.
Neuse River waterdogs require cool, well-oxygenated water, and a clean stream bottom USFWS 2020ab, p. 10.
A lack of these features limits the number of waterdogs 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. The exception for incidental take associated with these activities seeks to ensure these characteristics are maintained for the conservation of the Neuse River waterdog.
Under this final 4d rule, all prohibitions and provisions of section 9a1 of the Act apply to the Neuse River waterdog, except that incidental take resulting from the following actions will not be prohibited:
1 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, and follow-up monitoring.
2 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
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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 composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. Secondto third-order, headwater streams reconstructed in this way offer suitable habitats for the Neuse River waterdog and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, feeding, migration, and other normal behaviors.
Prior to restoration action, surveys to determine presence of Neuse River waterdog must be performed, and if located, waterdogs must be relocated prior to project implementation.
3 Bank stabilization projects that use bioengineering methods to replace preexisting, 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 species vegetation includes woody and herbaceous species appropriate for the region and habitat conditions. These methods will not include the sole use of quarried rock rip-rap or the use of rock baskets or gabion structures.
4 Forestry-related activities, including silvicultural practices, forest management activities, and fire control tactics, that implement State-approved BMPs. In order for this exception to apply to forestry-related activities, these BMPs must achieve all of the following:
a Establish a streamside management zone alongside the margins of each waterway.
b Restrain visible sedimentation caused by the forestry-related activity from entering the waterway.
c Maintain native groundcover within the streamside management zone of the waterway, and promptly re-

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establish native groundcover if disturbed.
d Limit installation of vehicle or equipment crossings of the waterway to only where necessary for the forestryrelated activity. Such crossings must:
i Have erosion and sedimentation control measures installed to divert surface runoff away and restrain visible sediment from entering the waterway;
ii Allow for movement of aquatic organisms within the waterway; and iii Have native groundcover applied and maintained through completion of the forestry-related activity.
e Prohibit the use of tracked or wheeled vehicles for reforestation site preparation within the streamside management zone of the waterway.
f Prohibit locating log decks, skid trails, new roads, and portable mill sites in the streamside management zone of the waterway.
g Prohibit obstruction and impediment of the flow of water within the waterway, caused by direct deposition of debris or soil by the forestry-related activity.
h Maintain shade over the waterway similar to that observed prior to the forestry-related activity.
i Prohibit discharge of any solid waste, petroleum, pesticide, fertilizer, or other chemical into the waterway.
We reiterate that these actions and activities may have some minimal level of take of the Neuse River waterdog, but are unlikely to negatively impact the species conservation and recovery efforts. To the contrary, 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 4d rule will correct some of these problems, creating more favorable habitat conditions for the species.
We may issue 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 propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our State
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