Federal Register, Volume 85 Issue 18 (Tuesday, January 28, 2020)

[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Proposed Rules]
[Pages 5072-5122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01012]

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Vol. 85

Tuesday,

No. 18

January 28, 2020

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Big Sandy Crayfish and the Guyandotte River Crayfish;
Proposed Rule

Federal Register / Vol. 85 , No. 18 / Tuesday, January 28, 2020 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2019-0098; 4500090023]
RIN 1018-BE19

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Big Sandy Crayfish and the Guyandotte River
Crayfish

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Big Sandy crayfish (Cambarus
callainus) and the Guyandotte River crayfish (C. veteranus) under the
Endangered Species Act of 1973, as amended (Act). In total,
approximately 582 stream kilometers (skm) (362 stream miles (smi)) in
Martin and Pike Counties, Kentucky; Buchanan, Dickenson, and Wise
Counties, Virginia; and McDowell, Mingo, and Wayne Counties, West
Virginia, are proposed as critical habitat for the Big Sandy crayfish.
Approximately 135 skm (84 smi) in Logan and Wyoming Counties, West
Virginia, are proposed as critical habitat for the Guyandotte River
crayfish. If we finalize this rule as proposed, it would extend the
Act's protections to these species' critical habitat. We also announce
the availability of a draft economic analysis of the proposed
designation of critical habitat for these species.

DATES: We will accept comments on the proposed rule or draft economic
analysis (DEA) that are received or postmarked on or before March 30,
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. We must receive requests for a public
hearing, in writing, at the address shown in FOR FURTHER INFORMATION
CONTACT by March 13, 2020.

ADDRESSES: Written comments: You may submit comments on the proposed
rule or DEA by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R5-ES-2019-0098,
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 Rules link to locate this document. You may submit a comment
by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R5-ES-2019-0098, 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).
Document availability: This proposed rule and the DEA are available
on the internet at http://www.regulations.gov at Docket No. FWS-R5-ES-
2019-0098, and at the North Atlantic-Appalachian Regional Office (see
FOR FURTHER INFORMATION CONTACT).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R5-ES-2019-0098, and at the North Atlantic-Appalachian
Regional Office (see FOR FURTHER INFORMATION CONTACT). Any additional
tools or supporting information that we may develop for this critical
habitat designation will also be available at the Regional Office set
out above, and may also be included in the preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Martin Miller, Chief, Endangered
Species, U.S. Fish and Wildlife Service, North Atlantic-Appalachian
Regional Office, 300 Westgate Center Drive, Hadley, MA 01035; telephone
413-253-8615. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, any species that is
determined to be an endangered or threatened species requires critical
habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule.
This rule proposes to designate critical habitat for two species of
crayfish, the Big Sandy crayfish and the Guyandotte River crayfish. We
listed the Big Sandy crayfish as a threatened species and the
Guyandotte River crayfish as an endangered species on April 7, 2016 (81
FR 20450).
The basis for our action. Under the Act, any species that is
determined to be an endangered or threatened species shall, to the
maximum extent prudent and determinable, have habitat designated that
is considered to be critical habitat. Section 4(b)(2) of the Act states
that the Secretary shall designate and make revisions to critical
habitat on the basis of the best available scientific data after taking
into consideration the economic impact, the impact on national
security, and any other relevant impact of specifying any particular
area as critical habitat. Section 3(5)(A) of the Act defines critical
habitat as (i) the specific areas within the geographical area occupied
by the species, at the time it is listed, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species. The Secretary may exclude an area from
critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species.
The critical habitat areas we are proposing to designate in this
rule constitute our current best assessment of the areas that meet the
definition of critical habitat for the Big Sandy and Guyandotte River
crayfishes. We propose to designate:
Approximately 582 stream kilometers (skm) (362 stream
miles (smi)) of streams for the Big Sandy crayfish.
Approximately 135 skm (84 smi) of streams for the
Guyandotte River crayfish.
We prepared an economic analysis of the proposed designation of
critical habitat. In order to consider economic impacts, we prepared an
analysis of the economic impacts of the proposed critical habitat
designation. We hereby announce the availability of the draft economic
analysis and seek public review and comment.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), we are
seeking comments

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from independent specialists to ensure that this critical habitat
proposal is based on scientifically sound data and analyses. We have
invited these peer reviewers to comment on our specific assumptions and
conclusions in this proposal to designate critical habitat. Because we
will consider all comments and information we receive during the
comment period, our final determinations may differ from this proposal.

Information Requested

Public Comments

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to answer the following questions:
(a) Are the species threatened by taking or other human activity,
and would identification of critical habitat be expected to increase
the degree of such threat to the species?
(b) Is the present or threatened destruction, modification, or
curtailment of a species' habitat or range a threat to the species, or
do the threats to the species' habitats stem solely from causes that
cannot be addressed through management actions resulting from
consultation under section 7(a)(2) of the Act?
(c) Do any areas meet the definition of critical habitat?
(2) Specific information on:
(a) The amount and distribution of Big Sandy crayfish or Guyandotte
River crayfish habitat;
(b) What areas, that were occupied at the time of listing (i.e.,
are currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management 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. We particularly seek
comments regarding:
(i) Whether occupied areas are inadequate for the conservation of
the species; and
(ii) Specific information that supports the determination that
unoccupied areas will, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible effects on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
effects of designating any area that may be included in the final
designation, and the benefits of including or excluding areas that may
be affected.
(5) Information on the extent to which the description of probable
economic effects in the draft economic analysis (DEA) is a reasonable
estimate of the likely economic effects.
(6) Information on land ownership within proposed critical habitat
areas, particularly tribal land ownership (allotments, trust, and/or
fee) so that the Service may best implement Secretarial Order 3206
(American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act).
(7) 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. Specific information we seek includes
information on any conservation plans within the proposed critical
habitat areas that provide conservation for the Big Sandy or Guyandotte
River crayfishes and their habitats.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
DEA, and how the consequences of such reactions, if likely to occur,
would relate to the conservation and regulatory benefits of the
proposed critical habitat designation.
(9) 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.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note also that comments merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
we must make determinations ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
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. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Northeast Regional Office (see FOR FURTHER
INFORMATION CONTACT).

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
above in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing.

Previous Federal Actions

Federal actions prior to April 7, 2015, are described in the
proposed rule to list the Big Sandy crayfish and the Guyandotte River
crayfish under the Act (80 FR 18710; April 7, 2015).
On April 7, 2016 (81 FR 20450), we listed the Big Sandy crayfish as
a threatened species and the Guyandotte River crayfish as an endangered
species. In the April 7, 2015, proposed listing rule (80 FR 18710), we
stated that designating critical habitat at that time

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was prudent but not determinable. On March 28, 2018, the Service
received a notice of intent (NOI) to sue letter from the Center for
Biological Diversity (CBD) alleging that the Service failed to
designate critical habitat for the Big Sandy crayfish and the
Guyandotte River crayfish within the timeframe set forth in the Act. On
May 23, 2018, the Service responded to CBD's NOI, explaining that the
proposed critical habitat designations for these two species were not
currently among the highest priority actions outlined in our 7-year
National Listing Workplan and more specific fiscal year 2018 Workplan.
On June 20, 2018, CBD filed suit alleging that the Service failed to
designate critical habitat within the Act's required timeline (CBD v.
Zinke, No. 2:18-cv-11111 (S.D.W.Va.)). On September 21, 2018, we filed
an unopposed motion to stay litigation (No. 2:18-cv-01058 (S.D.W.Va.))
until December 31, 2019. On October 18, 2018, the court granted our
motion to stay (No. 2:18-cv-01058 (S.D.W.Va.)).

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands or require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Where a landowner requests Federal agency funding or
authorization for an action that may affect a listed species or
critical habitat, the consultation requirements of section 7(a)(2) of
the Act would apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that support the life-history needs of the species,
including, but not limited to, water characteristics, soil type,
geological features, prey, vegetation, symbiotic species, or other
features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the species status assessment (SSA) report, if
available, and information developed during the listing process for the
species. Additional information sources may include any generalized
conservation strategy, criteria, or outline that may have been
developed for the species; the recovery plan for the species; articles
in peer-reviewed journals; conservation plans developed by states and
counties; scientific surveys

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and studies; biological assessments; other published materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for the recovery of the species. Areas that are important for the
conservation of the listed species, both inside and outside the
critical habitat designation, will continue to be subject to: (1)
Conservation actions implemented under section 7(a)(1) of the Act; (2)
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species; and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans (HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts indicates a
different outcome.

Prudency Determination

Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that the Secretary shall designate critical habitat at
the time a species is determined to be an endangered or threatened
species, to the maximum extent prudent and determinable. Our
regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is
not required to, determine that a designation would not be prudent in
the following circumstances:
(i) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem from causes that
cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) After analyzing the best scientific data available, the
Secretary otherwise determines that designation of critical habitat
would not be prudent.
We did not identify any of the factors above to apply to the Big
Sandy crayfish or the Guyandotte River crayfish. Therefore, we find
that designation of critical habitat is prudent for both the Big Sandy
crayfish and the Guyandotte River crayfish.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking; or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
As we discussed in the proposed rule (80 FR 18710; April 7, 2015)
and in accordance with 16 U.S.C. 1533(b)(6)(C)(ii)), we concluded that
critical habitat was not determinable at that time because we were
seeking additional information on the Big Sandy and Guyandotte River
crayfishes, but that we would make a critical habitat determination no
later than 1 year following publication of the final listing rule. We
have since received and reviewed additional data on the biological
needs of these species and the habitat characteristics where they are
located. This and other information represent the best scientific data
available and lead us to conclude that the designation of critical
habitat is determinable for the Big Sandy and the Guyandotte River
crayfishes.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas within the geographical
area occupied by the species at the time of listing to designate as
critical habitat, we consider the physical or biological features that
are essential to the conservation of the species and which may require
special management considerations or protection. These include, but are
not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
The features may also be combinations of habitat characteristics
and may encompass the relationship between characteristics or the
necessary amount of a characteristic essential to support the life
history of the species. In considering whether features are essential
to the conservation of the species, the Service may consider an
appropriate quality, quantity, and spatial and temporal arrangement of
habitat characteristics in the context of the life-history needs,
condition, and status of the species. We derived the specific physical
or biological features required for the Big Sandy crayfish and the
Guyandotte River crayfish from studies and observations of these
species' habitat, ecology, and life history, which are discussed in
full in the species' proposed and final listing rules (80 FR 18710,
April 7, 2015; 81 FR 20450, April 7, 2016, respectively). The primary
habitat elements that influence resiliency of these species include,
but are not limited to, the degree of sedimentation, water quality
thresholds, and extent of habitat connectedness.

Summary of Essential Physical or Biological Features

We derived the specific physical or biological features required
for the Big Sandy crayfish and the Guyandotte River crayfish from
studies and observations of these species' habitat, ecology, and life
history, which are discussed in full in the species' proposed and final
listing rules (80 FR 18710, April 7, 2015; 81 FR 20450, April 7, 2016,
respectively), and summarized here. While data are sparse with which to
quantitatively define the optimal or range of suitable conditions for a
specific biological or physical feature needed by these species (e.g.,
degree of sedimentation, water quality thresholds,

[[Page 5076]]

extent of habitat connectedness), the available species-specific
information, in combination with information from other similar
crayfish species, provides sufficient information to qualitatively
discuss the physical and biological features needed to support these
species. As discussed in the proposed (80 FR 18710, April 7, 2015) and
final (81 FR 20450, April 7, 2016) listing rules, these species are
classified as ``tertiary'' (stream) burrowing crayfish, meaning that
they do not exhibit complex burrowing behavior; instead, of digging
holes they shelter in shallow excavations under loose cobbles and
boulders on the stream bottom (Loughman 2013, p. 1). These species are
opportunistic omnivores, with seasonal-mediated tendencies for animal
or plant material (Thoma 2009, p. 13; Loughman 2014, p. 21). The
general life cycle pattern of these species is 2 to 3 years of growth,
maturation in the third year, and first mating in midsummer of the
third or fourth year (Thoma 2009, entire; Thoma 2010, entire).
Following midsummer mating, the annual cycle involves egg laying in
late summer or fall, spring release of young, and late spring/early
summer molting (Thoma 2009, entire; Thoma 2010, entire). The Big Sandy
and Guyandotte River crayfishes' likely lifespan is 5 to 7 years, with
the possibility of some individuals reaching 10 years of age (Thoma
2009, entire; Thoma 2010, entire; Loughman 2014, p. 20).
Suitable habitat for both the Big Sandy crayfish and the Guyandotte
River crayfish appears to be limited to higher elevation, clean,
medium-sized streams and rivers in the upper reaches of the Big Sandy
and Guyandotte river basins, respectively (Jezerinac et al. 1995, p.
171; Channell 2004, pp. 21-23; Taylor and Shuster 2004, p. 124; Thoma
2009, p. 7; Thoma 2010, pp. 3-4, 6; Loughman 2013, p. 1; Loughman 2014,
pp. 22-23). Both species are associated with the faster moving water of
riffles and runs or pools with current (Jezerinac et al. 1995, p. 170).
An important habitat feature for both species is an abundance of large,
unembedded slab boulders on a sand, cobble, or bedrock stream bottom
(Loughman 2013, p. 2; Loughman 2014, pp. 9-11). Excessive sedimentation
leading to substrate embeddedness creates unsuitable conditions for
these species (Jezerinac et al. 1995, p. 171; Channell 2004, pp. 22-23;
Thoma 2009, p. 7; Thoma 2010, pp. 3-4; Loughman 2013, p. 6). As such,
we have determined that the following physical and biological features
(PBFs) are essential for the conservation of the Big Sandy and
Guyandotte River crayfishes:
(1) Fast-flowing stream reaches with unembedded slab boulders,
cobbles, or isolated boulder clusters within an unobstructed stream
continuum (i.e., riffle, run, pool complexes) of permanent, moderate-
to large-sized (generally third order and larger) streams and rivers
(up to the ordinary high water mark as defined at 33 CFR 329.11).
(2) Streams and rivers with natural variations in flow and seasonal
flooding sufficient to effectively transport sediment and prevent
substrate embeddedness.
(3) Water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH,
conductivity, dissolved oxygen) sufficient for the normal behavior,
growth, reproduction, and viability of all life stages of the species.
(4) An adequate food base, indicated by a healthy aquatic community
structure including native benthic macroinvertebrates, fishes, and
plant matter (e.g., leaf litter, algae, detritus).
(5) Aquatic habitats protected from riparian and instream
activities that degrade the physical and biological features described
in (1) through (4), above, or cause physical (e.g., crushing) injury or
death to individual Big Sandy or Guyandotte River crayfish.
(6) An interconnected network of streams and rivers that have the
physical and biological features described in (1) through (4), above,
that allow for the movement of individual crayfish in response to
environmental, physiological, or behavioral drivers. The scale of the
interconnected stream network should be sufficient to allow for gene
flow within and among watersheds.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the Big Sandy
and Guyandotte River crayfishes may require special management
considerations or protections to reduce the following threats: (1)
Resource extraction (coal mining, timber harvesting, and oil and gas
development); (2) road construction and maintenance (including unpaved
roads and trails); (3) instream dredging or construction projects; (4)
off-road vehicle (ORV) use; and (5) other sources of non-point source
pollution. These activities are discussed in more detail under Summary
of Factors Affecting the Species in the final listing rule (81 FR
20450; April 7, 2016). These threats are in addition to potential
adverse effects of drought, floods, or other natural phenomena.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices (BMPs)
designed to reduce erosion, sedimentation, and stream bank destruction;
development of alternatives that avoid and minimize stream bed
disturbances; regulation of ORV use in or near streams; and reduction
of other watershed and floodplain disturbances that contribute excess
sediments or pollutants into the water.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are proposing to designate
critical habitat in areas within the geographical area occupied by the
Big Sandy crayfish and Guyandotte River crayfish at the time of listing
in 2016. For the Guyandotte River crayfish, we also are proposing to
designate three specific streams outside the geographical area occupied
by the species at the time of listing because we have determined that a
designation limited to occupied areas would be inadequate to ensure the
conservation of the species. These currently unoccupied streams are
within the larger occupied watershed of the Guyandotte River crayfish's
range and adjacent to currently occupied streams. Proposed critical
habitat includes the water and stream channel up to the ordinary high
water mark as defined at 33 CFR 329.11.
The current distribution of both the Big Sandy and the Guyandotte
River crayfishes is fragmented and much reduced from their historical
distributions. As specified in the Service's recovery outline for these
species (Service 2018, entire), we anticipate that recovery will
require protection of existing populations and habitat for both
species, and in the case of the Guyandotte River crayfish,

[[Page 5077]]

reestablishing populations in some historically occupied streams where
the species is presumed extirpated. These additional populations will
increase the species' resiliency, representation, and redundancy,
thereby increasing the likelihood that it will sustain populations over
time.
Sources of data for this proposed critical habitat designation
include crayfish survey and habitat assessment reports (Jezerinac et
al. 1995, entire; Channell 2004, entire; Taylor and Shuster 2004,
entire; Thoma 2009a, entire; Thoma 2009b, entire; Thoma 2010, entire;
Loughman 2013, entire; Loughman 2014, entire; Loughman 2015a, entire;
Loughman 2015b, entire) and project-specific reports submitted to the
Service (Appalachian Technical Services, Inc. (ATS) 2009, entire; ATS
2010, entire; Vanasse Hangen Brustlin, Inc. (VHB) 2011, entire; ATS
2012a, entire; ATS 2012b, entire; Virginia Department of Transportation
(VDOT) 2014a, entire; VDOT 2014b, entire; VDOT 2015, entire; ATS 2017,
entire; Red Wing 2017, entire; Third Rock 2017, entire; Red Wing 2018,
entire).

Areas Occupied at the Time of Listing

As described in the final listing rule for the Big Sandy and
Guyandotte River crayfishes (81 FR 20450; April 7, 2016), the best
available data (stream surveys conducted between 2006 and 2016)
indicate that at the time of listing, the Big Sandy crayfish occupied
26 streams and rivers (generally third order and larger) in the Russell
Fork, Upper Levisa Fork, Lower Levisa Fork, and Tug Fork watersheds in
the upper Big Sandy River basin of Kentucky, Virginia, and West
Virginia. The Guyandotte River crayfish occupied two similarly-sized
streams in the Upper Guyandotte River basin of West Virginia.
We propose to designate a total of 4 occupied units, including a
total of 19 occupied subunits, as critical habitat for the Big Sandy
crayfish in the aforementioned watersheds. In addition, we propose to
designate one unit, including two occupied subunits, as critical
habitat for the Guyandotte River crayfish in the Upper Guyandotte River
watershed in West Virginia. For the Guyandotte River crayfish, we have
determined that a designation limited to the two occupied subunits
would be inadequate to ensure the conservation of the species. The
Guyandotte River crayfish is historically known from six connected
stream systems within the Upper Guyandotte River basin (its
geographical range); however, at the time of listing, the species was
limited to two isolated subunits in Pinnacle Creek and Clear Fork. In
our review, we determined that these two subunits do not provide
sufficient redundancy or resiliency necessary for the conservation of
the species. The Pinnacle Creek population is known from a 5.2-skm
(3.3-smi) stream reach, and survey data collected between 2009 and 2015
indicate that this area has low crayfish numbers. This small, isolated
population is at risk of extirpation from demographic and environmental
stochasticity, and a catastrophic event. The Clear Fork population
occurs along a 33-skm (22-smi) stream reach, and surveys from 2015
indicate several sites with ``robust'' crayfish numbers. The primary
risk to this population is extirpation from a catastrophic event;
however, because it is an isolated population, demographic or
stochastic declines present some risk.

Areas Outside of the Geographic Range at the Time of Listing

Because we have determined occupied areas alone are not adequate
for the conservation of the Guyandotte River crayfish, we have
evaluated whether any unoccupied areas are essential for the
conservation of the species. We are proposing as critical habitat three
currently unoccupied subunits within the Upper Guyandotte basin unit.
We have determined that each is essential for the conservation of the
species. Two of the currently unoccupied subunits, Guyandotte River and
Indian Creek, provide for an increase in the species' redundancy and,
by providing connectivity between the subunits, increase the resiliency
of the extant populations in Pinnacle Creek and Clear Fork. One of the
proposed unoccupied subunits, Huff Creek, is isolated from the other
units by the R.D. Bailey dam, but provides for increased overall
redundancy of the species and adds representation in this area of its
historical range. As discussed in the recovery outline for the species
(Service 2018, entire), successful conservation of the Guyandotte River
crayfish will require the establishment of additional populations
within the species' historical range; the three proposed unoccupied
subunits advance this goal. All three subunits have at least one of the
physical or biological features essential to the conservation of the
species. To reduce threats to the species and its habitat, the Service
is working cooperatively with the West Virginia Department of
Environmental Protection and the coal industry to develop protection
and enhancement plans for coal mining permits that may affect crayfish
streams and the Hatfield McCoy Trail system and the Federal Highway
Administration to avoid and minimize effects from ORV use in and around
Pinnacle Creek and other trail systems adjacent to crayfish streams. In
addition, the Service, West Virginia Department of Natural Resources,
Virginia Department of Game and Inland Fisheries, and West Liberty
University are working together to conduct additional research on both
the Guyandotte River and Big Sandy crayfishes, including research on
habitat use and activity patterns and captive holding and propagation.
We are reasonably certain that each unoccupied subunit will contribute
to the conservation of the species by furthering the preliminary
recovery goals identified in the recovery outline of increasing the
Guyandotte River crayfish's resiliency, redundancy and representation.
Bolstering the species' viability will reduce the species' risk of
extinction.

General Information on the Maps of the Proposed Critical Habitat
Designation

The 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. We include
more detailed information on the boundaries of the proposed critical
habitat designation in the discussion of individual units and subunits,
below. We will make the coordinates or plot points or both on which
each map is based available to the public on http://www.regulations.gov
under Docket No. FWS-R5-ES-2019-0098, and at the North Atlantic-
Appalachian Regional Office (see FOR FURTHER INFORMATION CONTACT,
above). When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by pavement, buildings, and other structures because such lands lack
physical or biological features necessary for the Big Sandy and
Guyandotte River crayfishes. The scale of the maps we prepared under
the parameters for publication within the Code of Federal Regulations
may not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as critical habitat. Therefore, if
the critical habitat is finalized as proposed, a Federal action
involving these lands would not trigger section 7 consultation under
the Act with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or

[[Page 5078]]

biological features in the adjacent critical habitat.
Under Sec. Sec. 424.12(b)(1) and (2) of the implementing
regulations, the Service determines the appropriate scale for
designating critical habitat. This is further clarified in the final
rule titled, ``Implementing Changes to the Regulations for Designating
Critical Habitat'' (81 FR 7414; February 11, 2016; see Discussion of
Changes to Part 424 in that rule): The Service ``cannot and need not
make determinations at an infinitely fine scale.'' Thus, the Service
need not determine that each square inch, square yard, acre, or even
square mile independently meets the definition of ``critical habitat.''
In making its determination on the appropriate scale for designating
critical habitat, the Service may consider, among other things, the
life history of the species, the scales at which data are available,
and biological or geophysical boundaries (such as watersheds). For the
Big Sandy and the Guyandotte River crayfishes, we propose that streams
or stream segments (as opposed to individual occurrence locations) are
the appropriate units for designating critical habitat. We base this on
the following factors:
(1) The regional geology and stream morphology in the upper Big
Sandy and Upper Guyandotte River basins lead to a general abundance of
slab boulders and/or cobble in most streams, although in some areas
this habitat is sparse or occurs as isolated boulder clusters.
Furthermore, while continuous crayfish survey data do not exist (i.e.,
not every reach of every stream has been surveyed), more intensive
crayfish surveys in portions of the Russell Fork watershed and in Clear
Fork and Pinnacle Creek in the Upper Guyandotte basin indicate that the
Big Sandy and Guyandotte River crayfishes may occur throughout stream
reaches where the required physical and biological features (e.g.,
riffles and runs with unembedded slab boulders or unembedded boulder
clusters, adequate water quality, and connectivity) are present.
(2) Streams are dynamic, linear systems, and local water quality
parameters (e.g., dissolved oxygen, temperature, pH) can vary
temporally and are largely reliant on upstream conditions (barring
known point or non-point source discharges or other factors that affect
water quality more locally). Likewise, the various stream microhabitats
(e.g., riffles, runs, pools) with attendant fauna do not generally
occur in isolation, but form a continuous gradient along the stream
continuum. Because the known occupied Big Sandy and Guyandotte River
crayfish sites possess the required physical and biological features,
at least to some minimal degree, for these species to survive, and
because these physical and biological features are likely
representative of stream conditions beyond any single survey location,
we conclude that Big Sandy and Guyandotte River crayfish likely occupy,
or otherwise rely upon, stream areas beyond any single occurrence
location.
(3) Studies of other crayfish species suggest that adult and larger
juvenile Big Sandy and Guyandotte River crayfish likely move both
upstream and downstream in response to changes in environmental
conditions or local crayfish demographics, or for other behavioral or
physiological reasons (Momot 1966, pp. 158-159; Kerby et al. 2005, p.
407). The evidence also indicates that some individuals, especially
newly independent juveniles, may be passively dispersed to downstream
locations by swiftly flowing water (Loughman 2019).
Therefore, within the greater geographical ranges of the Big Sandy
crayfish and Guyandotte River crayfish (i.e., the upper Big Sandy River
basin and the Upper Guyandotte River basin, respectively), the general
morphology and connectedness of the streams and the life history of
these species lead us to reasonably conclude that both species likely
occupy, transit through, or otherwise rely upon stream reaches beyond
any known occurrence location. We acknowledge that some areas along a
stream segment proposed as critical habitat may not contain all of the
physical and biological features required by either species, either
naturally or as a result of habitat modification, but based on the
considerations discussed above, we conclude that streams or stream
segments are appropriate units of scale for describing critical habitat
for these species.
In summary, we propose to designate as critical habitat streams and
stream segments up to the ordinary high water mark that were occupied
at the time of listing and contain one or more of the physical and
biological features to support the life-history processes essential to
the conservation of the Big Sandy crayfish and the Guyandotte River
crayfish. Additionally, for the Guyandotte River crayfish, we propose
to designate three subunits outside the geographical range of that
species occupied at the time of listing; however, these subunits are
within the larger occupied watershed. Two of these subunits have
historical records of the species, and one subunit, while not having a
record of the species, is within its historical range and provides
connectivity between occupied and unoccupied subunits. These unoccupied
subunits provide for increased redundancy, resiliency, and
representation of the Guyandotte River crayfish. We propose specific
critical habitat unit/subunit boundaries based on the following general
criteria:
(1) We delineated areas within the historical range of each species
that had positive survey data between 2006 and 2016 (the time of
listing). For the Guyandotte River crayfish, we also delineated three
stream segments as unoccupied critical habitat.
(2) Upstream termini of proposed critical habitat units/subunits
are located at the confluence of the primary stream and a smaller named
tributary stream (usually a second-order stream). These termini are
generally within about 5 skm (3.1 smi) upstream of a known crayfish
occurrence record. The downstream termini are usually located at the
confluence of the primary stream and the next larger receiving stream
or river. In some instances, dams or reservoirs are used to demark
critical habitat units/subunits.
(3) We included intervening stream segments between occurrence
locations unless there are data suggesting the physical and biological
features required by the species are absent in the intervening segment.
(4) We describe the proposed critical habitat units/subunits by
their upstream and downstream coordinates (i.e., latitude and
longitude) and geographic landmarks (e.g., confluence of named streams
and/or a town or population center).
Within these stream segments, proposed critical habitat includes
the stream channel within the ordinary high water mark. As defined at
33 CFR 329.11, the ``ordinary high water mark'' on nontidal rivers is
the line on the shore established by the fluctuations of water and
indicated by physical characteristics such as a clear, natural line
impressed on the bank; shelving; changes in the character of soil;
destruction of terrestrial vegetation; the presence of litter and
debris; or other appropriate means that consider the characteristics of
the surrounding areas.
For the purposes of analyzing the potential economic effects of
proposed critical habitat designation for the Big Sandy and Guyandotte
River crayfishes, the critical habitat units/subunits are determined to
be in either private, Federal, or State ownership. In Kentucky,
Virginia, and West Virginia, jurisdiction over the water itself is
maintained by the State or

[[Page 5079]]

Commonwealth; however, ownership of the stream bottom may vary
depending on specific State law or legal interpretation (Energy &
Mineral Law Institute 2011, pp. 409-427; Virginia Code at section 62.1-
44.3; West Virginia Department of Environmental Protection 2013,
section C). For the purposes of our economic analysis, we describe
ownership of proposed critical habitat units/subunits based on the
identification of the adjacent riparian landowner(s) (i.e., private,
Federal, or State entity).

Proposed Critical Habitat Designation

For the Big Sandy crayfish, we propose to designate approximately
582 skm (362 smi) in 4 units (including 19 subunits) in Kentucky,
Virginia, and West Virginia as critical habitat (see table 1, below).
These streams or stream segments are considered occupied at the time of
listing and represent the entire known range of the species and all
extant populations. Based on our review, we conclude that the units
occupied by the Big Sandy crayfish at the time of listing (described
below) are representative of the species' historical range and include
core population areas in the Russell Fork watershed in Virginia and the
upper Tug Fork watershed (e.g., Dry Fork) in West Virginia, as well as
other peripheral populations in Kentucky, Virginia, and West Virginia.
We determined that there is sufficient area for the conservation of the
Big Sandy crayfish within these occupied units, and we therefore do not
propose to designate any unoccupied critical habitat for the species.
The proposed units constitute our best assessment of areas that meet
the definition of critical habitat for the Big Sandy crayfish.

Table 1--Proposed Critical Habitat Units and Subunits for the Big Sandy Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stream length
Unit/watershed Subunit River/stream State County(ies) Occupied at listing -----------------
skm smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Levisa Fork........ ................. Dismal Creek....... VA Buchanan........... Yes................ 29.2 18.1
Unit 2: Russell Fork............. a Russell Fork....... KY/VA Buchanan, Yes................ 83.8 52.1
Dickenson, Pike.
b Hurricane Creek.... VA Buchanan........... Yes................ 5.9 3.7
c Indian Creek....... VA Buchanan, Dickenson Yes................ 7.4 4.6
d Fryingpan Creek.... VA Dickenson.......... Yes................ 4.6 2.9
e Lick Creek......... VA Dickenson.......... Yes................ 16.2 10.1
f Russell Prater VA Buchanan, Dickenson Yes................ 8.4 5.2
Creek.
g McClure River...... VA Dickenson.......... Yes................ 35.6 22.1
Open Fork.......... VA Dickenson.......... Yes................ 4.9 3.0
h Elkhorn Creek...... KY Pike............... Yes................ 8.5 5.3
i Cranes Nest River.. VA Dickenson, Wise.... Yes................ 24.6 15.3
Birchfield Creek... VA Wise............... Yes................ 6.9 4.3
j Pound River........ VA Dickenson, Wise.... Yes................ 28.5 17.7
Unit 3: Lower Levisa Fork........ a Levisa Fork KY Pike............... Yes................ 15.9 9.9
(upstream).
Levisa Fork KY Floyd, Johnson..... Yes................ 17.5 10.9
(downstream).
b Shelby Creek....... KY Pike............... Yes................ 32.2 20.0
Long Fork.......... KY Pike............... Yes................ 12.9 8.0
Unit 4: Tug Fork................. a Tug Fork (upstream) KY/VA/WV Buchanan, McDowell, Yes................ 106.1 65.9
Mingo, Wayne, Pike.
Tug Fork KY/WV Martin, Wayne...... Yes................ 11.7 7.3
(downstream).
b Dry Fork........... WV McDowell........... Yes................ 45.2 28.1
Bradshaw Creek..... WV McDowell........... Yes................ 4.6 2.9
c Panther Creek...... WV McDowell........... Yes................ 10.7 6.6
d Knox Creek......... KY/VA Buchanan, Pike..... Yes................ 16.6 10.3
e Peter Creek........ KY Pike............... Yes................ 10.1 6.3
f Blackberry Creek... KY Pike............... Yes................ 9.1 5.7
g Pigeon Creek....... WV Mingo.............. Yes................ 14.0 8.7
Laurel Fork........ WV Mingo.............. Yes................ 11.1 6.9
-----------------
Total:....................... ................. ................... ................. ................... ................... 582 362
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 2 identifies the ownership of lands adjacent to the entirely
aquatic Big Sandy crayfish proposed critical habitat.

Table 2--Land Ownership Adjacent to Proposed Critical Habitat Units for the Big Sandy Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State/local Private Total
Critical habitat unit -----------------------------------------------------------------------------------------------------------------
skm smi skm smi skm smi skm smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Levisa Fork............. 0 0 0 0 29 18 29 18
Unit 2: Russell Fork.................. 23 14 11 7 201 125 235 146
Unit 3: Lower Levisa Fork............. 0 0 0 0 79 49 79 49
Unit 4: Tug Fork...................... 0 0 11 7 228 142 239 149
-----------------------------------------------------------------------------------------------------------------
Grand Total BSC................... 23 14 22 14 537 334 582 362
--------------------------------------------------------------------------------------------------------------------------------------------------------

For the Guyandotte River crayfish, we propose to designate
approximately 135 skm (84 smi) in one unit, consisting of five
subunits, in West Virginia as critical habitat. Approximately 67 skm
(41 smi) in two subunits are considered occupied by the species at the
time of listing and represent all known extant populations (see table
3, below). However, we determined that these two subunits do not
provide sufficient resiliency, representation, or

[[Page 5080]]

redundancy to ensure the conservation of the species. Therefore, we
propose to designate approximately 68 skm (42 smi) in three subunits as
unoccupied critical habitat (see table 3, below). The proposed subunits
constitute our best assessment of areas that meet the definition of
critical habitat for the Guyandotte River crayfish.

Table 3--Proposed Critical Habitat Unit for the Guyandotte River Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stream length
Unit/watershed Subunit River/stream State County(ies) Occupied at listing -------------------------------
skm smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Upper Guyandotte......... a Pinnacle Creek...... WV Wyoming............ Yes................. 28.6 17.8
b Clear Fork.......... WV Wyoming............ Yes................. 24.9 15.5
Laurel Fork......... WV Wyoming............ Yes................. 13.1 8.1
c Guyandotte River.... WV Wyoming............ No.................. 35.8 22.2
d Indian Creek........ WV Wyoming............ No.................. 4.2 2.6
e Huff Creek.......... WV Wyoming, Logan..... No.................. 28.0 17.4
-------------------------------
Total:....................... ......... .................... ......... ................... .................... 135 84
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 4 identifies the ownership of lands adjacent to the entirely
aquatic Guyandotte River crayfish proposed critical habitat.

Table 4--Land Ownership Adjacent to Proposed Critical Habitat Units for the Guyandotte River Crayfish
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State/local Private Total
Critical habitat unit ---------------------------------------------------------------------------------------
skm smi skm smi skm smi skm smi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1:
Occupied.................................................... 0 0 6 4 60 38 67 41
Unoccupied.................................................. 0 0 16 10 52 32 68 42
---------------------------------------------------------------------------------------
Grand Total GRC......................................... 0 0 23 14 112 70 135 84
--------------------------------------------------------------------------------------------------------------------------------------------------------

Below, we present brief descriptions of all units/subunits and
reasons why they meet the definition of critical habitat for the Big
Sandy and Guyandotte River crayfishes.

Big Sandy Crayfish

Unit 1: Dismal Creek, Buchanan County, Virginia
This unit includes approximately 29.2 stream kilometers (skm) (18.1
stream miles (smi)) of Dismal Creek in the Upper Levisa Fork watershed.
The threats within this unit that may need special management
consideration include resource extraction (coal mining, timber
harvesting, and oil and gas development); road construction and
maintenance (including unpaved roads and trails); instream dredging or
construction projects; and other sources of non-point source pollution.
The upper limit of this unit is the confluence of Dismal Creek and
Laurel Fork, and the downstream limit is the confluence of Dismal Creek
and Levisa Fork. Recent surveys of Dismal Creek indicated an abundance
of unembedded slab boulders and boulder clusters, and live Big Sandy
crayfish have been collected in relatively high numbers from several
locations within this unit (Thoma 2009b, p. 10; Loughman 2015a, p. 26).
The Dismal Creek watershed is mostly forested; however, U.S. Geological
Survey (USGS) topographic maps and aerial imagery (ESRI) provide
evidence of legacy and ongoing surface coal mining throughout the
watershed. The narrow stream valley contains scattered residences and
small communities, commercial facilities, occasional gas wells, and
transportation infrastructure (i.e., roads and rail lines). There is a
large coal coke plant straddling Dismal Creek at the confluence of
Dismal Creek and Levisa Fork. This unit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. The Dismal Creek population
of Big Sandy crayfish represents the species' only representation in
the upper Levisa Fork watershed, which is physically isolated from the
rest of the Big Sandy basin by the Fishtrap Dam and Reservoir. The
Dismal Creek population appears to be relatively robust and contributes
to the representation and redundancy of the species.
Unit 2: Russell Fork
Unit 2 consists of the 10 subunits described below. The threats
within this entire unit that may need special management consideration
include resource extraction (coal mining, timber harvesting, and oil
and gas development); road construction and maintenance (including
unpaved roads and trails); instream dredging or construction projects;
and other sources of non-point source pollution.
Subunit 2a: Russell Fork, Buchanan and Dickenson Counties, Virginia,
and Pike County, Kentucky
Subunit 2a includes approximately 83.8 skm (52.1 smi) of the
Russell Fork mainstem from the confluence of Russell Fork and Ball
Creek at Council, Virginia, downstream to the confluence of Russell
Fork and Levisa Fork at Levisa Junction, Kentucky. Recent surveys of
the Russell Fork indicated an abundance of unembedded slab boulders,
boulder clusters, isolated boulders, and large cobbles, and live Big
Sandy crayfish have been captured at numerous locations within this
subunit (Thoma 2009b, p. 10; Loughman 2015a, p. 23). The Russell Fork
watershed is mostly forested; however, USGS topographic maps and aerial
imagery (ESRI) provide evidence of legacy and ongoing coal mining
throughout the watershed. In the upper portion of the watershed, the
narrow stream valley contains scattered residences and roads, but human
development increases farther downstream in the form of small
communities and towns, commercial facilities, and transportation
infrastructure (i.e., roads and rail lines). Approximately 12 skm (7.4
smi) of Subunit 2a is within the Jefferson National Forest and Breaks
Interstate Park. The remainder of the subunit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge

[[Page 5081]]

crossings or road easements. The Big Sandy crayfish population in
Subunit 2a appears to be relatively robust and provides important
connectivity between crayfish populations in several tributary streams
and rivers, contributing to their resiliency. Additionally, some Big
Sandy crayfish from Subunit 2a likely disperse to areas downstream in
the Levisa Fork basin, contributing to the species' representation and
redundancy.
Subunit 2b: Hurricane Creek, Buchanan County, Virginia
Subunit 2b includes approximately 5.9 skm (3.7 smi) of Hurricane
Creek, a tributary to Russell Fork. This subunit extends from the
confluence of Hurricane Creek and Gilbert Branch downstream to the
confluence of Hurricane Creek and Russell Fork at Davenport, Virginia.
Recent surveys of Hurricane Creek indicate an abundance of unembedded
slab boulders, boulders, and cobbles, and live Big Sandy crayfish have
been collected from two locations in lower Hurricane Creek (ATS 2009,
entire; VDOT 2014, entire). The USGS topographic maps and aerial
imagery (ESRI) indicate the Hurricane Creek watershed is relatively
intact forest, with the exception of ongoing oil or gas development on
the ridges to the north and south of the creek and scattered
residences, small agricultural fields, and roads in the narrow valley.
This subunit is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 2c: Indian Creek, Buchanan and Dickenson Counties, Virginia
This subunit includes approximately 7.4 skm (4.6 smi) of Indian
Creek, a tributary to Russell Fork. Subunit 2c extends from the
confluence of Indian Creek and Three Forks upstream of Duty, Virginia,
to the confluence of Indian Creek and Russell Fork below Davenport,
Virginia. Recent surveys of Indian Creek indicate an abundance of slab
boulders and boulders with low to moderate embeddedness, and live Big
Sandy crayfish have been collected from several locations (ATS 2009,
entire; ATS 2010, entire; Loughman 2015a, pp. 24-25). The USGS
topographic maps and aerial imagery (ESRI) indicate the lower portion
of the Indian Creek watershed is mostly forested, with the exception of
oil or gas development on a ridgeline to the west of the creek. The
upper portion of the watershed is dominated by a large surface coal
mine. The narrow creek valley contains scattered residences, small
agricultural fields, and roads. This subunit is located almost entirely
on private land, except for any small amount that is publicly owned in
the form of bridge crossings or road easements. This subunit
contributes to the redundancy of the species.
Subunit 2d: Fryingpan Creek, Dickenson County, Virginia
Subunit 2d includes approximately 4.6 skm (2.9 smi) of Fryingpan
Creek, a tributary to Russell Fork. This subunit extends from the
confluence of Fryingpan Creek and Priest Fork downstream to the
confluence of Fryingpan Creek and Russell Fork. Recent surveys of
Fryingpan Creek indicate an abundance of isolated slab boulders and
boulder clusters with low embeddedness, and live Big Sandy crayfish
have been collected from the lower reach of Fryingpan Creek (Loughman
2015a, pp. 24-25). The USGS topographic maps and aerial imagery (ESRI)
indicate the watershed is mostly intact forest, with the exception of
oil or gas development on some adjacent ridgelines and legacy coal
mining in the upper portion of the watershed. The narrow creek valley
contains scattered residences, small agricultural fields, and roads.
This subunit is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 2e: Lick Creek, Dickenson County, Virginia
Subunit 2e includes approximately 16.2 skm (10.1 smi) of Lick
Creek, a tributary of Russell Fork. This subunit extends from the
confluence of Lick Creek and Cabin Fork near Aily, Virginia, downstream
to the confluence of Lick Creek and Russell Fork at Birchfield,
Virginia. Recent surveys of Lick Creek indicate an abundance of
unembedded slab boulders and cobbles, with live Big Sandy crayfish
collected at several locations (ATS 2012a, entire; ATS 2012b, entire).
The USGS topographic maps and aerial imagery (ESRI) indicate the
watershed is mostly forested, with the exception of oil or gas
development on some adjacent ridgelines and legacy coal mining and
timber harvesting sites at various locations within the watershed. The
narrow creek valley contains scattered residences, small agricultural
fields, and roads. This subunit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 2f: Russell Prater Creek, Buchanan and Dickenson Counties,
Virginia
This subunit includes approximately 8.4 skm (5.2 smi) of Russell
Prater Creek, a tributary to Russell Fork. This subunit extends from
the confluence of Russell Prater Creek and Greenbrier Creek downstream
to the confluence of Russell Prater Creek and Russell Fork at Haysi,
Virginia. Recent surveys of Russell Prater Creek indicate abundant
unembedded slab boulders, boulders, and cobbles, with live Big Sandy
crayfish collected from two sites in the lower portion of the creek
(Thoma 2009b, p. 10; Loughman 2015a, pp. 22-23). The USGS topographic
maps and aerial imagery (ESRI) indicate the Russell Prater watershed is
mostly forested; however, legacy coal mines and valley fills occur
throughout the watershed. The narrow creek valley contains scattered
residences, commercial facilities, small agricultural fields, and
roads. This subunit is located almost entirely on private land, except
for any small amount that is publicly owned in the form of bridge
crossings or road easements. This subunit contributes to the redundancy
of the species.
Subunit 2g: McClure River and Creek and Open Fork, Dickenson County,
Virginia
Subunit 2g includes approximately 35.6 skm (22.1 smi) of the
McClure River and Creek, a major tributary to Russell Fork, and its
tributary stream Open Fork (4.9 skm (3.0 smi)). The McClure River and
Creek section extends from the confluence of McClure Creek and Wakenva
Branch downstream to the confluence of McClure River and Russell Fork.
Recent surveys of the McClure River indicated an often sandy bottom
with unembedded, isolated slab boulders and boulder clusters, with live
Big Sandy crayfish collected at several locations (Thoma 2009b, p. 18;
Loughman 2015a, p. 22). The McClure River valley contains scattered
residences, small communities, commercial mining-related facilities,
small agricultural fields, roads, railroads, and other infrastructure.
The riparian zone along much of the river appears to be relatively
intact.
The Open Fork section of Subunit 2g extends from the confluence of
Middle Fork Open Fork and Coon Branch downstream to the confluence of
Open Fork and McClure Creek at Nora, Virginia. Recent surveys of Open
Fork indicated unembedded, isolated slab

[[Page 5082]]

boulders and boulder clusters, with live Big Sandy crayfish collected
at one location (Loughman 2015a, p. 22). The narrow valley contains
scattered residences, some small agricultural fields, roads, and
railroads.
The USGS topographic maps and aerial imagery (ESRI) indicate the
McClure River watershed is mostly forested; however, legacy and active
coal mining occurs in the middle and upper portions of the watershed.
Natural gas development is also apparent on many of the adjacent
ridges, and recent or ongoing logging operations continue at several
locations in the watershed. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. This subunit contributes to
the redundancy of the species.
Subunit 2h: Elkhorn Creek, Pike County, Kentucky
Subunit 2h includes approximately 8.5 skm (5.3 smi) of Elkhorn
Creek, a tributary to Russell Fork. This subunit extends from the
confluence of Elkhorn Creek and Mountain Branch downstream to the
confluence of Elkhorn Creek and Russell Fork at Elkhorn City, Kentucky.
Recent surveys indicated unembedded slab boulders and boulders in
Elkhorn Creek with ``extensive bedrock glides'' in the lower reaches of
the creek. Live Big Sandy crayfish were collected from under slab
boulders in lower Elkhorn Creek (Loughman 2015a, pp. 18-19). The USGS
topographic maps and aerial imagery (ESRI) indicate the watershed is
mostly forested; however, significant legacy and active coal mining and
other mining and quarrying occurs in the watershed. Human development,
in the form of small communities, residences, small agricultural
fields, and commercial and industrial facilities, as well as roads,
railroads, and other infrastructure, occurs almost continually in the
riparian zone along Elkhorn Creek. The watershed to the south of
Elkhorn Creek is a unit of the Jefferson National Forest; however,
Subunit 2h is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson and Wise
Counties, Virginia
This subunit includes approximately 24.6 skm (15.3 smi) of Cranes
Nest River, a major tributary to Russell Fork, and approximately 6.9
skm (4.3 smi) of Birchfield Creek, a tributary to Cranes Nest River.
The Cranes Nest River section of Subunit 2i extends from the confluence
of Cranes Nest River and Birchfield Creek downstream to the confluence
of Cranes Nest River and Lick Branch. Recent surveys of the Cranes Nest
River indicated abundant unembedded slab boulders, boulder clusters,
isolated boulders, and coarse woody debris, and live Big Sandy crayfish
have been collected at multiple sites (Thoma 2009b, p. 10; VDOT 2014b,
entire; VDOT 2015, entire; Loughman 2015a, pp. 21-22). The riparian
zone of this section is largely intact; however, human development, in
the form of residences, small communities, small agricultural fields,
roads, railroads, and other infrastructure, occurs along some segments
of Cranes Nest River.
The Birchfield Creek section of this subunit extends from the
confluence of Birchfield Creek and Dotson Creek downstream to the
confluence of Birchfield Creek and Cranes Nest River. Recent surveys
resulted in observations of live Big Sandy crayfish from a site in the
lower portion of Birchfield Creek. Human development, in the form of
residences, roads, and other infrastructure, occurs in the riparian
zone along Birchfield Creek.
The USGS topographic maps and aerial imagery (ESRI) indicate the
Cranes Nest River watershed is mostly forested; however, significant
legacy and active coal mining is evident throughout the watershed.
Natural gas development is ongoing on some of the ridges adjacent to
the Cranes Nest River. Approximately 10.3 skm (6.4 smi) of Subunit 2i
is within the John W. Flannagan Recreation Area. The remainder of the
subunit is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. Since 1964, this subunit has been physically isolated
from the Russell Fork by the John W. Flannagan Dam and Reservoir. The
Big Sandy crayfish population in Subunit 2i appears to be relatively
robust and contributes to the redundancy of the species.
Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia
Subunit 2j includes approximately 28.5 skm (17.7 smi) of the Pound
River, a major tributary to Russell Fork that has been physically
isolated from that river since 1964 by the John W. Flannagan Dam and
Reservoir. This subunit extends from the confluence of Pound River and
Bad Creek downstream to the confluence of Pound River and Jerry Branch.
Recent surveys indicate abundant unembedded slab boulders, boulders,
and boulder clusters in the riffle and run sections, and live Big Sandy
crayfish have been collected from multiple locations (Thoma 2009b,
entire; VHB, Inc. 2011, entire; Loughman 2015a, p. 21). The USGS
topographic maps and aerial imagery (ESRI) indicate the Pound River
watershed is mostly forested; however, significant legacy and recent
coal mining is evident, especially to the south of the river. Aerial
imagery also indicates recent or ongoing logging operations at several
locations in the watershed. Much of the immediate riparian zone is
intact forest, with occasional human development in the form of small
communities, residences, small agricultural fields, commercial
development, and roads and other infrastructure adjacent to the river.
Approximately 11.4 skm (7.1 smi) of Subunit 2j is within the John W.
Flannagan Recreation Area. The remainder of the subunit is located
almost entirely on private land, except for any small amount that is
publicly owned in the form of bridge crossings or road easements. The
Big Sandy crayfish population in Subunit 2j appears to be relatively
robust and contributes to the redundancy of the species.
Unit 3: Lower Levisa Fork
Unit 3 consists of the two subunits described below. The threats
within this entire unit that may need special management consideration
include resource extraction (coal mining, timber harvesting, and oil
and gas development); road construction and maintenance (including
unpaved roads and trails); instream dredging or construction projects;
and other sources of non-point source pollution.
Subunit 3a: Levisa Fork, Pike, Floyd, and Johnson Counties, Kentucky
Subunit 3a includes approximately 33.4 skm (20.8 smi) of the
mainstem Levisa Fork in two disjunct segments. The upstream segment
includes approximately 15.9 skm (9.9 smi) of the Levisa Fork from its
confluence with the Russell Fork at Levisa Junction, Kentucky,
downstream to the confluence of Levisa Fork and Island Creek at
Pikeville, Kentucky. Surveys indicate that suitable unembedded boulder
habitat is present in the Levisa Fork, and live Big Sandy crayfish have
been recently collected both upstream of Subunit 3a in the Russell Fork
and at one location near Pikeville, Kentucky (Thoma 2010, pp. 5-6;
Loughman 2015a, pp. 5-10).

[[Page 5083]]

The downstream segment of Subunit 3a includes approximately 17.5
skm (10.9 smi) of the Levisa Fork near Auxier, Kentucky, from the
confluence of Levisa Fork and Abbott Creek downstream to the confluence
of Levisa Fork and Miller Creek. Recent surveys indicate isolated
boulder clusters in this segment, with live Big Sandy crayfish
collected from two locations (Thoma 2009b, entire; Loughman 2014, pp.
12-13).
The USGS topographic maps and aerial imagery (ESRI) indicate the
Subunit 3a watershed is mostly forested; however, legacy and ongoing
coal mining is evident in several locations. Human development, in the
form of towns, small communities, residences, small agricultural
fields, commercial and industrial development, roads, railroads, and
other infrastructure, occurs nearly continuously in the riparian zone
of these segments of the Levisa Fork. Subunit 3a is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements. The upper
segment of the subunit provides connectivity between the Russell Fork
and Shelby Creek populations (discussed below), and the lower segment
supports the most downstream population of Big Sandy crayfish in the
Levisa Fork basin. Because the natural habitat characteristics (e.g.,
size, gradient, bottom substrate) in the Levisa Fork differ from those
in the upper tributaries, this subunit increases Big Sandy crayfish
representation as well as the species' redundancy.
Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky
This subunit includes approximately 32.2 skm (20.0 smi) of Shelby
Creek, a tributary to Levisa Fork, and approximately 12.9 skm (8.0 smi)
of Long Fork, a tributary to Shelby Creek. The Shelby Creek portion of
this subunit extends from the confluence of Shelby Creek and Burk
Branch downstream to the confluence of Shelby Creek and Levisa Fork at
Shelbiana, Kentucky. The Long Fork portion of Subunit 3b extends from
the confluence of Right Fork Long Fork and Left Fork Long Fork
downstream to the confluence of Long Fork and Shelby Creek at Virgie,
Kentucky. Recent surveys of this subunit indicated an abundance of
unembedded slab boulders, boulder clusters, and anthropogenic
structures such as concrete slabs and blocks in Shelby Creek and Long
Fork, and live Big Sandy crayfish have been collected at multiple
locations within this subunit (Thoma 2010, pp. 5-6; Loughman 2015a, p.
18). The USGS topographic maps and aerial imagery (ESRI) indicate the
Shelby Creek watershed is mostly forested; however, several large
surface coal mines are evident west of the creek. The Long Fork
watershed is also mostly forested; however, legacy and active coal
mining is evident in the upper portion of this watershed. Human
development, in the form of towns, small communities, residences, small
agricultural fields, commercial and industrial development, roads,
railroads, and other infrastructure, occurs nearly continuously in the
riparian zone of Shelby Creek. In the riparian zone of Long Fork,
residences, small agricultural fields, roads, and other infrastructure
occur nearly continuously. Subunit 3b is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. This subunit maintains the
most robust population of Big Sandy crayfish in the lower Levisa Fork
(as indicated by recent survey capture rates) and increases the
representation and redundancy of the species.
Unit 4: Tug Fork
Unit 4 consists of the seven subunits described below. The threats
within this entire unit that may need special management consideration
include resource extraction (coal mining, timber harvesting, and oil
and gas development); road construction and maintenance (including
unpaved roads and trails); instream dredging or construction projects;
and other sources of non-point source pollution.
Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West
Virginia; Buchanan County, Virginia; and Pike County, Kentucky
Subunit 4a includes approximately 117.8 skm (73.2 smi) of the Tug
Fork mainstem in two disjunct segments. The upstream segment includes
approximately 106.1 skm (65.9 smi) of the Tug Fork from the confluence
of Tug Fork and Elkhorn Creek at Welch, West Virginia, downstream to
the confluence of Tug Fork and Blackberry Creek in Pike County,
Kentucky. Surveys indicate that suitable unembedded boulder habitat is
sparse and discontinuous in this segment of the Tug Fork; however, live
Big Sandy crayfish have been collected at four locations within this
subunit (Loughman 2015a, p. 16). The downstream segment includes
approximately 11.7 skm (7.3 smi) of the Tug Fork near Crum, West
Virginia, from the confluence of Tug Fork and Bull Creek downstream to
the confluence of Tug Fork and Little Elk Creek.
The USGS topographic maps and aerial imagery (ESRI) indicate the
Subunit 4a watershed is mostly forested; however, there is evidence of
legacy and ongoing coal mining throughout the subunit. The riparian
zone in the upper segment of Subunit 4a is relatively intact, with
human development consisting primarily of road and railroad corridors.
In the lower segment of the subunit, towns, small communities,
residences, small agricultural fields, commercial and industrial
development, roads, railroads, and other infrastructure become
prevalent. Subunit 4a is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. Because of the diversity of natural
habitat characteristics (e.g., size, gradient, bottom substrate) in
this subunit, it contributes to Big Sandy crayfish representation and
redundancy. This subunit provides habitat for the Big Sandy crayfish,
as well as providing potential connectivity between the Dry Fork,
Panther Creek, Knox Creek, Peter Creek, Blackberry Creek, and Pigeon
Creek populations (discussed below).
Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West Virginia
This subunit includes approximately 45.2 skm (28.1 smi) of Dry
Fork, a large tributary to the Tug Fork, and approximately 4.6 skm (2.9
smi) of Bradshaw Creek, a tributary to Dry Fork. The Dry Fork portion
of Subunit 4b extends from the confluence of Dry Fork and Jacobs Fork
downstream to the confluence of Dry Fork and Tug Fork at Iaeger, West
Virginia. The Bradshaw Creek portion extends from the confluence of
Bradshaw Creek and Hite Fork at Jolo, West Virginia, downstream to the
confluence of Bradshaw Creek and Dry Fork at Bradshaw, West Virginia.
Recent surveys indicate abundant unembedded slab boulders, boulders,
boulder clusters, and large cobbles, with live Big Sandy crayfish
collected at numerous locations within this subunit (Loughman 2013, pp.
7-8; Loughman 2014, pp. 10-11; Loughman 2015a, pp. 14-15). The USGS
topographic maps and aerial imagery (ESRI) indicate the Subunit 4b
watershed is mostly forested; however, legacy coal mining is evident
throughout, and natural gas development is apparent in the upper
portions of the watershed. The riparian zone in the upper portion of
Dry Fork is relatively intact, with human development consisting
primarily of

[[Page 5084]]

road and railroad corridors. In the middle and lower portions of Dry
Fork, small communities, residences, small agricultural fields,
commercial and industrial development, roads, railroads, and other
infrastructure become prevalent. The Bradshaw Creek riparian zone is
dominated by residences, small agricultural fields, roads, and other
infrastructure. The middle portion of Dry Fork passes through the
Berwind Lake State Wildlife Management Area; otherwise, Subunit 4b is
located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings or road
easements. This subunit appears to maintain a relatively robust
population of the Big Sandy crayfish and likely serves as a source
population for areas downstream in the Tug Fork basin. This subunit
contributes to the redundancy of the species.
Subunit 4c: Panther Creek, McDowell County, West Virginia
This subunit includes approximately 10.7 skm (6.6 smi) of Panther
Creek, a tributary to Tug Fork. Subunit 4c extends from the confluence
of Panther Creek and George Branch downstream to the confluence of
Panther Creek and Tug Fork at Panther, West Virginia. Big Sandy
crayfish have been collected at one site in the lower portion of this
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate
the majority of the Panther Creek watershed is intact forest with
evidence of only limited legacy coal mining. The riparian zone of this
narrow valley is largely intact, containing a road and occasional
residences (mostly in the lower portion of the subunit). Approximately
6.1 skm (3.8 smi) of Subunit 4c is located within the Panther State
Forest, and the remainder is located on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. This subunit contributes to the redundancy of the
species.
Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike County,
Kentucky
Subunit 4d includes approximately 16.6 skm (10.3 smi) of Knox
Creek, a tributary to Tug Fork. This subunit extends from the
confluence of Knox Creek and Cedar Branch downstream to the confluence
of Knox Creek and Tug Fork in Pike County, Kentucky. Recent surveys
indicated abundant unembedded slab boulders, boulders, and boulder
clusters, with live Big Sandy crayfish collected at four sites in the
Kentucky portion of the creek (Thoma 2010, p. 5; Loughman 2015a, p.
12). The USGS topographic maps and aerial imagery (ESRI) indicate the
Knox Creek watershed is mostly forested, with evidence of significant
legacy, recent, and ongoing coal mining in the watershed. In the upper
portion of this subunit, human development in the form of small
communities, residences, roads, railroads, and other infrastructure is
common. In the middle and lower sections, the riparian zone is
relatively intact, except for scattered residences and a road and
railroad line. Subunit 4d is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements. This subunit contributes to the
redundancy of the species.
Subunit 4e: Peter Creek, Pike County, Kentucky
Subunit 4e includes approximately 10.1 skm (6.3 smi) of Peter
Creek, a tributary to Tug Fork. This subunit extends from the
confluence of Left Fork Peter Creek and Right Fork Peter Creek at
Phelps, Kentucky, downstream to the confluence of Peter Creek and Tug
Fork at Freeburn, Kentucky. Recent surveys indicate moderate
sedimentation issues in Peter Creek, but some unembedded bottom
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy
crayfish have been collected at two sites in the lower portion of this
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate
the Peter Creek watershed is mostly forested, with evidence of
significant legacy, recent, and ongoing coal mining throughout the
watershed. The riparian zone in Subunit 4e is dominated by human
development in the form of small communities, residences, roads,
railroads, and other infrastructure. This subunit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings or road easements. Subunit 4e
contributes to the redundancy of the species.
Subunit 4f: Blackberry Creek, Pike County, Kentucky
Subunit 4f includes approximately 9.1 skm (5.7 smi) of Blackberry
Creek, a tributary to Tug Fork. This subunit extends from the
confluence of Blackberry Creek and Bluespring Branch downstream to the
confluence of Blackberry Creek and Tug Fork. Recent surveys indicate
moderate sedimentation in Blackberry Creek, but some unembedded bottom
substrates continue to be present (Loughman 2015a, p. 12). Big Sandy
crayfish have been collected at two sites in the lower portion of this
subunit. The USGS topographic maps and aerial imagery (ESRI) indicate
the Blackberry Creek watershed is mostly forested, with evidence of
significant legacy, recent, and ongoing coal mining throughout the
watershed. The narrow riparian zone in Subunit 4f is dominated by human
development in the form of small communities, residences, roads, and
other infrastructure. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements. Subunit 4f contributes to
the redundancy of the species.
Subunit 4g: Pigeon Creek and Laurel Creek, Mingo County, West Virginia
Subunit 4g includes approximately 14.0 skm (8.7 smi) of Pigeon
Creek, a tributary to Tug Fork, and approximately 11.1 skm (6.9 smi) of
Laurel Fork, a tributary to Pigeon Creek. The Pigeon Creek portion of
this subunit extends from the confluence of Pigeon Creek and Trace Fork
downstream to the confluence of Pigeon Creek and Tug Fork. The Laurel
Creek portion extends from the confluence of Laurel Fork and Lick
Branch 0.6 skm (0.4 smi) downstream of the Laurel Lake dam to the
confluence of Laurel Fork and Pigeon Creek at Lenore, West Virginia.
Recent surveys indicate the bottom substrates in Pigeon Creek
consist of fine sediments, sand, and occasional boulders, with Big
Sandy crayfish collected at a single site (Loughman 2015a, p. 11).
Laurel Fork maintains a bottom substrate of sand, gravel, cobble, and
occasional slab boulders, with Big Sandy crayfish collected at two
sites (Loughman 2015a, pp. 10-11). The USGS topographic maps and aerial
imagery (ESRI) indicate the Pigeon Creek watershed is mostly forested,
with evidence of significant legacy, recent, and ongoing coal mining
and valley fills in the upper portion of the watershed. The Pigeon
Creek riparian zone is dominated by human development in the form of
small communities, residences, roads, railroads, and other
infrastructure. The majority of the Laurel Creek watershed is within
the Laurel Creek State Wildlife Management Area and is mostly intact
forest; however, the narrow riparian zone is dominated by human
development in the form of residences, roads, and other infrastructure.
Subunit 4g is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements. With the exception of the Big Sandy crayfish occurrence
in the Tug Fork mainstem near Crum, West Virginia, Subunit 4g supports
the most

[[Page 5085]]

downstream Big Sandy crayfish population in the Tug Fork watershed.
Therefore, this subunit contributes to the representation and
redundancy of the species.

Guyandotte River Crayfish

Unit 1: Upper Guyandotte
We propose to designate a single critical habitat unit (Unit 1),
consisting of five subunits, for the Guyandotte River crayfish. The
threats within this entire unit that may need special management
consideration include resource extraction (coal mining, timber
harvesting, and oil and gas development); road construction and
maintenance (including unpaved roads and trails); instream dredging or
construction projects; and other sources of non-point source pollution.
In addition, subunits 1a and 1e may need special management
consideration from the threat of ORV use. The subunits are described
below.
Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia
This subunit includes approximately 28.6 skm (17.8 smi) of Pinnacle
Creek, a tributary to the Guyandotte River. Subunit 1a extends from the
confluence of Pinnacle Creek and Beartown Fork downstream to the
confluence of Pinnacle Creek and the Guyandotte River at Pineville,
West Virginia. The USGS topographic maps and aerial imagery (ESRI)
indicate the Pinnacle Creek watershed is mostly forested; however,
legacy, recent, and ongoing coal mining is evident in the watershed.
The riparian zone in this subunit is mostly intact, with human
development consisting of unimproved roads or trails. In the lower
portion of the subunit, some commercial and coal-related facilities are
adjacent to the creek. This subunit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements.
Recent surveys of Pinnacle Creek confirmed the presence of the
Guyandotte River crayfish at five sites in the upper portion of the
creek, with the bottom substrate being characterized as gravel, with
unembedded cobbles, small boulders, and isolated slab boulders.
Substrate embeddedness was reported to increase markedly in downstream
reaches (Loughman 2015b, p. 11). As one of only two known Guyandotte
River crayfish populations, this subunit provides critical
representation and redundancy for the species.
Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West Virginia
Subunit 1b includes approximately 38.0 skm (23.6 smi) of Clear Fork
and its primary tributary Laurel Fork. This subunit extends from the
confluence of Laurel Creek and Acord Branch downstream to the
confluence of Clear Fork and the Guyandotte River. The USGS topographic
maps and aerial imagery (ESRI) indicate the Subunit 1b watershed is
mostly forested; however, coal mining activity occurs throughout the
subunit. Human development is prevalent in the riparian zone in this
subunit and consists of communities, residences, commercial facilities,
agricultural fields, roads, railroads, and other infrastructure.
Approximately 6.2 skm (3.9 smi) of Subunit 1b is within the R.D. Bailey
Lake State Wildlife Management Area, and the remainder is located
almost entirely on private land, except for any small amount that is
publicly owned in the form of bridge crossings or road easements.
Surveys confirmed the Guyandotte River crayfish at six sites within
this subunit, with the stream bottom substrate generally characterized
as sand with abundant unembedded slab boulders, boulders, or boulder
clusters (Loughman 2015b, pp. 9-10). Of the two remaining Guyandotte
River crayfish populations, Subunit 1b contains the most robust
population and provides critical representation and redundancy for the
species.
Subunit 1c: Guyandotte River, Wyoming County, West Virginia
Because we have determined occupied areas are not adequate for the
conservation of the Guyandotte River crayfish, we have evaluated
whether any unoccupied areas are essential for the conservation of the
species and identified this area as essential for the conservation of
the species. Subunit 1c includes approximately 35.8 skm (22.2 smi) of
the Guyandotte River from its confluence with Pinnacle Creek at
Pineville, West Virginia, downstream to its confluence with Clear Fork.
The USGS topographic maps and aerial imagery (ESRI) indicate the
Subunit 1c watershed is mostly forested; however, some legacy and
ongoing coal mining is evident along with natural gas development on
adjacent ridges. In the lower portion of the subunit, the riparian zone
is largely intact, with the exception of road and railroad rights-of-
way. In the middle and upper portions of this subunit, human
development in the riparian zone increases and consists of communities,
residences, commercial facilities, agricultural fields, roads,
railroads, and other infrastructure. Approximately 15.0 skm (9.3 smi)
of Subunit 1c is located within the R.D. Bailey Lake State Wildlife
Management Area, and the remainder is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings or road easements.
Although it is considered unoccupied, this subunit contains at
least two of the physical or biological features (PBFs) essential to
the conservation of the Guyandotte River crayfish, and we are
reasonably certain that it will contribute to the conservation of the
species. This subunit maintains ``optimal'' Guyandotte River crayfish
habitat, including abundant unembedded slab boulders, boulders, boulder
clusters, and cobble (PBF 1) (Loughman 2015b, pp. 22-24). Along with
providing potential habitat for the Guyandotte River crayfish and
thereby increasing its redundancy, this subunit provides connectivity
(PBF 6) between the extant Pinnacle Creek and Clear Fork populations
and provides connectivity between these two populations and the
proposed unoccupied critical habitat subunit at Indian Creek (Subunit
1d, described below).
Subunit 1d: Indian Creek, Wyoming County, West Virginia
Because we have determined occupied areas are not adequate for the
conservation of the Guyandotte River crayfish, we have evaluated
whether any unoccupied areas are essential for the conservation of the
species and identified this area as essential for the conservation of
the species. Subunit 1d includes approximately 4.2 skm (2.6 smi) of
Indian Creek, a tributary to the Guyandotte River. This subunit extends
from the confluence of Indian Creek and Brier Creek at Fanrock, West
Virginia, downstream to the confluence of Indian Creek and the
Guyandotte River. The USGS topographic maps and aerial imagery (ESRI)
indicate the Subunit 1d watershed is mostly intact forest, with
evidence of legacy coal mining and natural gas drilling on the adjacent
slopes. Residences, roads, and other infrastructure occur in the narrow
riparian zone. Approximately 1.3 skm (0.8 smi) of Subunit 1d is located
within the R.D. Bailey Lake State Wildlife Management Area, and the
remainder is located almost entirely on private land, except for any
small amount that is publicly owned in the form of bridge crossings or
road easements.
Although it is considered unoccupied, this subunit contains at
least two of the physical or biological features essential to the
conservation of the Guyandotte

[[Page 5086]]

River crayfish, and we are reasonably certain that it will contribute
to the conservation of the species. This subunit represents the type
location for the Guyandotte River crayfish, with specimens last
collected in 1947. The best available survey data (Loughman 2015b, p.
14) indicate this subunit maintains unembedded slab boulders and
boulders in the faster moving stream sections, with some sedimentation
observed in slow or slack water sections (PBF 1). This subunit is
located approximately midway between the extant Pinnacle Creek and
Clear Fork populations and, if recolonized, would increase the
redundancy of the Guyandotte River crayfish and contribute to
population connectedness within the species' range (PBF 6).
Subunit 1e: Huff Creek, Wyoming and Logan Counties, West Virginia
Because we have determined occupied areas are not adequate for the
conservation of the Guyandotte River crayfish, we have evaluated
whether any unoccupied areas are essential for the conservation of the
species and identified this area as essential for the conservation of
the species. Subunit 1e includes approximately 28.0 skm (17.4 smi) of
Huff Creek, a tributary of the Guyandotte River. This subunit extends
from the confluence of Huff Creek and Straight Fork downstream to the
confluence of Huff Creek and the Guyandotte River at Huff, West
Virginia. The USGS topographic maps and aerial imagery (ESRI) indicate
the Subunit 1e watershed is mostly intact forest, with evidence of
legacy and ongoing coal mining and legacy natural gas drilling on the
adjacent slopes. Human development, in the form of residences, roads,
and other infrastructure, occurs in the narrow riparian zone throughout
this subunit. Subunit 1e is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings or road easements.
Although it is considered unoccupied, this subunit contains at
least one of the physical or biological features essential to the
conservation of the Guyandotte River crayfish, and we are reasonably
certain that it will contribute to the conservation of the species. The
best available survey data (Loughman 2015b, pp. 14-15) indicate this
subunit maintains unembedded slab boulders and boulder clusters with
only minimal sedimentation (PBF 1). Guyandotte River crayfish were last
collected from this subunit in 1989. While the R.D. Bailey Dam,
constructed in 1980, prevents connectivity between this subunit and the
extant Guyandotte River crayfish populations upstream, successful
reintroduction of the species to this subunit would contribute to the
species' redundancy.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions. These requirements apply
when the Federal agency has retained discretionary involvement or
control over the action (or the agency's discretionary involvement or
control is authorized by law), and, subsequent to the previous
consultation, we have listed a new species or designated critical
habitat that may be affected by the Federal action, or the action has
been modified in a manner that affects the species or critical habitat
in a way not considered in the previous consultation. In such
situations, Federal agencies sometimes may need to request reinitiation
of consultation with us, but the regulations also specify some
exceptions to the requirement to reinitiate consultation on specific
land management plans after subsequently listing a new species or
designating new critical habitat. See the regulations for a description
of those exceptions.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether implementation of the proposed Federal

[[Page 5087]]

action directly or indirectly alters the designated critical habitat in
a way that appreciably diminishes the value of critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical and biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive erosion and sedimentation from coal mining or
abandoned mine lands, oil or natural gas development, timber harvests,
unpaved forest roads, road construction, channel alteration, off-road
vehicle use, and other land-disturbing activities in the watershed and
floodplain. Sedimentation from these activities could lead to stream
bottom embeddedness that eliminates or reduces the sheltering habitat
necessary for the conservation of these crayfish species.
(2) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, dredging, impoundment, road and bridge construction,
pipeline construction, and destruction of riparian vegetation. These
activities may cause changes in water flows or channel stability and
lead to increased sedimentation and stream bottom embeddedness that
eliminates or reduces the sheltering habitat necessary for the
conservation of these crayfish species.
(3) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to, the
release of chemicals, fill, biological pollutants, or heated effluents
into the surface water or connected groundwater at a point source or by
dispersed release (non-point source). These activities could alter
water conditions to levels that are beyond the tolerances of the Big
Sandy or Guyandotte River crayfish and result in direct or cumulative
adverse effects to individual crayfish.

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense (DoD) lands with a completed INRMP within the
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
which includes the existing regulatory and socioeconomic burden imposed
on landowners, managers, or other resource users potentially affected
by the designation of critical habitat (e.g., under the Federal listing
as well as other Federal, State, and local regulations). The baseline,
therefore, represents the costs of all efforts attributable to the
listing of the species under the Act (i.e., conservation of the species
and its habitat incurred regardless of whether critical habitat is
designated). The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts would not be expected without the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat,
above and beyond the baseline costs. These are the costs we use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct a discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Big Sandy and Guyandotte River crayfishes
(Industrial Economics, Incorporated (IEc) 2019, entire). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus on the key factors that are likely to result
in incremental economic impacts. The purpose of the screening analysis
is to filter out the geographic areas in which the critical habitat
designation is unlikely to result

[[Page 5088]]

in probable incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes probable economic impacts where land and
water use may be subject to conservation plans, land management plans,
best management practices, or regulations that protect the habitat area
as a result of the Federal listing status of the species. The screening
analysis filters out particular areas of critical habitat that are
already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. Ultimately, the screening analysis
allows us to focus on evaluating the specific areas or sectors that may
incur probable incremental economic impacts as a result of the
designation. The screening analysis also assesses whether units/
subunits are unoccupied by the species and may require additional
management or conservation efforts as a result of the critical habitat
designation for the species which may incur incremental economic
impacts. This screening analysis combined with the information
contained in our IEM are what we consider our draft economic analysis
of the proposed critical habitat designation for the Big Sandy and
Guyandotte River crayfishes and is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities. As
part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Big Sandy and Guyandotte River
crayfishes, first we identified, in the IEM dated August 14, 2019
(Service 2019, entire), probable incremental economic impacts
associated with the following categories of activities: (1) Watershed
and stream restoration activities; (2) construction of recreation
improvements and management of recreation activities; (3) energy
extraction (coal, oil, and gas) and maintenance/management of
facilities (e.g., abandoned mine lands, active mines, pipelines); (4)
road and bridge maintenance; (5) pesticide use; (6) timber harvest; (7)
agriculture; and (8) instream emergency response activities. We
considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the Big Sandy and
Guyandotte River crayfishes are present, Federal agencies already are
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If we finalize this proposed critical habitat designation,
consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Big
Sandy or Guyandotte River crayfishes' critical habitat. Because all of
the units/subunits we are proposing to designate as critical habitat
for the Big Sandy crayfish are occupied, we do not expect that the
critical habitat designation will result in any additional
consultations. The conservation recommendations provided to address
impacts to the occupied critical habitat will be the same as those
recommended to address impacts to the species because the habitat
tolerances of the Big Sandy crayfish are inextricably linked to the
health, growth, and reproduction of the crayfish, which are present
year-round in their occupied streams. Furthermore, because the proposed
critical habitat and the Big Sandy crayfish's known range are
identical, the results of consultation under adverse modification are
not likely to differ from the results of consultation under jeopardy.
In the event of an adverse modification determination, we expect that
reasonable and prudent alternatives to avoid jeopardy to the species
would also avoid adverse modification of the critical habitat. The only
incremental impact of critical habitat designation that we anticipate
is the small administrative effort required during section 7
consultation to document effects on the physical and biological
features of the critical habitat and whether the action appreciably
diminishes the value of critical habitat as a whole for the
conservation of the listed species.
The above conclusion is also accurate for the occupied Guyandotte
River crayfish subunits (1a and 1b). For the unoccupied Guyandotte
River crayfish subunits (1c, 1d, and 1e), we anticipate project
modifications may result in the future from consultations on one
planned surface mining project as well as one existing surface mining
project. Examples of project modifications may include, but are not
limited to, sediment monitoring, chemical testing, macroinvertebrate
monitoring, installing box culverts at all stream crossings,
collocating valley fills or constructing regarded backstacks, and
maintaining a spill response plan (IEc 2019, p. 15). Informed by
discussions with a mining company operating in Guyandotte River
crayfish occupied habitat, the cost estimates associated with such
project modifications are projected to be relatively minor, ranging
from $30,000 to $60,000 in the year of implementation.
The proposed critical habitat designation for the Big Sandy
crayfish totals approximately 582 skm (362 smi), all of which is
currently occupied by the species. The proposed critical habitat
designation for the Guyandotte River crayfish totals approximately 135
skm (84 smi), of which approximately 49 percent is currently occupied
by the species.
As stated in the DEA (IEc 2019, p. 1), critical habitat designation
for the Big Sandy and Guyandotte River crayfish would be unlikely to
generate costs exceeding $100 million in a single year, and therefore
would not be significant. The direct section 7 costs would most likely
be limited to additional administrative effort to consider adverse
modification, as well as the project modifications discussed above, in
unoccupied habitat for the Guyandotte River crayfish. All of the
proposed critical habitat units/subunits for the Big Sandy crayfish and
two subunits of critical habitat for the Guyandotte River crayfish are
occupied year-round by these species. Within occupied habitat,
regardless of whether critical habitat is designated, all projects with
a Federal nexus are already subject to section 7 requirements. The
administrative time required to address critical habitat in these
consultations is minor. The results of consultation for adverse
modification are not likely to differ from the results of consultation
for jeopardy. Three subunits of critical habitat for the

[[Page 5089]]

Guyandotte River crayfish are currently unoccupied by the species.
Section 7 consultations for all projects with a Federal nexus in this
unoccupied habitat would be fully attributable to the critical habitat
designation. We anticipate incremental project modifications resulting
from these consultations, including for existing and planned surface
mines.
Based on the rate of historical consultations in occupied units/
subunits, these two species are likely to generate a total of
approximately 285 consultations and technical assistances in a given
year. The total additional administrative cost of addressing adverse
modification in these new and existing consultations is not expected to
exceed $860,000 to $920,000, depending on the range of cost estimates
for unoccupied critical habitat (see below), in a given year. This
value likely overestimates the cost because technical assistance
consultations, which cost substantially less, cannot be separated from
informal consultations in the consultation information provided to the
economists. The cost of project modifications resulting from currently
identified existing and future activities in unoccupied habitat for the
Guyandotte River crayfish range from $30,000 to $60,000 in a given
year.
Further, the designation of critical habitat is not expected to
trigger additional requirements under State or local regulations.
Additionally, because the proposed critical habitat is located in
stretches of river, rather than on land, impacts on property values
resulting from the perception of additional regulation are unlikely.
Project modifications in unoccupied habitat for the Guyandotte River
crayfish have the potential to increase conservation in these areas,
resulting in an incremental benefit. Data limitations preclude IEc's
ability to monetize these benefits; however, these benefits are
unlikely to exceed $100 million in a given year.
The proposed units with the highest potential costs resulting from
the designation of critical habitat are Unit 2 for the Big Sandy
crayfish and the unoccupied subunits of Unit 1 for the Guyandotte River
crayfish. Proposed Unit 2 for the Big Sandy crayfish (Russell Fork,
spanning both Kentucky and Virginia) contains the most stream miles
with adjacent Federal land ownership and, therefore, a higher
probability of intersecting with projects or activities with a Federal
nexus that require consultation. Because proposed Unit 1 for the
Guyandotte River crayfish (in West Virginia) includes unoccupied stream
miles, requests for project modifications would be likely for existing
and planned surface mines.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of this proposed rule and our
required determinations. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
public comment period. In particular, we may exclude an area from
critical habitat if we determine that the benefits of excluding the
area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
During the development of a final designation, we will consider any
additional economic impact information we receive during the public
comment period (see DATES, above), and areas may be excluded from the
final critical habitat designation under section 4(b)(2) of the Act and
our implementing regulations at 50 CFR 424.19.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i) of the Act, national-
security or homeland-security concerns are not a factor in the process
of determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2)
of the Act, the Service must consider impacts on national security,
including homeland security, on lands or areas not covered by section
4(a)(3)(B)(i) of the Act. Accordingly, we will always consider for
exclusion from the designation areas for which DoD, Department of
Homeland Security (DHS), or another Federal agency has requested
exclusion based on an assertion of national-security or homeland-
security concerns.
We cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide a reasonably specific justification of an incremental
impact on national security that would result from the designation of
that specific area as critical habitat. That justification could
include demonstration of probable impacts, such as impacts to ongoing
border-security patrols and surveillance activities, or a delay in
training or facility construction, as a result of compliance with
section 7(a)(2) of the Act. If the agency requesting the exclusion does
not provide us with a reasonably specific justification, we will
contact the agency to recommend that it provide a specific
justification or clarification of its concerns relative to the probable
incremental impact that could result from the designation. If the
agency provides a reasonably specific justification, we will defer to
the expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the Big Sandy
and the Guyandotte River crayfishes are not owned or managed by DoD or
DHS, and, therefore, we anticipate no impact on national security.
Consequently, the Secretary is not intending to exercise his discretion
to exclude any areas from the final designation based on impacts on
national security unless we receive new information on such impacts
during the public comment period.

Consideration of Other Relevant Impacts

We have not considered any areas for exclusion from critical
habitat. As explained above, there are no DoD or national security
impacts, and as described below, there are no Tribal trust impacts
associated with the proposed designation. However, the final decision
on whether to exclude any areas will be based on the best scientific
data available at the time of the final designation, including
information obtained during the comment period and information about
the economic impact of designation. Accordingly, we have prepared a
draft economic analysis (DEA) concerning the proposed critical habitat
designation, which is available for review and comment (see ADDRESSES,
above).

Exclusions

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and

[[Page 5090]]

impacts on national security. We consider a number of factors including
whether there are permitted conservation plans covering the species in
the area, such as habitat conservation plans (HCPs), safe harbor
agreements, or candidate conservation agreements with assurances, or
whether there are non-permitted conservation agreements and
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at the existence of tribal
conservation plans and partnerships and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the Big Sandy or
Guyandotte River crayfishes, and the proposed designation does not
include any tribal lands or trust resources. We anticipate no impact on
tribal lands, partnerships, or HCPs from this proposed critical habitat
designation.
During the development of a final designation, we will consider any
information currently available or received during the public comment
period regarding the economic, national security, or other relevant
impacts of the proposed designation and will determine whether any
specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19.

Required Determinations

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and, therefore, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7, only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies would be directly regulated by this designation. There
is no requirement under the RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if adopted as
proposed, the critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if adopted, the proposed
critical habitat designation

[[Page 5091]]

would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required.

Executive Order 13771

This proposed rule is not an E.O. 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017)
regulatory action because this rule is not significant under E.O.
12866.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. Coal mining, pipeline and utility crossings, and oil
and gas exploration activities regularly occur within the range of the
Big Sandy and Guyandotte River crayfishes and their proposed critical
habitat units/subunits (Service 2019, pp. 7-8). These are routine
activities that the Service consults on with the Office of Surface
Mining, the Federal Energy Regulatory Commission, and the U.S. Army
Corps of Engineers under section 7 of the Act. In our draft economic
analysis (DEA), we do not find that the designation of this proposed
critical habitat would significantly affect energy supplies,
distribution, or use. As discussed in the DEA, the costs associated
with consultations related to occupied critical habitat would be
largely administrative in nature and the costs associated with the two
mining projects in unoccupied critical habitat are estimated not to
exceed $60,000 per year (IEc 2019, pp. 1, 14-15). The full cost of the
entire proposed designation is not expected to exceed $920,000 per
year, which does not reach the significant threshold of $100 million
per year. Therefore, this action is not a significant energy action,
and no Statement of Energy Effects is required. However, we will
further evaluate this issue as we conduct our economic analysis, and
review and revise this assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. The waters we are proposing to
designate as critical habitat are owned by the States of Kentucky,
Virginia, and West Virginia. None of these government entities fits the
definition of ``small governmental jurisdiction.'' Therefore, a Small
Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Big Sandy and Guyandotte River crayfishes in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical habitat does not affect land ownership, or establish any
closures, or restrictions on use of or access to the designated areas.
Furthermore, the designation of critical habitat does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. However, Federal agencies are
prohibited from carrying out, funding, or authorizing actions that
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed and concludes that this
designation of critical habitat for the Big Sandy and Guyandotte River
crayfishes does not pose significant takings implications for lands
within or affected by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies in Kentucky, Virginia, and
West Virginia. From a federalism perspective, the designation of
critical habitat directly affects only the responsibilities of Federal
agencies. The Act imposes no other duties with respect to critical
habitat, either for

[[Page 5092]]

States and local governments, or for anyone else. As a result, the rule
would not have substantial direct effects either on the States, or on
the relationship between the national government and the States, or on
the distribution of powers and responsibilities among the various
levels of government. The designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary to the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist these local governments in
long-range planning (because these local governments no longer have to
wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We propose designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this proposed
rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on maps, and the proposed rule provides
several options for the interested public to obtain more detailed
location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands that were occupied by
the Big Sandy or Guyandotte River crayfishes at the time of listing
that contain the features essential for conservation of the species,
and no tribal lands unoccupied by the Big Sandy or Guyandotte River
crayfishes that are essential for the conservation of the species.
Therefore, we are not proposing to designate critical habitat for the
Big Sandy or Guyandotte River crayfishes on tribal lands.

References Cited

A complete list of references cited in this proposed rule is
available on the internet at http://www.regulations.gov and upon
request from the North Atlantic-Appalachian Regional Office (see FOR
FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rulemaking are the staff
members of the North Atlantic-Appalachian Regional Office, Kentucky
Ecological Services Field Office, Southwestern Virginia Field Office,
and the West Virginia 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 amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
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.

0
2. Amend Sec. 17.11(h) by revising the entries for ``Crayfish, Big
Sandy'' and ``Crayfish, Guyandotte River'' under ``CRUSTACEANS'' in the
List of Endangered and Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Crustaceans

[[Page 5093]]

* * * * * * *
Crayfish, Big Sandy............. Cambarus callainus. Wherever found.... T 81 FR 20450, 4/7/2016;
50 CFR 17.95(h).\CH\

* * * * * * *
Crayfish, Guyandotte River...... Cambarus veteranus. Wherever found.... E 81 FR 20450, 4/7/2016;
50 CFR 17.95(h).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.95(h) by adding entries for ``Big Sandy Crayfish
(Cambarus callainus)'' and ``Guyandotte River Crayfish (Cambarus
veteranus)'' in the same order that these species appear in the table
at Sec. 17.11(h) to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(h) Crustaceans.
* * * * *
Big Sandy Crayfish (Cambarus callainus)
(1) Critical habitat units are depicted for Martin, Pike, Johnson,
and Floyd Counties, Kentucky; Buchanan, Dickenson, and Wise Counties,
Virginia; and McDowell, Mingo, and Wayne Counties, West Virginia, on
the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Big Sandy crayfish consist of the
following components:
(i) Fast-flowing stream reaches with unembedded slab boulders,
cobbles, or isolated boulder clusters within an unobstructed stream
continuum (i.e.. riffle, run, pool complexes) of permanent, moderate-
to large-sized (generally third order and larger) streams and rivers
(up to the ordinary high water mark as defined at 33 CFR 329.11).
(ii) Streams and rivers with natural variations in flow and
seasonal flooding sufficient to effectively transport sediment and
prevent substrate embeddedness.
(iii) Water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH,
conductivity, dissolved oxygen) sufficient for the normal behavior,
growth, reproduction, and viability of all life stages of the species.
(iv) An adequate food base, indicated by a healthy aquatic
community structure including native benthic macroinvertebrates,
fishes, and plant matter (e.g., leaf litter, algae, detritus).
(v) Aquatic habitats protected from riparian and instream
activities that degrade the physical and biological features described
in paragraphs (2)(i) through (iv) of this entry or cause physical
(e.g., crushing) injury or death to individual Big Sandy crayfish.
(vi) An interconnected network of streams and rivers that have the
physical and biological features described in paragraphs (2)(i) through
(iv) of this entry and that allow for the movement of crayfish in
response to environmental, physiological, or behavioral drivers. The
scale of the interconnected stream network should be sufficient to
allow for gene flow within and among watersheds.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of U.S. Geological Survey digital ortho-photo
quarter-quadrangles, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) Zone 15N coordinates. ESRI's ArcGIS
10.0 software was used to determine latitude and longitude coordinates
using decimal degrees. The USA Topo ESRI online basemap service was
referenced to identify features (like roads and streams) used to
delineate the upstream and downstream extents of critical habitat
units. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
https://www.fws.gov/westvirginiafieldoffice/, at http://www.regulations.gov at Docket No. FWS-R5-ES-2019-0098, and at the North
Atlantic-Appalachian Regional Office. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Note: Index map of Units 1 and 2 follows:

[[Page 5094]]

[GRAPHIC] [TIFF OMITTED] TP28JA20.000

(6) Unit 1: Upper Levisa Fork--Dismal Creek, Buchanan County,
Virginia.
(i) General description: Unit 1 includes approximately 29.2 stream
kilometers (skm) (18.1 stream miles (smi)) of Dismal Creek from its
confluence with Laurel Fork (37.234458, -81.862347) downstream to its
confluence with Levisa Fork (37.233465, -82.043663) in Buchanan County,
Virginia.
(ii) Map of Unit 1 follows:

[[Page 5095]]

[GRAPHIC] [TIFF OMITTED] TP28JA20.001

[[Page 5096]]

(7) Unit 2: Russell Fork--Buchanan, Dickenson, and Wise Counties,
Virginia, and Pike County, Kentucky.
(i) Subunit 2a: Russell Fork, Buchanan and Dickenson Counties,
Virginia, and Pike County, Kentucky.
(A) General description: Subunit 2a consists of approximately 83.8
skm (52.1 smi) of Russell Fork from its confluence with Ball Creek at
Council, Virginia (37.077889, -82.062759), downstream to its confluence
with Levisa Fork at Levisa Junction, Kentucky (37.407259, -82.439904).
(B) Map of Subunit 2a follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.002

[[Page 5097]]

(ii) Subunit 2b: Hurricane Creek, Buchanan County, Virginia.
(A) General description: Subunit 2b consists of approximately 5.9
skm (3.7 smi) of Hurricane Creek from its confluence with Gilbert
Branch (37.106350, -82.0939999) downstream to its confluence with
Russell Fork at Davenport, Virginia (37.101311, -82.137719).
(B) Map of Subunit 2b follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.003

[[Page 5098]]

(iii) Subunit 2c: Indian Creek, Buchanan and Dickenson Counties,
Virginia.
(A) General description: Subunit 2c consists of approximately 7.4
skm (4.6 smi) of Indian Creek from its confluence with Three Forks in
Buchanan County, Virginia (37.072393, -82.134788), downstream to its
confluence with Russell Fork in Buchanan and Dickenson Counties,
Virginia (37.109915, -82.157881).
(B) Map of Subunit 2c follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.004

[[Page 5099]]

(iv) Subunit 2d: Fryingpan Creek, Dickenson County, Virginia.
(A) General description: Subunit 2d consists of approximately 4.6
skm (2.9 smi) of Fryingpan Creek from its confluence with Priest Fork
(37.068649, -82.214330) downstream to its confluence with Russell Fork
(37.163426, -82.255683).
(B) Map of Subunit 2d follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.005

[[Page 5100]]

(v) Subunit 2e: Lick Creek, Dickenson County, Virginia.
(A) General description: Subunit 2e consists of approximately 16.2
skm (10.1 smi) of Lick Creek from its confluence with Cabin Fork near
Aily, Virginia (37.89885, -82.293036), downstream to its confluence
with Russell Fork at Birchfield, Virginia (37.176104, -82.270633).
(B) Map of Subunit 2e follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.006

[[Page 5101]]

(vi) Subunit 2f: Russell Prater Creek, Buchanan and Dickenson
Counties, Virginia.
(A) General description: Subunit 2f consists of approximately 8.4
skm (5.2 smi) of Russell Prater Creek from its confluence with
Greenbrier Creek (37.211915, -82.236479) downstream to its confluence
with Russell Fork at Haysi, Virginia (37.204347, -82.291918).
(B) Map of Subunit 2f follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.007

[[Page 5102]]

(vii) Subunit 2g: McClure River and Open Fork, Dickenson County,
Virginia.
(A) General description: Subunit 2g consists of approximately 35.6
skm (22.1 smi) of the McClure River and McClure Creek from the
confluence of McClure Creek and Wakenva Branch (37.034201, -82.311081)
downstream to the confluence of McClure River and Russell Fork
(37.205175, -82.295412); and approximately 4.9 km (3.0 mi) of Open Fork
from the confluence of Middle Fork Open Fork and Coon Branch
(37.038336, -82.355402) downstream to the confluence of Open Fork and
McClure Creek at Nora, Virginia (37.069451, -82.346317).
(B) Map of Subunit 2g follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.008

[[Page 5103]]

(viii) Subunit 2h: Elkhorn Creek, Pike County, Kentucky.
(A) General description: Subunit 2h consists of approximately 8.5
skm (5.3 smi) of Elkhorn Creek from its confluence with Mountain Branch
(37.271984, -82.405623) downstream to its confluence with Russell Fork
at Elkhorn City, Kentucky (37.302386, -82.354708).
(B) Map of Subunit 2h follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.009

[[Page 5104]]

(ix) Subunit 2i: Cranes Nest River and Birchfield Creek, Dickenson
and Wise Counties, Virginia.
(A) General description: Subunit 2i consists of approximately 24.6
skm (19.0 smi) of the Cranes Nest River from its confluence with
Birchfield Creek (37.065100, -82.496553) downstream to its confluence
with Lick Branch (37.158007, -82.402839) and approximately 6.9 skm (4.3
smi) of Birchfield Creek from its confluence with Dotson Creek
(37.055320, -82.552734) downstream to its confluence with Cranes Nest
River (37.063510, -82.496553).
(B) Map of Subunit 2i follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.010

[[Page 5105]]

(x) Subunit 2j: Pound River, Dickenson and Wise Counties, Virginia.
(A) General description: Subunit 2j consists of approximately 28.5
skm (17.7 smi) of the Pound River from its confluence with Bad Creek
(37.391300, -82.605201) downstream to the confluence of the Pound River
and Jerry Branch (37.189207, -82.444613).
(B) Map of Subunit 2j follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.011

[[Page 5106]]

(8) Note: Index map of Unit 3 follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.012

[[Page 5107]]

(9) Unit 3: Lower Levisa Fork--Floyd, Johnson, and Pike Counties,
Kentucky.
(i) Subunit 3a: Levisa Fork, Floyd, Johnson, and Pike Counties,
Kentucky.
(A) General description: Subunit 3a consists of approximately 15.9
km (9.9 mi) of Levisa Fork from its confluence with Russell Fork at
Levisa Junction, Kentucky (37.407259, -82.439904), downstream to its
confluence with Island Creek at Pikeville, Kentucky (37.464506, -
82.525588); and 17.5 skm (10.9 smi) of Levisa Fork from its confluence
with Abbott Creek (37.687149, -82.783021) downstream to its confluence
with Miller Creek at Auxier, Kentucky.
(B) Map of Subunit 3a follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.013

[[Page 5108]]

(ii) Subunit 3b: Shelby Creek and Long Fork, Pike County, Kentucky.
(A) General description: Subunit 3b consists of approximately 32.2
skm (20.0 smi) of Shelby Creek from its confluence with Burk Branch
(37.299511, -82.608677) downstream to its confluence with Levisa Fork
at Shelbiana, Kentucky (37.426986, -82.497604); and approximately 12.9
skm (8.0 smi) of Long Fork from the confluence of Right Fork Long Fork
and Left Fork Long Fork (37.286508, -82.663639) downstream to the
confluence of Long Fork and Shelby Creek at Virgie, Kentucky
(37.338841, -82.585800).
(B) Map of Subunit 3b follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.014

[[Page 5109]]

(10) Note: Index map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.015

[[Page 5110]]

(11) Unit 4: Tug Fork--McDowell, Mingo, and Wayne Counties, West
Virginia; Buchanan County, Virginia; and Pike and Martin Counties,
Kentucky.
(i) Subunit 4a: Tug Fork, McDowell, Mingo, and Wayne Counties, West
Virginia; Buchanan County, Virginia; and Pike and Martin Counties,
Kentucky.
(A) General description: Subunit 4a consists of approximately 106.1
skm (65.9 smi) of the Tug Fork from its confluence with Elkhorn Creek
at Welch, West Virginia (37.430721, -81.586455), downstream to its
confluence with Blackberry Creek in Pike County, Kentucky (37.607876, -
82.162722); and 11.7 skm (7.3 smi) of the Tug Fork from its confluence
with Little Elk Creek (37.885876, -82.421245) downstream to its
confluence with Bull Creek at Crum, West Virginia (37.924275, -
82.480983).
(B) Map of Subunit 4a follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.016

[[Page 5111]]

(ii) Subunit 4b: Dry Fork and Bradshaw Creek, McDowell County, West
Virginia.
(A) General description: Subunit 4b consists of approximately 45.2
skm (28.1 smi) of Dry Fork from its confluence with Jacobs Fork
(37.280873, -81.665897) downstream to its confluence with Tug Fork at
Iaeger, West Virginia (37.462387, -81.817595); and approximately 4.6
skm (2.9 smi) of Bradshaw Creek from its confluence with Hite Fork at
Jolo, West Virginia (37.323526, -81.819835), downstream to its
confluence with Dry Fork at Bradshaw, West Virginia (37.352839, -
81.799246).
(B) Map of Subunit 4b follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.017

[[Page 5112]]

(iii) Subunit 4c: Panther Creek, McDowell County, West Virginia.
(A) General description: Subunit 4c consists of approximately 10.7
skm (6.6 smi) of Panther Creek from its confluence with George Branch
(37.428924, -81.861612) downstream to its confluence with Tug Fork at
Panther, West Virginia (37.482947, -81.898348).
(B) Map of Subunit 4c follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.018

[[Page 5113]]

(iv) Subunit 4d: Knox Creek, Buchanan County, Virginia, and Pike
County, Kentucky.
(A) General description: Subunit 4d consists of approximately 16.6
skm (10.3 smi) of Knox Creek from its confluence with Cedar Branch
(37.454923, -82.050515) downstream to its confluence with Tug Fork in
Pike County, Kentucky (37.536035, -82.059658).
(B) Map of Subunit 4d follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.019

[[Page 5114]]

(v) Subunit 4e: Peter Creek, Pike County, Kentucky.
(A) General description: Subunit 4e consists of approximately 10.1
skm (6.3 smi) of Peter Creek from the confluence of Left Fork Peter
Creek and Right Fork Peter Creek at Phelps, Kentucky (37.514158, -
82.152615), downstream to the confluence of Peter Creek and Tug Fork at
Freeburn, Kentucky (37.566644, -82.144842).
(B) Map of Subunit 4e follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.020

[[Page 5115]]

(vi) Subunit 4f: Blackberry Creek, Pike County, Kentucky.
(A) General description: Subunit 4f consists of approximately 9.1
skm (5.7 smi) of Blackberry Creek its confluence with Bluespring Branch
(37.549770, -82.188713) downstream to the confluence of Blackberry
Creek and Tug Fork (37.607876, -82.162722).
(B) Map of Subunit 4f follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.021

[[Page 5116]]

(vii) Subunit 4g: Pigeon Creek and Laurel Fork, Mingo County, West
Virginia.
(A) General description: Subunit 4g consists of approximately 14.0
skm (8.7 smi) of Pigeon Creek from its confluence with Trace Fork
(37.773483, -82.237696) downstream to its confluence with Tug Fork
(37.789979, -82.351194); and approximately 11.1 skm (6.9 smi) of Laurel
Fork from its confluence with Lick Branch (37.837657, -82.219076)
downstream to its confluence with Pigeon Creek at Lenore, West Virginia
(37.796029, -82.287111).
(B) Map of Subunit 4g follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.022

Guyandotte River Crayfish (Cambarus veteranus)
(1) Critical habitat units are depicted for Logan and Wyoming
Counties, West Virginia, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Guyandotte River crayfish consist
of the following components:
(i) Fast-flowing stream reaches with unembedded slab boulders,
cobbles, or isolated boulder clusters within an unobstructed stream
continuum (i.e., riffle, run, pool complexes) of permanent, moderate-
to large-sized (generally third order and larger) streams and rivers
(up to the ordinary high water mark as defined at 33 CFR 329.11).
(ii) Streams and rivers with natural variations in flow and
seasonal flooding sufficient to effectively transport sediment and
prevent substrate embeddedness.
(iii) Water quality characterized by seasonally moderated
temperatures and physical and chemical parameters (e.g., pH,
conductivity, dissolved oxygen) sufficient for the normal behavior,
growth, reproduction, and viability of all life stages of the species.
(iv) An adequate food base, indicated by a healthy aquatic
community structure including native benthic macroinvertebrates,
fishes, and plant matter (e.g., leaf litter, algae, detritus).
(v) Aquatic habitats protected from riparian and instream
activities that degrade the physical and biological features described
in paragraphs (2)(i) through (iv) of this entry or cause physical
(e.g., crushing) injury or death to individual Guyandotte River
crayfish.
(vi) An interconnected network of streams and rivers that have the
physical and biological features described in paragraphs (2)(i) through
(iv) of this entry and that allow for the movement of crayfish in
response to environmental, physiological, or behavioral drivers. The
scale of the interconnected stream network should be sufficient to
allow for gene flow within and among watersheds.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on a base of U.S. Geological Survey digital ortho-photo
quarter-quadrangles,

[[Page 5117]]

and critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 15N coordinates. ESRI's ArcGIS 10.0 software was
used to determine latitude and longitude coordinates using decimal
degrees. The USA Topo ESRI online basemap service was referenced to
identify features (like roads and streams) used to delineate the
upstream and downstream extents of critical habitat units. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's internet site at https://www.fws.gov/westvirginiafieldoffice/, at http://www.regulations.gov at Docket No.
FWS-R5-ES-2019-0098, and at the North Atlantic-Appalachian Regional
Office. You may obtain field office location information by contacting
one of the Service regional offices, the addresses of which are listed
at 50 CFR 2.2.
(5) Note: Index map of critical habitat for the Guyandotte River
crayfish follows:
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(6) Unit 1: Upper Guyandotte--Logan and Wyoming Counties, West
Virginia.
(i) Subunit 1a: Pinnacle Creek, Wyoming County, West Virginia.
(A) General description: Subunit 1a consists of approximately 28.6
skm (17.8 smi) of Pinnacle Creek from its confluence with Beartown Fork
(37.489547, -81.394295) downstream to its confluence with the
Guyandotte River at Pineville, West Virginia (37.574700, -81.536473).
(B) Map of Subunit 1a follows:
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[[Page 5119]]

(ii) Subunit 1b: Clear Fork and Laurel Fork, Wyoming County, West
Virginia.
(A) General description: Subunit 1b consists of approximately 38.0
skm (23.6 smi) of Clear Fork and its primary tributary Laurel Fork from
the confluence of Laurel Creek and Acord Branch (37.669908, -81.551222)
downstream to the confluence of Clear Fork and the Guyandotte River
(37.607552, -81.730974).
(B) Map of Subunit 1b follows:
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(iii) Subunit 1c: Guyandotte River, Wyoming County, West Virginia.
(A) General description: Subunit 1c consists of approximately 35.8
skm (22.2 smi) of the Guyandotte River from its confluence with
Pinnacle Creek at Pineville, West Virginia (37.574700, -81.536473),
downstream to its confluence with Clear Fork (37.607552, -81.730974).
(B) Map of Subunit 1c follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.026

[[Page 5121]]

(iv) Subunit 1d: Indian Creek, Wyoming County, West Virginia.
(A) General description: Subunit 1d consists of approximately 4.2
skm (2.6 smi) of Indian Creek from the confluence of Indian Creek and
Brier Creek at Fanrock, West Virginia (37.566268, -81.650848), to the
confluence of Indian Creek and the Guyandotte River (37.587149, -
81.664680).
(B) Map of Subunit 1d follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.027

[[Page 5122]]

(v) Subunit 1e: Huff Creek, Wyoming and Logan Counties, West
Virginia.
(A) General description: Subunit 1e consists of approximately 28.0
skm (17.4 smi) of Huff Creek from its confluence with Straight Fork
(37.748834, -81.640132) downstream to its confluence with the
Guyandotte River at Huff, West Virginia (37.730736, -81.873387).
(B) Map of Subunit 1e follows:
[GRAPHIC] [TIFF OMITTED] TP28JA20.028

* * * * *

Dated: January 15, 2020.
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-01012 Filed 1-27-20; 8:45 am]
BILLING CODE 4333-15-P