The Service is announcing a final rule that identifies Endangered Species Act protections for the Neuse River waterdog. The final 4(d) rule, published in the Federal Register on June 9, 2021; and will go into effect on July 30, 2021, which is 30 days after it publishes in the Federal Register.
The U.S. Fish and Wildlife Service (Service) under the Endangered Species Act (ESA), has broad authority to issue regulations for the conservation of threatened species. The ESA provides a specific list of prohibitions for endangered species under section 9 but does not automatically provide these same prohibitions to threatened species. Section 4(d) of the ESA allows the Service to establish prohibitions or exceptions to prohibitions for threatened species.
The intent of any 4(d) rule is to provide for the conservation of a threatened species by allowing regulatory flexibility under the ESA. A 4(d) rule allows the Service the flexibility to customize prohibitions and regulate activities to provide for the conservation of threatened species, potentially without involving all of the restrictions that apply to endangered species. The exact prohibitions and exceptions depend on the species’ biology, conservation needs, and threats being managed.
The primary goals of the 4(d) rule prohibitions are to conserve the species.
Purposeful “take” of Neuse River waterdog, to include capture, handling, or other activities.
Incidental take of a Neuse River waterdog from any activities without a permit, other than those excepted below. Activities that may affect Neuse River waterdog include: development, pollution, agricultural practices, forest conversion and management,, dams and barriers, and energy production and mining.
Importing or exporting, possession, delivering, receiving, transporting, or shipping;
Selling or offering for sale in interstate or foreign commerce.
Exceptions from prohibitions
The goals of the 4(d) rule exceptions are to minimize incidental take of Neuse River waterdog and ensure that the habitat attributes are maintained, while reducing the regulatory burden for activities that may result in a net conservation benefit. Incidental take of the Neuse River waterdog will not be considered a violation of the ESA if the take results from any of the following activities:
Species restoration efforts by State wildlife agencies, including collection of, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species, and follow-up monitoring. Activities designed to conserve the Neuse River waterdog that may result in otherwise prohibited take without additional authorization when performed by any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6© of the ESA, who is designated by his or her agency for such purposes.
Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacentareas; and inclusion of riparian wetlands. Second- to third-order, headwater streams reconstructed in this way would offer suitable habitats for the Neuse River waterdog and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species for spawning, rearing, growth, feeding, migration, and other normal behaviors. Prior to restoration action, surveys to determine presence of Neuse River waterdog must be performed, and if located, waterdogs must be relocated prior to project implementation.
Bank stabilization projects that use bioengineering methods to replace pre-existing, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Native species vegetation includes woody and herbaceous species appropriate for the region and habitat conditions. These methods will not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures.
Forestry-related activities, including silvicultural practices, forest management work, and fire control tactics, that implement state-approved BMPs. In order for this exception to apply to forestry-related activities, these BMPs must achieve all of the following:
Establish a streamside management zone alongside the margins of each occupied waterway.
Restrain visible sedimentation caused by the forestry-related activity from entering the occupied waterway.
Maintain native groundcover within the streamside management zone of the occupied waterway, and promptly re-establish groundcover if disturbed.
Limit installation of vehicle or equipment crossings of the occupied waterway to only where necessary for the forestry-related activity. Such crossings shall:
have erosion and sedimentation control measures installed to divert surface runoff away and restrain visible sediment from entering the waterway;
allow for movement of aquatic organisms within the waterway; and
have native groundcover applied and maintained through completion of the forestry-related activity.
Maintain shade over the occupied waterway like that observed prior to the forestry-related activity.
Must not use tracked or wheeled vehicles for reforestation site preparation within the streamside management zone of the occupied waterway.
Must not locate log decks, skid trails, new roads, or portable mill sites in the streamside management zone of the occupied waterway.
Must not obstruct and impede of the flow of water within the occupied waterway, caused by direct deposition of debris or soil by the forestry-related activity.
Must not discharge of any solid waste, petroleum, pesticide, fertilizer, or other chemical into the occupied waterway.
For forestry activities in North Carolina, the term Best Management Practices (BMPs) refers to effective, economical and practical treatments, methods or practices that can be implemented to help prevent pollution from getting into our water and thereby protect water quality.
North Carolina Best Management Practices Manual