[Federal Register: September 27, 2002 (Volume 67, Number 188)]
[Rules and Regulations]
[Page 61016-61040]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se02-34]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH33
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Appalachian Elktoe
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the Fish and Wildlife Service (Service), are designating
critical habitat for the Appalachian elktoe (Alasmidonta raveneliana)
under the Endangered Species Act of 1973, as amended (Act). The areas
designated as critical habitat for the Appalachian elktoe total
approximately 231.1 kilometers (144.3 miles) of various segments of
rivers in North Carolina and one river in Tennessee.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species and that may require special
management considerations or protection.
Section 7(a)(2) of the Act requires that each Federal agency shall,
in consultation with us, ensure that any action authorized, funded, or
carried out by such agency is not likely to jeopardize the continued
existence of an endangered or threatened species or result in the
destruction or adverse modification of critical habitat. Section 4 of
the Act requires us to consider economic and other impacts of
specifying any area as critical habitat.
We solicited data and comments from the public on all aspects of
the proposal, including data on economic and other impacts of the
designation.
DATES: This rule is effective on October 28, 2002.
[[Page 61017]]
ADDRESSES: Comments and materials received, as well as supporting
documentation used in preparation of this final rule, are available for
public inspection, by appointment, during normal business hours at the
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa
Street, Asheville, NC 28801.
FOR FURTHER INFORMATION CONTACT: John Fridell, Fish and Wildlife
Biologist, Asheville Field Office (see ADDRESSES) (telephone 828/258-
3939, extension 225; facsimile 828/258-5330).
SUPPLEMENTARY INFORMATION:
Background
The Appalachian elktoe (Alasmidonta raveneliana) is a freshwater
mussel that has a thin, kidney-shaped shell, reaching up to about 10
centimeters (4 inches) (J.A. Fridell, Service, pers. observation 1999).
Juveniles generally have a yellowish-brown periostracum (outer shell
surface), while the periostracum of the adults is usually dark brown to
greenish-black in color. Although rays are prominent on some shells,
particularly in the posterior portion of the shell, many individuals
have only obscure greenish rays. The shell nacre (inside shell surface)
is shiny, often white to bluish-white, changing to a salmon, pinkish,
or brownish color in the central and beak cavity portions of the shell;
some specimens may be marked with irregular brownish blotches (adapted
from Clarke 1981). Clarke (1981) provides a detailed description of the
species' shell, with illustrations; Ortmann (1921) discussed soft
parts.
Distribution, Habitat, and Life History
The Appalachian elktoe is known only from the mountain streams of
western North Carolina and eastern Tennessee. Although the complete
historical range of the Appalachian elktoe is unknown, available
information suggests that the species once lived in the majority of the
rivers and larger creeks of the upper Tennessee River system in North
Carolina, with the possible exception of the Hiwassee and Watauga River
systems (the species has not been recorded from either of these river
systems). In Tennessee, the species is known only from its present
range in the main stem of the Nolichucky River.
Currently, the Appalachian elktoe has a very fragmented, relict
distribution. The species still survives in scattered pockets of
suitable habitat in portions of the Little Tennessee River system,
Pigeon River system, and the Little River in North Carolina and the
Nolichucky River system in North Carolina and Tennessee. In the Little
Tennessee River system in North Carolina, populations survive in the
reach of the main stem of the Little Tennessee River, between the city
of Franklin and Fontana Reservoir, in Swain and Macon Counties (Service
1994, 1996; McGrath 1999; Fridell, pers. observation, 2002), and in
scattered reaches of the main stem of the Tuckasegee River in Jackson
and Swain Counties, from below the town of Cullowhee downstream to
Bryson City (M. Cantrell, Service, pers. comm. 1996; Fridell, pers.
observation 1996, 1997; McGrath 1998; T. Savidge, North Carolina
Department of Transportation (NCDOT), pers. comm. 2001). The species
was recently discovered (in 2000) in the Cheoah River, below Santeetlah
Lake, in Graham County (W. Pennington, Pennington and Associates, Inc.,
Knoxville, Tennessee, pers. comm. 2000). On August 7, 2002, biologists
with the NCDOT, U.S. Forest Service, and the Service recorded eleven
live individuals and four shells from the Cheoah River below Santeetlah
Dam, during a survey of portions of the river (Fridell, pers.
observation 2002).
In the Pigeon River system in North Carolina, a small population of
the Appalachian elktoe occurs in small, scattered sites in the West
Fork Pigeon River and in the main stem of the Pigeon River, above
Canton, in Haywood County (Fridell, pers. observation 1999; McGrath
1999). The Little River (upper French Broad River system) population of
the species, in Transylvania County, NC, is restricted to small,
scattered pockets of suitable habitat downstream of Cascade Lake
(Fridell, pers. observation 2000; C. McGrath, North Carolina Wildlife
Resources Commission (NCWRC), pers. comm. 2000).
In the Nolichucky River system, the Appalachian elktoe survives in
a few scattered areas of suitable habitat in the Toe River, Yancey and
Mitchell Counties, NC (Service 1994, 1996; McGrath 1996, 1999); Cane
River, Yancey County, NC (Service 1994, 1996; McGrath 1997); and the
main stem of the Nolichucky River, Yancey and Mitchell Counties, NC,
extending downstream to the vicinity of Erwin in Unicoi County, TN
(Service 1994, 1996; Fridell, pers. observation 1998; S. Ahlstedt, U.S.
Geological Survey, pers. comm. 2002). Two individuals have been found
recently in the North Toe River, Yancey and Mitchell Counties, NC,
below the confluence of Crabtree Creek (McGrath 1999), and 15 live
individuals, with no more than 2 to 3 at each site (Fridell, pers.
observation 2000), and one shell (S. Fraley, Tennessee Valley
Authority, Norris, TN, pers. comm. 1999) have been recorded from the
South Toe River, Yancey County, NC. The majority of the surviving
occurrences of the Appalachian elktoe appear to be small to extremely
small and restricted to scattered pockets of suitable habitat.
Historically, the species has been recorded from Tulula Creek
(Tennessee River drainage), the main stem of the French Broad River,
and the Swannanoa River (French Broad River system) (Clarke 1981), but
it has apparently been eliminated from these streams (Service 1994,
1996). There is also a historical record of the Appalachian elktoe from
the North Fork Holston River in Tennessee (S.S. Haldeman collection);
however, this record is believed to represent a mislabeled locality
(Gordon 1991). If the historical record for the species in the North
Fork Holston River was a good record, the species has apparently been
eliminated from this river as well.
The Appalachian elktoe has been reported from relatively shallow,
medium-sized creeks and rivers with cool, clean, well-oxygenated,
moderate-to fast-flowing water. The species is most often found in
riffles, runs, and shallow flowing pools with stable, relatively silt-
free, coarse sand and gravel substrate associated with cobble,
boulders, and/or bedrock (Gordon 1991; Service 1994 and 1996; J.M.
Alderman, NCWRC, pers. comm. 2000; McGrath, pers. comm. 2000; Savidge,
pers. comm. 2000; Fridell, pers. observation 1989 through 2002).
Stability of the substrate appears to be critical to the Appalachian
elktoe, and the species is seldom found in stream reaches with
accumulations of silt or shifting sand, gravel, or cobble (Fridell,
pers. observation 1989 through 2001). Individual specimens that have
been encountered in these areas are believed to have been scoured out
of upstream areas during periods of heavy rain and have not been found
on subsequent surveys (McGrath, pers. comm. 1996; Fridell, pers.
observation 1995, 1996, 1999).
Like other freshwater mussels, the Appalachian elktoe feeds by
filtering food particles from the water column. The specific food
habits of the species are unknown, but other freshwater mussels have
been documented to feed on detritus (decaying organic matter), diatoms
(various minute algae) and other algae and phytoplankton (microscopic
floating aquatic plants), and zooplankton (microscopic floating aquatic
animals). The reproductive cycle of the Appalachian elktoe is similar
to that of other native freshwater
[[Page 61018]]
mussels. Males release sperm into the water column, and the sperm are
then taken in by the females through their siphons during feeding and
respiration. The females retain the fertilized eggs in their gills
until the larvae (glochidia) fully develop. The mussel glochidia are
released into the water, and within a few days they must attach to the
appropriate species of fish, which they then parasitize for a short
time while they develop into juvenile mussels. They then detach from
their fish host and sink to the stream bottom where they continue to
develop, provided they land in a suitable substrate with the correct
water conditions.
Personnel with the Tennessee Technological University at
Cookeville, TN, identified the banded sculpin (Cottus carolinae) as a
host species for glochidia of the Appalachian elktoe (M. Gordon,
Tennessee Technological University, pers. comm. 1993). The U.S.
Environmental Protection Agency's (EPA) Science and Ecosystem Support
Division's Aquatic Lab in Athens, Georgia, also documented the mottled
sculpin (C. bairdi), a species more common within the majority of the
range of the Appalachian elktoe than the banded sculpin, as a suitable
host for the Appalachian elktoe (A. Keller, EPA, Athens, Georgia, pers.
comm. 1999). The general habitat requirements of the mottled sculpin
are very similar to those of the Appalachian elktoe and are described
by several authors (Lee et al. 1980, Etnier and Starnes 1993, Rohde et
al. 1994, Jenkins and Burkhead 1994) as riffles, runs, and flowing
portions of pools with gravel and rocky substrata in cool, clean, well-
oxygenated, moderate-to fast-gradient streams. The banded sculpin has
similar habitat requirements but is considered to be more tolerant of
warmer stream temperatures than the mottled sculpin (Lee et al. 1980,
Etnier and Starnes 1993, Rohde et al. 1994, Jenkins and Burkhead 1994).
Where the distribution of the two species overlap in streams supporting
the Appalachian elktoe, the mottled sculpin is typically the most
abundant, with the banded sculpin being generally more common in the
downstream reaches of the streams, below the Appalachian elktoe
occurrences. Of the two sculpin species, it is the mottled sculpin that
most likely/most commonly serves as the host species for the
Appalachian elktoe. Additional studies are needed to determine if any
other native fish species may also serve as hosts for the glochidia of
the Appalachian elktoe. The life span and many other aspects of the
Appalachian elktoe's life history are currently unknown.
Reasons for Decline and Threats to Surviving Populations
Available information indicates that several factors have
contributed to the decline and loss of populations of the Appalachian
elktoe and threaten the remaining populations. These factors include
pollutants in wastewater discharges (sewage treatment plants and
industrial discharges); habitat loss and alteration associated with
impoundments, channelization, and dredging operations and the run-off
of silt, fertilizers, pesticides, and other pollutants from land
disturbance activities implemented without adequate measures to control
erosion and/or storm water (Service 1994, 1996).
Mussels are known to be sensitive to numerous pollutants,
including, but not limited to, a wide variety of heavy metals, high
concentrations of nutrients, ammonia, and chlorine--pollutants commonly
found in many domestic and industrial effluents (Havlik and Marking
1987). In the early 1900s, Ortmann (1909) noted that the disappearance
of unionids (mussels) is the first and most reliable indicator of
stream pollution. Keller and Zam (1991) concluded that mussels are more
sensitive to metals than commonly tested fish and aquatic insects. The
life cycle of native mussels makes the reproductive stages especially
vulnerable to pesticides and other pollutants (Ingram 1957, Stein 1971,
Fuller 1974, Gardner et al. 1976). Effluent from sewage treatment
facilities can be a significant source of pollution that can severely
affect the diversity and abundance of aquatic mollusks. The toxicity of
chlorinated sewage effluents to aquatic life is well documented (Brungs
1976, Tsai 1975, Bellanca and Bailey 1977, EPA 1985, Goudreau et al.
1988), and mussel glochidia (larvae) rank among the most sensitive
invertebrates in their tolerance to toxicants present in sewage
effluents (Goudreau et al. 1988). Goudreau et al. (1988) found that the
recovery of mussel populations may not occur for up to 3.2 kilometers
(km) (2 miles (mi)) below the discharge points of chlorinated sewage
effluent.
Land-clearing and disturbance activities carried out without proper
sedimentation and storm-water control pose a significant threat to the
Appalachian elktoe and other freshwater mussels. Mussels are sedentary
and are not able to move long distances to more suitable areas in
response to heavy silt loads. Natural sedimentation resulting from
seasonal storm events probably does not significantly affect mussels,
but human activities often create excessively heavy silt loads that can
have severe effects on mussels and other aquatic organisms. Siltation
has been documented to adversely affect native freshwater mussels both
directly and indirectly (Ellis 1936, Marking and Bills 1979, Kat 1982,
Aldridge et al. 1987). Siltation degrades water and substrate quality,
limiting the available habitat for freshwater mussels (and their fish
hosts), thereby limiting their distribution and potential for expansion
and maintenance of their populations; irritates and clogs the gills of
filter-feeding mussels, resulting in reduced feeding and respiration;
smothers mussels if sufficient accumulation occurs; and increases the
potential exposure of the mussels to other pollutants. Ellis (1936)
found that less than 2.5 centimeters (1 inch) of sediment deposition
caused high mortality in most mussel species. Sediment accumulations
that are less than lethal to adults may adversely affect or prevent the
recruitment of juvenile mussels into the population. Also, sediment
loading in rivers and streams during periods of high discharge is
abrasive to mussel shells. Erosion of the outer shell allows acids to
reach and corrode underlying layers that are composed primarily of
calcium, which dissolves under acid conditions (Harman 1974).
The effects of impoundments on mussels are also well documented.
For the most part, lakes do not occur naturally in western North
Carolina and eastern Tennessee (most lakes in western North Carolina
and eastern Tennessee are man-made), and the Appalachian elktoe, like
the majority of our other native mussels, fish, and other aquatic
species in these areas, is adapted to stream conditions (flowing,
highly oxygenated water and coarse sand and gravel bottoms). Dams
change the habitat from flowing to still water. Water depth increases,
flow decreases, and silt accumulates on the bottom (Williams et al.
1992), altering the quality and stability of the remaining stream
reaches by affecting water flow regimes, velocities, temperature, and
chemistry. Dams that operate by releasing cold water from near the
bottom of the reservoirs lower the water temperature downstream,
changing downstream reaches from warm-or cool-water streams to cold-
water streams and affecting their suitability for many of the native
species historically inhabiting these stream reaches (Miller et al.
1984, Layzer et al. 1993). The effects of impoundments result in
changes in fish communities (fish host species may be eliminated)
(Brimm 1991), and in
[[Page 61019]]
mussel communities (species requiring clean gravel and sand substrates
are eliminated) (Bates 1962). In addition, dams result in the
fragmentation and isolation of populations of species and act as
effective barriers to the natural upstream and downstream expansion or
recruitment of mussel and fish species.
The information available demonstrates that habitat deterioration
resulting from sedimentation and pollution from numerous point and
nonpoint sources, when combined with the effects of other factors
(including habitat destruction, alteration, and fragmentation resulting
from impoundments, channelization projects, etc.), has played a
significant role in the decline of the Appalachian elktoe. We believe
this is particularly true of the extirpation of the Appalachian elktoe
from the Swannanoa and French Broad Rivers and portions of the Pigeon,
upper Little River, and upper Little Tennessee River systems. We
believe these factors also have contributed to the extirpation of the
species from parts of the upper Tuckasegee River, Cheoah River, and
Tulula Creek, though the effects of impoundments are believed to have
played an even more significant role in the loss of the species in the
upper reaches of these streams.
The most immediate threats to the remaining populations of the
Appalachian elktoe are associated with sedimentation and other
pollutants (i.e., fertilizers, pesticides, heavy metals, oil, salts,
organic wastes, etc.) from nonpoint sources. Much of the Nolichucky
River in North Carolina contains heavy loads of sediment, primarily
from past land disturbance activities within its watershed, and
suitable habitat for the Appalachian elktoe appears to be very limited
in this river system. The species has not been found in the Nolichucky
River system in substrates with accumulations of silt and shifting
sand; it is restricted to small, scattered pockets of stable,
relatively clean, and gravelly substrates. The same is true of the
other surviving populations of the species.
Previous Federal Actions
In the May 22, 1984, Animal Notice of Review published in the
Federal Register (49 FR 21675) and again in the January 6, 1989, Animal
Notice of Review (54 FR 579), we recognized the Appalachian elktoe as a
species under review for potential addition to the Federal List of
Endangered and Threatened Wildlife and Plants. In those notices, we
designated the Appalachian elktoe as a category 2 candidate for Federal
listing. We no longer maintain a list of category 2 candidate species.
At that time, category 2 was defined as including species for which we
had some information indicating that the taxa may be under threat, but
not enough information was available to determine if they warranted
Federal listing and the preparation of a proposed rule. Subsequently,
surveys of historical and potential Appalachian elktoe habitat were
conducted, revealing that the species had undergone a significant
decline throughout its historical range and that the remaining
occurrences were threatened by many of the same factors that are
believed to have resulted in this decline. Accordingly, on June 10,
1992, we reclassified the Appalachian elktoe as a category 1 candidate.
At that time, category 1 candidates were those species for which we had
adequate information on biological vulnerability and threats to support
proposals to list them as endangered or threatened species. On April
20, 1992, and again on August 21, 1992, we notified appropriate
Federal, State, and local governmental agencies that we were gathering
information on the Appalachian elktoe and that the species might be
proposed for Federal listing. We received a total of six written
comments in response to these two notices. The NCWRC (two written
comments), the North Carolina Natural Heritage Program (two written
comments), and an interested biologist expressed their support for the
species' being proposed for protection under the Act. The Natural
Resources Conservation Service stated that they did not have any
additional information on this species.
On September 3, 1993, we published a proposed rule to list the
Appalachian elktoe as an endangered species (58 FR 46940). The proposed
rule provided information on the species' biology, status, and threats
to its continued existence and included our proposed determination that
the designation of critical habitat was not prudent for the Appalachian
elktoe. We solicited comments and suggestions concerning the proposed
rule from the public, concerned governmental agencies, the scientific
community, industry, and other interested parties. We requested
comments from appropriate Federal and State agencies, county
governments, scientific organizations, and interested parties by
letters dated September 14, 1993, and January 27, 1994. We published a
legal notice, which invited general public comment, in the following
newspapers--Erwin Record, Erwin, TN, September 22, 1993; Mitchell News
Journal, Spruce Pine, NC, September 22, 1993; Yancey Common Times
Journal, Burnsville, NC, September 22, 1993; Smoky Mountain Times,
Bryson City, NC, September 23, 1993; and Franklin Press, Inc.,
Franklin, NC, September 24, 1993.
We received four comments in response to the proposed rule, one
supporting the listing and three requesting a public hearing. On
January 21, 1994, we published a notice announcing the public hearing
and the reopening of the comment period through February 21, 1994, to
ensure that all interested parties had ample time to provide
information on the proposed rule (59 FR 3326). On February 8, 1994, we
held a public hearing at the Mitchell High School in Bakersville, NC.
We received 20 verbal statements and written comments during the public
hearing; 14 of them expressed opposition to the listing of the
Appalachian elktoe, 5 expressed support for the listing, and 1
expressed an interest but offered neither support nor opposition. We
received 40 additional written comments during the reopened comment
period; 8 opposed the listing, 31 supported the listing, and 1
expressed neither opposition nor support.
Following our review of all the comments and information received
throughout the listing process, we incorporated appropriate changes and
on November 23, 1994, we published a final rule listing the Appalachian
elktoe as endangered (59 FR 60324). That decision included our
determination that the designation of critical habitat was not prudent
for the Appalachian elktoe because, after a review of all the available
information, we determined that such designation would not be
beneficial to the species.
On June 30, 1999, the Southern Appalachian Biodiversity Project and
the Foundation for Global Sustainability filed a lawsuit in the United
States District Court for the District of Columbia against the Service,
the Director of the Service, and the Secretary of the Interior
challenging the Service's ``not prudent'' critical habitat
determinations for four species in North Carolina--the Appalachian
elktoe (Alasmidonta raveneliana), Carolina heelsplitter (Lasmigona
decorata), spruce-fir moss spider (Microhexura montivaga), and rock
gnome lichen (Gymnoderma lineare). On February 29, 2000, the U.S.
Department of Justice entered into a settlement agreement with the
plaintiffs in which we agreed to reexamine our prudency determination
and, if appropriate, submit to the Federal Register, by February 1,
2001, a withdrawal of the
[[Page 61020]]
existing not prudent determination for the Appalachian elktoe, together
with a new proposed critical habitat determination. We agreed further
that if we determined that the designation of critical habitat would be
prudent for the Appalachian elktoe, we would send a final rule of this
finding to the Federal Register by November 1, 2001.
On February 8, 2001, we published a prudency determination and a
proposed designation of critical habitat for the Appalachian elktoe (66
FR 9540). This proposed rule included maps and a description of all
areas under consideration for designation as critical habitat for the
species. By letter of February 9, 2001, we also notified appropriate
Federal and State agencies, local governments, scientific
organizations, individuals knowledgeable about the species, and other
interested parties about the proposal and requested their comments. A
legal notice that announced the availability of the proposed rule and
invited public comment was published in the following newspapers--Erwin
Record, Erwin, TN; Franklin Press, Inc., Franklin, NC; Graham Star,
Robbinsville, NC; Mitchell News Journal, Spruce Pine, NC; Mountaineer,
Waynesville, NC; Smoky Mountain Times, Bryson City, NC; Transylvania
Times, Brevard, NC; and Yancey Common Times Journal, Burnsville, NC. At
the request of the Transylvania County (NC) Board of Commissioners, we
attended a Board of Commissioners public meeting on March 26, 2001, in
Brevard, NC, where we gave a presentation on the proposed designation
of critical habitat for the Appalachian elktoe and responded to
questions concerning the proposal from the commissioners and the public
in attendance.
In the proposed rule and associated notifications, all interested
parties were requested to submit factual reports or information by
April 9, 2001, that might contribute to our determination and the
development of a final rule. In response to the proposed rule, we
received 49 written comments, including two requests for public
hearings.
On August 29, 2001, we entered into an agreement (referred to as
the ``mini-global'' agreement) with the plaintiffs from the June 30,
1999, lawsuit that allowed us to reallocate funding to complete listing
decisions on 14 species, proceed with proposed listing decisions on 8
species, take action on 4 listing petitions, and extend the deadline on
8 critical habitat designations, including the final determination
concerning the designation of critical habitat for the Appalachian
elktoe. Pursuant to this agreement, our deadline for submitting the
final determination concerning the designation of critical habitat for
the Appalachian elktoe to the Federal Register was extended to July 6,
2002. However, because we were unable to spend fiscal year 2001 funding
on the required draft economic analysis of the potential effects of the
designation of critical habitat for the Appalachian elktoe and approval
for spending fiscal year 2002 appropriated funds for listing was not
received until mid-November 2001, the development of the draft economic
analysis was delayed. We then filed a motion in the District Court
pursuant to our settlement agreement, requesting an extension to
complete the final designation. On April 15, 2002, the District Court
granted us an extension until September 20, 2002, to finalize the
critical habitat designation for the Appalachian elktoe.
On May 16, 2002, we published a notice in the Federal Register (67
FR 34893) announcing the availability of a draft economic analysis for
the proposed designation of critical habitat for the Appalachian
elktoe; announcing the purpose, time, and location of public hearings
requested during the initial comment period on the proposed rule; and
announcing the reopening of the formal comment period on the proposed
rule from May 16, 2002, to July 1, 2002. We notified appropriate
agencies, governmental officials, institutions, and other interested
parties, by letters dated May 6, 2002, of the reopening of the comment
period, availability of the draft economic analysis, and the public
hearings. In addition, we published legal notices in the newspapers
listed above announcing the reopening of the comment period, the public
hearings, and the availability of the draft economic analysis and
inviting public participation and comments.
In response to the requests for public hearings, we held two
hearings, the first on June 4, 2002, in Erwin, TN, and the second on
June 6, 2002, in Bryson City, NC. Twenty-three individuals presented
oral comments at the two hearings (three of these individuals provided
comments at both hearings), and we received 28 written comments during
the reopened comment period. In addition, at the request of the Yancey
County (NC) Manager, we attended a public meeting of the Yancey County
Board of Commissioners on June 11, 2002, where we gave a presentation
about the proposed designation of critical habitat for the Appalachian
elktoe and an overview of past and potential future activities within
the general area, with Federal involvement, that have required or are
likely to require consultation under section 7 of the Act.
Summary of Comments and Recommendations
We received 26 oral comments at the two public hearings and a total
of 78 written comments during the two comment periods-49 during the
initial comment period and 29 during the reopened comment period. Of
the responses/comments received, 71 supported the designation of
critical habitat for the Appalachian elktoe, 25 expressed opposition to
the designation, and 8 expressed neither support nor opposition but
requested or provided additional information. Comments were received
from The Eastern Band of Cherokee Indians, 1 congressional
representative from Georgia, 1 Federal agency, 1 State agency, 3
elected county officials, 9 private organizations or businesses, and 62
private individuals. Several of the respondents provided comments
during the initial comment period on the proposed rule and additional
comments on the draft economic analysis and/or proposed rule during the
reopened comment period. Some respondents provided both oral comments
(during one or both of the public hearings) and written comments.
We also contacted, by phone and letters dated February 26, 2001,
four experts in the field of malacology (native freshwater mussel
biology and ecology) and requested that they serve as peer reviewers of
the proposal to designate critical habitat for the Appalachian elktoe.
However, none of the four submitted comments on the proposal.
We reviewed all comments received for substantive issues and any
new information regarding the Appalachian elktoe. Similar comments were
grouped into issues relating specifically to the proposed critical
habitat determination and the draft economic analysis with regard to
the proposed determination. These issues and our response to each are
presented below.
Issue 1: One respondent pointed out that while the proposed rule
states that the available information suggests that the Appalachian
elktoe once lived in the majority of the rivers and larger creeks of
the upper Tennessee River system in North Carolina, the species has not
been recorded in the Watauga or Hiwassee Rivers.
Response: The respondent is correct, and we have mentioned these
two river systems in this rule as possible exceptions to the historical
range of the Appalachian elktoe.
[[Page 61021]]
Issue 2: One respondent recommended that, because of the critical
role of fish hosts in the mussel's life cycle, the final rule should
include a discussion about the habitat and ecological requirements of
the mottled sculpin. The same respondent suggested that other more
motile fish species may serve as hosts for the glochidia of the
Appalachian elktoe and may have some effect on which areas should be
considered critical habitat.
Response: We agree with the respondent's first recommendation and
have included a brief discussion of the habitat requirements of the
mottled sculpin and banded sculpin in the ``Background'' section of
this rule. However, while we also agree that it is possible that other
fish species may also serve as hosts for the glochidia of the
Appalachian elktoe, additional research is needed to determine this.
The two studies that have been conducted (see the ``Background''
section above) have identified only the two sculpin species--the
mottled sculpin and the banded sculpin--as suitable hosts for the
Appalachian elktoe. The areas we are designating as critical habitat
constitute our best assessment of the areas needed for the conservation
of the Appalachian elktoe based on the best scientific information
currently available to us. These areas contain the habitat elements
essential to the life cycle needs of the Appalachian elktoe, as they
are currently known, including habitat for the species' fish hosts, as
they are known. To the extent feasible, we will continue, with the
assistance of other Federal, State, and private researchers, to conduct
research on the life cycle needs of the species. Should new information
become available indicating that other areas are essential to the
conservation of the Appalachian elktoe, we may revise the designated
critical habitat accordingly in a subsequent rule.
Issue 3: Two respondents recommended that the final rule would be
more informative if it described the specific impacts in the streams
and stream reaches where the Appalachian elktoe is believed to have
been adversely affected or has been extirpated. Another respondent
requested information about what has caused the decline in Appalachian
elktoe populations and why, if water quality has improved in the
Nolichucky River system, the Appalachian elktoe populations have
declined.
Response: We have included some additional information in the
``Background'' section of this rule (see ``Reasons for Decline and
Threats to Surviving Populations'' section) concerning the factors that
are believed to have contributed to the decline of the species
throughout its range and that threaten the surviving occurrences.
The available information demonstrates that the decline of the
Appalachian elktoe throughout its range can be attributed to several
factors, including siltation resulting from past logging, mining,
agricultural, and construction activities; the run-off and discharge of
organic and inorganic pollutants from industrial, municipal,
agricultural, and other point and nonpoint sources; habitat alterations
associated with impoundments, channelization, and dredging; and other
natural and human-related factors that adversely modify the aquatic
environment. It is true that there have been significant improvements
in both water and substrate (stream bottom) quality in portions of the
Nolichucky River system and other river systems supporting the species
as a result of the implementation of Federal and State regulations for
controlling sediment and other pollutants and an increased awareness
and/or interest in, and voluntary implementation of, conservation
measures. Many of the industries, landowners, builders, etc., in the
watersheds of these rivers are to be commended for implementing
measures for controlling the run-off of sediment and other pollutants
into the rivers and their tributaries. The status of the Appalachian
elktoe population in the Nolichucky River system appears to be in the
process of recovering as a result of these improvements, and the
species appears to be in the process of recolonizing portions of these
rivers. However, the population in the Nolichucky River system is still
very small and scattered. Despite intensive surveys by biologists with
the Service, NCWRC, NCDOT, and Tennessee Valley Authority, no more than
one to three specimens of the Appalachian elktoe have been found at
most of the sites where it presently occurs in the Toe, Cane, North
Toe, and South Toe Rivers. Also, while there have been improvements,
activities are still occurring within the Nolichucky River watershed
that continue to adversely affect the quality of portions of these
rivers, and other activities are proposed that have the potential to
adversely affect them.
Issue 4: One respondent requested more specific information on the
habitat requirements of the species and another respondent stated that
the Service lacks the fundamental scientific qualifications necessary
to determine Appalachian elktoe habitat requirements and to specify
``critical habitat'' for the species. Specifically, the latter
respondent stated that there is little or no available quantifiable
data on the species' habitat requirements, such as ``stream order,
hydrology, water depth, water velocity, substrate preferences, and
water temperature and chemistry.'' This respondent stated the Service's
determination of critical habitat appears to rely solely on
observations of general habitat conditions in streams where the
Appalachian elktoe has been found.
Response: The Act requires us to base our critical habitat
designations on the best scientific information available. While there
is still much that we do not know or understand about the habitat
requirements of the Appalachian elktoe (in particular, the species'
microhabitat requirements), the primary constituent elements, as they
are identified in the rule, are based on descriptions of the species'
habitat provided by biologists with the Service, NCWRC, NCDOT, and
Tennessee Technological University who have been involved in conducting
surveys and monitoring populations of the species; they represent the
best information on the habitat requirements of the species currently
available to us. They are not observations of the general habitat
conditions within the streams where the Appalachian elktoe occurs;
rather, they represent a description of the habitat conditions present
at the sites within these streams where the Appalachian elktoe occurs
as compared to the other sites and/or reaches of these streams where
the species is not found. While we will continue (with the assistance
of other Federal, State, and private researchers) to conduct studies of
the species and its habitat requirements, we do not believe it is
likely that more specific information on the species' habitat
requirements would result in a change to the stream reaches designated
as critical habitat for the Appalachian elktoe. The continued presence
of the Appalachian elktoe in these streams indicates the presence of
the habitat requirements for the species, though we may currently
understand these requirements only in relatively general terms. Rather,
more specific information would allow us to better assess potential
effects to the species and its habitat and to better identify and
implement recovery and management activities for the species within
these stream reaches. However, if new information becomes available
indicating that other areas are essential to the conservation of the
Appalachian elktoe, we may revise the designated critical habitat
accordingly through a subsequent rulemaking. Similarly, if new
information indicates any of the
[[Page 61022]]
areas we have designated should not be included in the critical habitat
designation because they no longer meet the definition of critical
habitat and do not provide the habitat elements essential to the life-
cycle needs of the species, we may, through a subsequent rulemaking,
revise the critical habitat designation to omit these areas.
Issue 5: One respondent stated that the Act defines critical
habitat as ``(i) the specific areas within the geographical area
occupied by the species, at the time it is listed * * * and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed * * *'' The respondent further stated that the
Service has insufficient information to make a finding that the
Appalachian elktoe in fact occupied Unit 3, the Cheoah River below
Santeetlah Dam in Graham County, NC, at the time it was listed.
Response: While it is true that we were unaware of the Appalachian
elktoe's occurrence in the Cheoah River when the species was listed on
November 23, 1994 (FR 59 60324), the subsequent discovery of the
species in the Cheoah River (Pennington, pers. comm. 2000) and the fact
that the species is documented to have historically occurred in Tulula
Creek (Clarke 1981), a tributary to the upper Cheoah River, indicates
that the occurrence of the Appalachian elktoe in the Cheoah River is a
natural occurrence of the species that existed both historically and at
the time of listing.
Issue 6: One respondent stated that the conditions in the
Nolichucky River system seem to vary considerably from the primary
constituent element items 2 (geomorphically stable stream channels and
banks) and 4 (sand, gravel, cobble, boulder, and bedrock substrates
with no more than low amounts of fine sediment) in the list of primary
constituent elements in the proposed rule and that conditions in the
Cheoah River may not agree with items 1 (permanent flowing, cool, clean
water), 3 (pool, riffle, and run sequences within the channel), and 6
(periodic natural flooding).
Response: Stream conditions throughout the Nolichucky River system
do vary and where all of the constituent elements do not exist, the
Appalachian elktoe is rarely found, though there have been rare
instances in both the Toe (Nolichucky River system) and Little
Tennessee Rivers that single individual specimens of the elktoe have
been observed in unstable, sifting sand substrates. However, these
individuals were not found during subsequent surveys and were believed
to be individuals that had been displaced and deposited by storm flows
(McGrath, pers. comm. 1996; Fridell, pers. observation 1995, 1996,
1999). Within the areas we are designating as critical habitat, the
sites that support the majority, and healthiest, of the occurrences of
the species provide all of the primary constituent elements, though at
some sites (especially those sites and stream reaches supporting the
lowest numbers of individuals) one or more of the constituent elements,
though present, appear to be limited or of marginal quality and may
require additional management and enhancement for full recovery of the
species. At the sites in the streams within the Nolichucky River
system, as well as elsewhere in the stream reaches that we are
designating as critical habitat, the Appalachian elktoe is found
consistently, with the few exceptions mentioned above, in stable
substrates (most often comprised of sand and gravel interspersed in
areas of cobble, boulders, or exposed bedrock) along reaches with
overall stable, well-vegetated stream banks.
Concerning the questions raised about the conditions in the Cheoah
River, the habitat conditions within the reach of the river that is
being designated as critical habitat have been characterized as riffle,
run, and pool habitat in varying sequences, with interspersed ledge/
step habitat in some reaches (Normandeau Associates Inc. 2001). Flow
within the designated reach of the Cheoah River is maintained by
leakage--2 cubic feet per second (cfs)--from Santeetlah Dam (Normandeau
Associates Inc. 1999) and by flows from numerous tributary streams,
including Cochran, Rock, Yellow, Deep, Barker, and Bear Creeks and
several unnamed tributaries. Data from the U.S. Geological Survey
(USGS) gage (0351706800) located on the river near Bear Pen
Gap, approximately 1.7 miles upstream the river's confluence with the
Little Tennessee River, show that the subject reach of the Cheoah River
has maintained a continuous flow during the period of record (October
1999 through October 2001), with the lowest recorded daily flow of 8.8
cfs and the maximum recorded flow of 1,280 cfs (lowest daily mean flow
of 9.1 cfs; maximum daily mean flow of 612 cfs; mean annual flow of
55.8 cfs) (USGS 2002). Bank-full flow/discharge (bank-full stage is the
point or elevation on the bank where flooding begins and corresponds to
the flow at which channel maintenance is most effective) on the subject
reach of the Cheoah River is estimated at 838 cfs, and from October
1999 through July 15, 2002 (USGS 2002), discharges gaged on the Cheoah
River have reached or exceeded that volume of stream flow on at least 6
days. Accordingly, while it is true that the construction and operation
of the Santeetlah Dam on the Cheoah River have had a significant effect
on both the high and low flows in the Cheoah River downstream of the
dam, we believe the reach of the Cheoah River that we are designating
as critical habitat for the Appalachian elktoe does provide the primary
constituent elements, including items 1, 3, and 6 (see ``Primary
Constituent Elements'' section below); however, one or more of the
constituent elements, though currently present, may be limited or of
marginal quality and may require enhancement for full recovery of the
species.
Issue 7: We received several comments requesting that additional
streams and/or stream reaches be included in the critical habitat
designation for the Appalachian elktoe. Specifically, we received
requests to include in the critical habitat designation the main stem
of the Nolichucky River in Washington and Greene Counties, TN, and the
main stem and tributaries of the French Broad River, Swannanoa River,
Tulula Creek, and the remainder of the Pigeon River in North Carolina.
Four of these respondents stated that the designation of critical
habitat should connect populations.
Response: Connecting the surviving populations of the Appalachian
elktoe is not feasible because all of the surviving populations are
separated from one another by major impoundments. All of the additional
areas that we have been requested to include in the critical habitat
designation for the Appalachian elktoe are, based on the most recent
survey data, currently unoccupied by the species and do not appear to
provide suitable habitat for the elktoe. In accordance with the
definition of critical habitat (see ``Critical Habitat'' section
below), we can only designate unoccupied habitat of the species if,
based on the best available information, it is determined that such
areas are essential to the conservation of the species.
The recovery plan for the Appalachian elktoe (Service 1996) states
that the species will be considered for delisting (recovered) when a
total of six distinct, viable populations of the species exist within
the species' historical range (with at least one each in the Little
Tennessee, French Broad, and Nolichucky River systems) that meet the
criteria outlined in the plan. There are currently six known surviving
populations of the Appalachian elktoe--the Nolichucky River system
[[Page 61023]]
population, Little River population, West Fork Pigeon River/Pigeon
River population, Tuckasegee River population, Little Tennessee River
population, and the Cheoah River population. The areas that we are
designating as critical habitat for the Appalachian elktoe are
distributed in different portions of the species' known historical
range (three populations in the Little Tennessee River system, two in
the French Broad River system, and one in the Nolichucky River system)
and contain the habitat elements essential to the life cycle needs of
the species as they are currently known. We consider the six areas that
we are designating as critical habitat as the most likely sites for
focusing conservation efforts for maintaining and recovering the
Appalachian elktoe in accordance with the goals outlined in our
recovery plan for the species and based on the best scientific
information currently available to us concerning the species' known
historical range and habitat requirements.
Other than the stream reaches that we are designating as critical
habitat, we are not aware of any other streams or stream reaches that
provide suitable habitat for the Appalachian elktoe. However, to the
extent feasible, we will continue, with the assistance of other
Federal, State, and private agencies or organizations, to conduct
surveys and research on the species and to evaluate habitat throughout
its historical range. Should additional information become available
that indicates other areas within the Appalachian elktoe's historical
range provide suitable habitat and are essential to the conservation of
the species, we may revise the critical habitat designation
accordingly. Similarly, if new information indicates any of the areas
we have designated should not be included in the critical habitat
designation because they no longer meet the definition of critical
habitat, we may revise this final critical habitat designation. If,
consistent with available funding and program priorities, we elect to
revise the designation, we will do so through a subsequent rulemaking.
Issue 8. Several of the comments we received expressed concern
about the potential effect the proposed designation of critical habitat
could have on the mining industry in Yancey and Mitchell Counties, NC.
Response: For the reasons described below, we do not believe that
our designation of critical habitat for the Appalachian elktoe will
result in any additional effects on mining activities beyond what
already is required. Designated critical habitat receives regulatory
protection only under section 7(a)(2) of the Act, which requires that
Federal agencies shall, in consultation with the Service, insure that
any action they authorize, fund, or carry out is not likely to
jeopardize the continued existence of any species listed as endangered
or threatened or result in the destruction or adverse modification of
critical habitat. Aside from the protection that may be provided under
section 7, the Act does not provide other forms of protection to areas
designated as critical habitat. Thus, the section 7 requirement does
not apply to mining operations for quartz, feldspar, mica, and other
minerals carried out on private or other non-Federal land unless a
Federal action is involved.
Currently, there are no coal mining operations carried out in
Yancey and Mitchell Counties, NC. If subsurface coal mining was
proposed, the Office of Surface Mining (OSM) would consult with us
under section 7. If surface mining of coal was proposed, the OSM would
be guided by a section 7 biological opinion (BO) we issued to them in
1996 for a consultation addressing surface coal mining and reclamation
operations under State and Federal regulatory programs adopted pursuant
to the Surface Mining Control and Reclamation Act of 1977, as amended,
and its implementing regulations. In situations where the potential
effects of a proposed new action are consistent with the evaluation and
requirements of the prior consultation and BO, no additional
consultation by OSM is needed.
We are not aware of any past or current applications by any of the
mining companies in Yancey and Mitchell Counties to conduct mining
operations in waters or wetlands that may be subject to permits issued
by the U.S. Army Corps of Engineers (COE) pursuant to section 404 of
the Clean Water Act. If mining in waters or wetlands were proposed, the
COE would be required to consult with us if an action by them triggered
the section 7(a)(2) requirement of the Act.
Direct discharge into creeks and rivers associated with the
processing of minerals requires a National Pollution Discharge
Elimination System (NPDES) permit, pursuant to section 402 of the Clean
Water Act. Although NPDES permits are issued by the State of North
Carolina, the EPA has oversight authority of the State's permitting
program. Under the provisions of an interagency Memorandum of Agreement
(MOA) adopted by the Service, the EPA, and the National Marine
Fisheries Service in 2001, the EPA agreed to consult with us on their
decision to delegate to the States the authority to issue Clean Water
Act permits. Once a State has been delegated this authority, the
State's issuance of such permits is not considered to be a Federal
action subject to section 7 consultation. The EPA has approved the
State of North Carolina NPDES permit program, and consequently has not
found it necessary to consult under section 7 regarding NPDES permits
issued by the State of North Carolina for mining discharges. The MOA
also provides that if the Service or EPA have concerns that an NPDES
permit is likely to have a more than minor detrimental effect on a
Federally listed species or critical habitat, a series of steps will be
followed to resolve the situation with the State.
Furthermore, regardless of whether critical habitat has been
designated, Federal agencies are required by section 7 of the Act to
evaluate the direct and indirect effects of their actions and ensure
that their actions are not likely to ``jeopardize the continued
existence'' of a listed species. Because the Appalachian elktoe is
already listed as an endangered species, a Federal agency already is
required to consult with us if it determines that a proposed activity
within its regulatory authority is likely to adversely affect the
Appalachian elktoe, and to insure that the activity will not jeopardize
the continued existence of the species. Under the regulations for
section 7 consultations (50 CFR 402.02), ``jeopardize the continued
existence'' is defined as any activity that would reasonably be
expected, directly or indirectly, to appreciably reduce the likelihood
of survival and recovery of a listed species in the wild. ``Destruction
or adverse modification of critical habitat'' is defined as a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the survival and recovery of a listed species. Common to
the definitions of ``jeopardy'' and ``destruction or adverse
modification of critical habitat'' is the likelihood that both the
``survival and recovery'' of the species are appreciably reduced by the
proposed action. Because of this common threshold, the restricted range
of the Appalachian elktoe, and the fact that all of the areas that we
are designating as critical habitat support populations of the species,
any action that is likely to destroy or adversely modify critical
habitat would also likely result in jeopardy to this species and,
therefore, would already be prohibited by the Act through the jeopardy
standard regardless of whether the area is designated as critical
habitat.
In summary, for the reasons explained above, we do not believe that
our
[[Page 61024]]
designation of critical habitat for the Appalachian elktoe will have
any regulatory effect on mining activities that have no Federal
involvement, and we do not believe the designation of critical habitat
will have any additional regulatory effect on mining activities that
require Federal permits beyond what already is required as a result of
the listing of the species.
Issue 9. Three respondents stated that the designation of critical
habitat ``would, and will put a stop to all agriculture in the area;
this could include the family garden.'' The same respondents also
stated that the designation of critical habitat would adversely affect
apple growers and Christmas tree farmers.
Response: As stated above, the regulatory requirements associated
with critical habitat do not apply to any agricultural activities,
including apple orchards, Christmas tree farms, or other tree farming,
row crop farming, livestock farming, or any other activity carried out
on private land that does not require and/or involve a Federal permit
or Federal funding. Generally, the only Federal regulations associated
with agricultural activities with the potential to trigger the section
7 consultation requirements of the Act involve the use of pesticides
and herbicides. The EPA consults with us on the registration of certain
pesticides and herbicides that have been identified by the EPA to have
the potential to harm listed species. In such cases, the potential
effects to listed species and their habitat are addressed through
warnings and restrictions placed on the label of the subject pesticides
and herbicides (i.e., restrictions on application rates, application
methods, frequency of application, disposal of containers, etc.).
Further, as explained in our response to Issue 8, above, section 7
consultations on the registration of pesticides or herbicides, or on
any other Federal activity with the potential to adversely affect the
Appalachian elktoe or any federally listed species, is required
regardless of whether critical habitat has been designated. For these
reasons, we do not believe our designation of critical habitat for the
Appalachian elktoe will result in any additional effects on agriculture
beyond existing requirements related to the listing of the species.
Issue 10: Several respondents stated that the designation of
critical habitat will infringe on private property rights, and one
respondent stated that the designation will jeopardize the private
property rights of a landowner even when that landowner is not in any
way contributing to the endangerment of an endangered species.
Response: As explained in the response to Issues 8 and 9, the only
regulatory consequence of the designation of critical habitat is the
requirement under section 7 of the Act for Federal agencies to insure,
in consultation with us, that any action they authorize, fund, or carry
out is not likely to result in the destruction or adverse modification
of critical habitat. With regard to critical habitat, this requirement
has no regulatory impact on a private landowner who takes action on his
or her land that does not involve Federal funding or authorization.
Because the Appalachian elktoe already is listed as endangered, Federal
agencies already are required to consult with us on any of their
actions that are likely to adversely affect the species and to insure
that their actions do not jeopardize the species' continued existence,
regardless of whether critical habitat has been designated. Therefore,
we do not believe the designation of critical habitat for the
Appalachian elktoe will result in any significant additional regulatory
burden on landowners or affect the use of their property.
Issue 11: Several respondents stated that they agreed with the
Service's original determination, made when the species was listed,
that the designation of critical habitat was not prudent for the
Appalachian elktoe. One of these respondents expressed concern that the
designation of critical habitat and the associated publication of maps
of critical habitat could increase the threat of collecting of the
Appalachian elktoe and that it would be far safer for the Appalachian
elktoe if critical habitat were not designated for the species.
Response: Section 4(a)(3)(A) of the Act requires that, to the
maximum extent prudent and determinable, we designate critical habitat
at the time a species is determined to be endangered or threatened. The
regulations state that the designation of critical habitat is not
prudent when one or both of the following situations exist: (1) The
species is threatened by taking or other human activity and the
identification of critical habitat can be expected to increase the
degree of such threat to the species or (2) such designation of
critical habitat would not be beneficial to the species (see ``Critical
Habitat'' section below).
When we listed the Appalachian elktoe as endangered on November 23,
1994 (59 FR 60324), we concurrently determined that the designation of
critical habitat was not prudent because such a designation would not
be beneficial to the species. In addition, we expressed our concern
that the rarity and uniqueness of the Appalachian elktoe could generate
interest in the species and that the publicity associated with the
designation of critical habitat, together with the publication of maps
and descriptions of critical habitat, could increase the vulnerability
of the species to collection, vandalism, or other disturbance. Although
we did not base our ``not prudent'' determination on an increased
threat to the Appalachian elktoe, we did consider the potential
increased threat to the species from critical habitat designation in
making our determination that the designation of critical habitat was
not prudent for the Appalachian elktoe because it would not benefit the
species.
In the last few years, court decisions have overturned our
determinations regarding a variety of species, concluding that the
designation of critical habitat would not be prudent (e.g., Natural
Resources Defense Council v. U.S. Department of the Interior, 113 F. 3d
1121 [9th Cir. 1997]; Conservation Council for Hawaii v. Babbitt, 2 F.
Supp. 2d 1280 [D. Hawaii 1998]).
In Conservation Council of Hawaii v. Babbitt, 2 F. Supp. 2d 1280,
1284 (D. Hawaii 1998), the United States District Court for the
District of Hawaii ruled that the Service could not rely on the
``increased threat'' rationale for a ``not prudent'' determination
without evidence of a specific threat to the species at issue or a
similarly situated species. In Natural Resources Defense Council v.
U.S. Department of the Interior, 113 F. 3d 1121, 1125 (9th Cir. 1997),
the United States Court of Appeals for the Ninth Circuit ruled that, in
order to invoke the ``increased threat rationale'' the Service must
balance the threat against the benefit to the species of designating
critical habitat. The recent court decisions have stated that, in the
absence of a finding that the designation of critical habitat would
increase threats to a species, if there are any benefits to critical
habitat designation (e.g., an educational or informational benefit that
can assist in the conservation of the species), then a prudent finding
is warranted and the existence of another type of protection, even if
potentially greater, does not justify a not prudent finding.
At this time we do not have documented evidence for the collection,
trade, vandalism, or other unauthorized human disturbance specific to
the Appalachian elktoe, or a similarly situated species. Consequently,
we cannot make a ``not prudent'' determination for the designation of
critical habitat for the Appalachian
[[Page 61025]]
elktoe on the basis of an expected increase in the degree of threat to
the species from collecting, vandalism, or other take as a result of
the designation of critical habitat. Because the designation of
critical habitat may provide some conservation benefit to the
Appalachian elktoe by providing additional information about its
habitat requirements to individuals, local and State governments, and
others interested in assisting in conservation efforts for the species,
we cannot support a determination that the designation of critical
habitat would not be beneficial to the species.
Issue 12: One respondent requested information concerning the steps
taken to determine the status of the Appalachian elktoe and ``who is
using, has used, or has stated intent to use it (the species' status)
for what stated purpose.''
Response: In listing the Appalachian elktoe as an endangered
species (59 FR 60324) and determining the areas we consider essential
for the conservation of the species (the areas we are designating as
critical habitat), we used the best scientific and commercial
information available to us concerning the species' historical range,
present range, life history and habitat requirements, and factors that
have contributed to its decline and those that pose a threat to its
continued existence. This information was obtained from a variety of
sources, including surveys and studies conducted by State, Federal,
university, and private biologists and researchers and a review of
published and unpublished literature. A summary of this information and
the sources used is provided in the recovery plan for the Appalachian
elktoe (Service 1996) and in the ``Background'' sections of the final
rule listing the Appalachian elktoe as an endangered species (59 FR
60324), the proposed rule to designate critical habitat for the
Appalachian elktoe (66 FR 9540), and in this final rule designating
critical habitat for the Appalachian elktoe. The steps taken in
compiling, analyzing, and disseminating this information, as well as
the dates of the steps taken, are outlined in the ``Previous Federal
Actions'' section of the final rule listing the Appalachian elktoe as
endangered, the proposed rule to designate critical habitat for the
Appalachian elktoe, and this final rule.
We cannot speak for other agencies, organizations, or individuals,
but our purpose and intent in listing the Appalachian elktoe as an
endangered species and in designating critical habitat for the species
is to fulfill our obligations and responsibilities under the Act and to
assist other agencies, organizations, and individuals in fulfilling
their obligations under the Act.
In enacting the Act, Congress declared that species of fish,
wildlife, and plants in the United States in danger of, or threatened
with, extinction are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its people. The
Service and the National Marine Fisheries Service are the two primary
agencies responsible for administering the Act. Our purposes and
responsibilities through the Act are to identify endangered and
threatened species, protect these species, and provide a means to
conserve their ecosystems.
Issue 13: Several respondents questioned the economic benefits of
the designation of critical habitat for the Appalachian elktoe
mentioned by supporters of the proposed designation. Three of these
respondents specifically mentioned a citation of the potential economic
benefit of the designation to ``mussel harvest in the State of
Tennessee.''
Response: There is little disagreement in the published economic
literature that real social welfare benefits can result from the
conservation and recovery of endangered or threatened species. Such
benefits have also been ascribed to the preservation of open space and
biodiversity, both of which are associated with species conservation.
Likewise, a local and regional economy can benefit from the
preservation of healthy populations of endangered and threatened
species and the habitat on which these species depend. However, these
benefits would be most closely associated with the listing of a species
as endangered or threatened, because listing serves to provide the
majority of the protection and conservation benefits afforded under the
Act.
With regard to the comments concerning ``mussel harvest,'' we have
not identified, either in the proposed rule to designate critical
habitat for the Appalachian elktoe or in the draft economic analysis of
the proposed designation of critical habitat for the Appalachian elktoe
(or any other document associated with the proposed designation), the
potential benefit to the commercial harvest of freshwater mussels that
may be derived from the protection of Appalachian elktoe habitat. While
certain species of freshwater mussels are harvested in some
southeastern States (including some areas in western Tennessee) for
their shells for use in the cultured pearl industry (plugs are cut from
the shells, formed into beads, and inserted into marine oysters to
assist in the formation of pearls), the shell of the Appalachian elktoe
is not thick enough to be of value to this industry. Furthermore, no
mussel species and no areas where their collection is permitted (the
nearest river reach where the harvesting of mussels for the cultured
pearl industry is allowed is the Tennessee River in northern Alabama)
occur in close enough proximity to the areas that support the
Appalachian elktoe to receive benefit from water and habitat quality
protection that may be attributable to measures implemented for the
protection of the Appalachian elktoe and its habitat.
Issue 14: One respondent questioned why a public hearing on the
proposed designation of critical habitat was not held in the Nolichucky
River watershed in Mitchell County or Yancey County, NC.
Response: Our regulations require that we hold at least one public
hearing, if a public hearing is requested. Because the majority of the
comments we received were from organizations and individuals in
Tennessee and because a portion of the Nolichucky River was the only
area in Tennessee proposed for the designation of critical habitat for
the Appalachian elktoe, we elected to hold one of the hearings in
Erwin, TN. Erwin is within the Nolichucky River system and is located
in Unicoi County, TN, immediately across the State line from Mitchell
and Yancey Counties, NC. We elected to hold the second public hearing
in Bryson City, Swain County, NC, as a central location to cover the
portions of the Cheoah River (Graham County), Little Tennessee River
(Swain and Macon Counties), Tuckasegee River (Swain and Jackson
Counties), and West Fork Pigeon River and Pigeon River (Haywood County)
being proposed for the designation of critical habitat. Also, following
the public hearings, at the request of the County Manager, Yancey
County, NC, we attended a meeting of the Yancey County Board of
Commissioners where we gave a presentation about the proposed
designation of critical habitat for the Appalachian elktoe to the
commissioners and the public in attendance.
Issue 15: We received several comments addressing the economic and
demographic data for Mitchell County, NC, that were presented in the
draft economic analysis.
Response: In response to the information received, we have revised
the data concerning the human population, population growth, and per
capita income for Mitchell County, NC,
[[Page 61026]]
in the addendum to the economic analysis of critical habitat
designation for the Appalachian elktoe.
Issue 16: Several of the respondents stated that the draft economic
analysis failed to adequately assess the potential economic benefits of
the designation of critical habitat for the Appalachian elktoe.
Response: In the addendum to the draft economic analysis, we have
provided additional information concerning, and an analysis of, the
potential economic benefits associated with measures implemented for
the protection of water and habitat quality that may occur and be
attributable to the effects of future section 7 consultations under the
Act for the Appalachian elktoe and its designated critical habitat.
However, it is not possible to fully describe and accurately quantify
all the benefits of potential future section 7 consultations in the
context of the economic analysis. And, as stated in the draft economic
analysis, we believe the benefits are best expressed in biological
terms that can be weighed against the potential costs of the
rulemaking.
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act 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) that may require special management consideration or
protection; and (ii) 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.
Pursuant to regulations at 50 CFR 424.12(e), areas outside the
geographical area presently occupied by the species shall be designated
as critical habitat only when a designation limited to its present
range would be inadequate to ensure the conservation of the species.
``Conservation'' is defined in section 3(3) of the Act as the use of
all methods and procedures necessary to bring endangered or threatened
species to the point where listing under the Act is no longer
necessary. Regulations under 50 CFR 424.02(j) define ``special
management considerations or protection'' to mean any methods or
procedures useful in protecting the physical and biological features of
the environment for the conservation of listed species.
In order to be included in a critical habitat designation, the
habitat must first be ``essential to the conservation of the species.''
Critical habitat designations identify, to the extent known using the
best scientific data available, habitat areas that provide essential
life cycle needs of the species (i.e., areas on which are found the
primary constituent elements, as defined at 50 CFR 424.12(b)).
Section 4 of the Act requires that we designate critical habitat
for a species at the time of listing, to the extent such habitat is
determinable. We are required to designate those areas we know to be
critical habitat, based on the best information available to us. When
designating critical habitat, we will designate only areas currently
known to be essential. Essential areas should already have the features
and habitat characteristics that are necessary to sustain the species.
We will not speculate about what areas might be found to be essential
if better information became available or what areas may become
essential over time.
Our regulations state that, ``The Secretary shall designate as
critical habitat areas outside the geographical area presently occupied
by a species only when a designation limited to its present range would
be inadequate to ensure the conservation of the species'' (50 CFR
424.12(e)). Accordingly, unless the best available scientific data
demonstrate that the conservation needs of the species cannot be met
within currently occupied areas, we will not designate critical habitat
in areas outside the geographical area presently occupied by the
species.
Our Policy on Information Standards Under the Endangered Species
Act, published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to
ensure that decisions made by us represent the best scientific and
commercial data available. This policy requires our biologists, to the
extent consistent with the Act and with the use of the best scientific
and commercial data available, to use primary and original sources of
information as the basis for recommendations to designate critical
habitat. When determining which areas are critical habitat, a primary
source of information should be the listing package for the species and
the recovery plan, if one has been adopted by us. Additional
information may be obtained from articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments or other unpublished
materials (i.e., gray literature), and expert opinions.
Section 4 of the Act requires that we designate critical habitat
based on what we know at the time of the designation. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that the designation of critical habitat may
not include all of the habitat areas that may eventually be determined
to be necessary for the conservation of the species. For these reasons,
it should be understood that critical habitat designations do not
signal that habitat outside the designation is unimportant or that it
may not be necessary for the conservation of the species. Areas outside
the critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) of
the Act and to the regulatory protections afforded by the section
7(a)(2) jeopardy standard and the section 9 take prohibition, as
determined on the basis of the best available information at the time
of the action. We anticipate that federally funded or assisted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Section 4(b)(2) of the Act requires us to base critical habitat
designations on the best scientific data available and after taking
into consideration the economic impact, and any other relevant impact,
of specifying any particular area as critical habitat. We may exclude
areas from critical habitat designation if we determine that the
benefits of excluding those areas outweigh the benefits of including
the areas within the critical habitat, provided the exclusion will not
result in the extinction of the species.
Methods
As required by section 4(b)(2) of the Act and regulations at 50 CFR
424.12, we used the best scientific data available to determine areas
that contain the physical and biological features that are essential
for the conservation of the Appalachian elktoe. This included
information from the listing package for the species, the recovery
plan, scientific publications, recent surveys and reports, and
conversations with other Federal, State, and private biologists and
researchers familiar with the species.
The areas of critical habitat described below constitute our best
assessment of the areas needed for the conservation of
[[Page 61027]]
the Appalachian elktoe in accordance with the goals outlined in our
recovery plan for the species (Service 1996) and are based on the best
scientific information currently available to us concerning the
species' known present and historical range, habitat, biology, and
threats. The recovery plan for the Appalachian elktoe states that the
species will be considered for delisting when a total of six distinct,
viable populations exist and other criteria outlined in the plan are
met (Service 1996). Based on the most recent survey data for the
Appalachian elktoe, there are currently six surviving populations of
the species (see ``Background'' section above). The areas in the six
units that we are designating as critical habitat for the species
include habitat for each of these populations. All of the areas we are
designating as critical habitat are within what we believe to be the
geographical area occupied by the Appalachian elktoe, include all known
surviving occurrences of the species, are essential for the
conservation of the species, and provide for the species' essential
life cycle needs. These designated areas are distributed throughout the
Appalachian elktoe's range, with at least one occurring in each of the
Little Tennessee, French Broad, and Nolichucky River systems. In
addition, given the threats to the species' habitat discussed in the
final listing rule (59 FR 60324) and the recovery plan for the species
(Service 1996), and summarized in the ``Background'' section above, we
believe these areas may need special management consideration or
protection.
We will continue, with the assistance of other Federal, State, and
private researchers, to conduct surveys and research on the species and
its habitat. If new information becomes available indicating that other
areas within the Appalachian elktoe's historical range are essential to
the conservation of the species and provide for the essential life
cycle needs of the species, we will revise the critical habitat
designation for the Appalachian elktoe accordingly.
Primary Constituent Elements
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas to propose
as critical habitat, we are required to base critical habitat
determinations on the best scientific data available and to consider
those physical and biological features (primary constituent elements)
that are essential to the conservation of the species and that may
require special management considerations or protection. These physical
and biological features include, but are not limited to, space for
individual and population growth and for normal behavior; food, water,
air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, and
rearing of offspring; and habitats that are protected from disturbance
or are representative of the historical, geographical, and ecological
distribution of a species (50 CFR 424.12(b)).
When considering areas for designation as critical habitat, we are
required to focus on the principal biological and physical constituent
elements within the defined area that are essential to the conservation
of the species (50 CFR 424.12 (b)). Although additional information is
needed to better define the habitat requirements of the Appalachian
elktoe, particularly the microhabitat requirements, based on the best
available information concerning the habitat and life history of the
Appalachian elktoe (see ``Background'' section above), the primary
constituent elements essential for the conservation of the Appalachian
elktoe are:
1. Permanent, flowing, cool, clean water;
2. Geomorphically stable stream channels and banks;
3. Pool, riffle, and run sequences within the channel;
4. Stable sand, gravel, cobble, and boulder or bedrock substrates
with no more than low amounts of fine sediment;
5. Moderate to high stream gradient;
6. Periodic natural flooding; and
7. Fish hosts, with adequate living, foraging, and spawning areas
for them.
Critical Habitat Designation
The areas designated as critical habitat for the Appalachian elktoe
total approximately 231.1 km (144.3 mi) of rivers. Table 1 summarizes
the location and extent of designated critical habitat. All of the
designated areas require special management considerations to ensure
their contribution to the conservation of the Appalachian elktoe.
Table 1.--Approximate Lengths of Streams Designated as Critical Habitat for the Appalachian Elktoe
----------------------------------------------------------------------------------------------------------------
Approximate length in
State County Unit and stream kilometers (miles)
----------------------------------------------------------------------------------------------------------------
North Carolina.................................. Macon and Swain... Unit 1-Little 38.5 (24)
Tennessee River.
Jackson and Swain. Unit 2-Tuckasegee 41.6 (26)
River.
Graham............ Unit 3-Cheoah 14.6 (9.1)
River.
Transylvania...... Unit 4-Little 7.5 (4.7)
River.
Haywood........... Unit 5-West Fork 17.8 (11.1)
Pigeon River and
Pigeon River.
Yancey............ Unit 6-South Toe 22.6 (14.1)
River.
Yancey............ Unit 6-Cane River 26.4 (16.5)
Yancey and Unit 6-North Toe 5.9 (3.7)
Mitchell. River.
Yancey and Unit 6-Toe River. 34.6 (21.6)
Mitchell.
[[Page 61028]]
North Carolina and Tennessee.................... Yancey and Unit 6-Nolichucky 21.6 (13.5)
Mitchell (NC) and River.
Unicoi (TN).
----------------------------------------------------------------------------------------------------------------
The lateral extent of designated critical habitat within units 1 to
6 is the ordinary high water line on each bank. As defined in 33 CFR
329.11, the ordinary high water line on non-tidal 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.
We are designating the following areas as critical habitat for the
Appalachian elktoe:
Unit 1. Macon County and Swain County, NC
Unit 1 encompasses approximately 38.5 km (24 mi) of the main stem
of the Little Tennessee River, from the Lake Emory Dam at Franklin,
Macon County, NC, downstream to the backwaters of Fontana Reservoir in
Swain County, NC. This unit is part of the currently occupied range of
the Appalachian elktoe and, based on the best available information,
provides the physical and biological habitat elements necessary for the
life cycle needs of the species. The area supports one of the only
three known surviving populations of the Appalachian elktoe in the
Little Tennessee River system. Based on our consideration of the best
available information, including the recovery goals and criteria
outlined in the recovery plan for the Appalachian elktoe (Service
1996), protection of this unit is essential to the conservation of the
species.
Unit 2. Jackson County and Swain County, NC
Unit 2 encompasses approximately 41.6 km (26 mi) of the main stem
of the Tuckasegee River (Little Tennessee River system), from the N.C.
State Route 1002 Bridge in Cullowhee, Jackson County, NC, downstream to
the N.C. Highway 19 Bridge, north of Bryson City, Swain County, NC.
This unit is part of the currently occupied range of the Appalachian
elktoe and, based on the best available information, provides the
physical and biological habitat elements necessary for the life cycle
needs of the species. The area supports one of the only three known
surviving populations of the Appalachian elktoe in the Little Tennessee
River system. Based on our consideration of the best available
information, including the recovery goals and criteria outlined in the
recovery plan for the Appalachian elktoe (Service 1996), protection of
this unit is essential to the conservation of the species.
Unit 3. Graham County, NC
Unit 3 encompasses approximately 14.6 km (9.1 mi) of the main stem
of the Cheoah River (Little Tennessee River system), from the
Santeetlah Dam, downstream to its confluence with the Little Tennessee
River. This unit is part of the currently occupied range of the
Appalachian elktoe and, based on the best available information,
provides the physical and biological habitat elements necessary for the
life cycle needs of the species. The area supports one of the only
three known surviving populations of the Appalachian elktoe in the
Little Tennessee River system. Based on our consideration of the best
available information, including the recovery goals and criteria
outlined in the recovery plan for the Appalachian elktoe (Service
1996), protection of this unit is essential to the conservation of the
species.
Unit 4. Transylvania County, NC
Unit 4 encompasses approximately 7.5 km (4.7 mi) of the main stem
of the Little River (French Broad River system), from the Cascade Lake
Power Plant, downstream to its confluence with the French Broad River.
This unit is part of the currently occupied range of the Appalachian
elktoe and, based on the best available information, provides the
physical and biological habitat elements necessary for the life cycle
needs of the species. The area supports one of the only two known
surviving populations of the Appalachian elktoe in the French Broad
River system. Based on our consideration of the best available
information, including the recovery goals and criteria outlined in the
recovery plan for the Appalachian elktoe (Service 1996), protection of
this unit is essential to the conservation of the species.
Unit 5. Haywood County, NC
Unit 5 encompasses approximately 17.8 km (11.1 mi) of the main stem
of the West Fork Pigeon River (French Broad River system), from the
confluence of the Little East Fork Pigeon River, downstream to the
confluence of the East Fork Pigeon River, and the main stem of the
Pigeon River, from the confluence of the West Fork Pigeon River and the
East Fork Pigeon River, downstream to the N.C. Highway 215 Bridge
crossing, south of Canton, NC. This unit is part of the currently
occupied range of the Appalachian elktoe and, based on the best
available information, provides the physical and biological habitat
elements necessary for the life cycle needs of the species. The area
supports one of the only two known surviving populations of the
Appalachian elktoe in the French Broad River system. Based on our
consideration of the best available information, including the recovery
goals and criteria outlined in the recovery plan for the Appalachian
elktoe (Service 1996), protection of this unit is essential to the
conservation of the species.
Unit 6. Yancey County and Mitchell County, NC, and Unicoi County, TN
Unit 6 encompasses approximately 5.9 km (3.7 mi) of the main stem
of the North Toe River, Yancey and Mitchell Counties, NC, from the
confluence of Big Crabtree Creek, downstream to the confluence of the
South Toe River; approximately 22.6 km (14.1 mi) of the main stem of
the South Toe River, Yancey County, NC, from the N.C. State Route 1152
Bridge, downstream to its confluence with the North Toe River;
approximately 34.6 km (21.6 mi) of the main stem of the Toe River,
Yancey and Mitchell Counties, NC, from the confluence of the North Toe
River and the South Toe River, downstream to the confluence of the Cane
River; approximately 26.4 km (16.5 mi) of the
[[Page 61029]]
main stem of the Cane River, Yancey County, NC, from the N.C. State
Route 1381 Bridge, downstream to its confluence with the Toe River; and
approximately 21.6 km (13.5 mi) of the main stem of the Nolichucky
River from the confluence of the Toe River and the Cane River in Yancey
County and Mitchell County, NC, downstream to the U.S. Highway 23/19W
Bridge southwest of Erwin, Unicoi County, TN. This unit is part of the
currently occupied range of the Appalachian elktoe and, based on the
best available information, provides the physical and biological
habitat elements necessary for the life cycle needs of the species. The
area supports the only two known surviving populations of the
Appalachian elktoe in the Nolichucky River system. Based on our
consideration of the best available information, including the recovery
goals and criteria outlined in the recovery plan for the Appalachian
elktoe (Service 1996), protection of this unit is essential to the
conservation of the species.
Land Ownership
Of the areas that we are designating as critical habitat for the
Appalachian elktoe, approximately 67 percent--14.4 km (9.0 mi)--of the
Nolichucky River is bordered by the Pisgah National Forest in North
Carolina and the Cherokee National Forest in Tennessee; 88 percent--
12.8 km (8.0 mi)--of the Cheoah River is bordered by the Nantahala
National Forest; and a small percentage of the Tuckasegee River is
bordered by land belonging to The Eastern Band of Cherokee Indians. The
remaining areas that we are designating as critical habitat for the
Appalachian elktoe, with the exception of State road and highway
rights-of-way, are bordered by land under private ownership.
Effects of Critical Habitat Designation
Designating critical habitat does not, in itself, lead to the
recovery of a listed species. The designation does not establish a
reserve, create a management plan, establish numerical population
goals, prescribe specific management practices (inside or outside of
critical habitat), or directly affect areas not designated as critical
habitat. Specific management recommendations for areas designated as
critical habitat are most appropriately addressed in recovery and
management plans and through section 7 consultations and section 10
permits.
Critical habitat receives regulatory protection only under section
7 of the Act through the prohibition against the destruction or adverse
modification of designated critical habitat by actions carried out,
funded, or authorized by a Federal agency. Aside from the protection
that may be provided under section 7, the Act does not provide other
forms of protection to land designated as critical habitat. Because
consultation under section 7 of the Act does not apply to activities on
private or other non-Federal land that do not involve a Federal action,
critical habitat designation would not afford any protection under the
Act against such activities. Accordingly, the designation of critical
habitat will not have any regulatory effect on private or State
activities unless those activities require a Federal permit,
authorization, or funding.
Section 7(a)(2) of the Act and regulations at 50 CFR 402.10 require
Federal agencies to ensure, in consultation with us, that any action
they authorize, fund, or carry out is not likely to jeopardize the
continued existence of any threatened or endangered species or result
in the destruction or adverse modification of designated critical
habitat. ``Destruction or adverse modification'' is defined as a direct
or indirect alteration that appreciably diminishes the value of
critical habitat for both the survival and recovery of the listed
species for which critical habitat was designated. Such alternations
include, but are not limited to, alterations adversely modifying any of
those physical or biological features that were the basis for
determining the habitat to be critical (50 CFR 402.02).
Activities on Federal land, activities on private or State land
carried out by a Federal agency, or activities receiving funding or
requiring a permit from a Federal agency that may affect the designated
critical habitat of the Appalachian elktoe will require consultation
under section 7 of the Act. However, pursuant to section 7 of the Act
and the related consultation regulations, Federal agencies also are
required to consult with us on any action that may affect a listed
species and to ensure that actions they authorize, fund, or carry out
do not jeopardize the continued existence of listed species. Activities
that jeopardize listed species are defined as actions that ``directly
or indirectly, reduce appreciably the likelihood of both the survival
and recovery of a listed species' (50 CFR 402.02). Federal agencies are
prohibited from jeopardizing listed species through their actions,
regardless of whether critical habitat has been designated for the
species.
Common to the definitions of both ``jeopardy'' and ``destruction or
adverse modification of critical habitat'' is the concept that the
likelihood of both survival and recovery of the species are appreciably
reduced by the action. Because of the small size of the surviving
populations of the Appalachian elktoe, the species' restricted range,
and the limited amount of suitable habitat available to the species,
and because all of the units that we are designating as critical
habitat for the Appalachian elktoe currently support populations of the
species, actions that are likely to destroy or adversely modify the
Appalachian elktoe's critical habitat are also likely to jeopardize
this species. Accordingly, even though Federal agencies will be
required to evaluate the potential effects of their actions on any
habitat that is designated as critical habitat for the Appalachian
elktoe, this designation would not be likely to change the outcome of
section 7 consultations.
If, through section 7 consultation, a Federal agency determines
that an action or activity they are proposing may adversely affect a
listed species and/or designated critical habitat, we will issue a
biological opinion determining whether the effects of the action are
likely to jeopardize the continued existence of the species and/or
destroy or adversely modify designated critical habitat. If we issue a
biological opinion concluding that the action is likely to jeopardize
the species or destroy or adversely modify designated critical habitat,
we will also provide reasonable and prudent alternatives to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined as alternative actions that can be implemented in a manner
that is consistent with the intended purpose of the action, that is
consistent with the scope of the Federal agency's legal authority and
jurisdiction, that is economically and technologically feasible, and
that the Director of the Service believes would avoid jeopardizing the
species' continued existence and/or the destruction or adverse
modification of designated critical habitat.
Section 4(b)(8) of the Act requires us to briefly describe and
evaluate, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may destroy
or adversely modify such habitat or may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat are, as discussed above, those that alter the primary
constituent elements to the extent that the value of critical habitat
for both the survival and recovery of the Appalachian elktoe is
appreciably diminished. This may include any activity, regardless of
the location of the activity in relation to designated critical
[[Page 61030]]
habitat, that would significantly alter the natural flow regime,
channel morphology or geometry, or water chemistry or temperature of
any of the six designated critical habitat units, as described by the
primary constituent elements, or any activity that could result in the
significant discharge or deposition of sediment, excessive nutrients,
or other organic or chemical pollutants into any of the six designated
critical habitat units. Such Federal activities include (but are not
limited to) carrying out or issuing permits, authorizations, or funding
for reservoir construction; stream and/or stream-bank alterations;
wastewater facility development; hydroelectric facility construction
and operation; pesticide/herbicide applications; forestry operations;
and road, bridge, and utility construction. These same activities also
have the potential to jeopardize the continued existence of the
Appalachian elktoe, and Federal agencies are already required to
consult with us on these types of activities, or any other activity,
that may affect the species.
Requests for copies of the regulations on listed wildlife and
inquiries about prohibitions and permits, or questions regarding
whether specific activities will constitute adverse modification of
critical habitat, may be addressed to the U.S. Fish and Wildlife
Service, Asheville Field Office (see ADDRESSES section).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas as critical
habitat upon reaching a determination that the benefits of such
exclusion outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species.
Following publication of the proposed critical habitat designation,
a draft economic analysis was prepared to estimate the potential
economic effect of the designation. The draft analysis was made
available for public review on May 16, 2002 (67 FR 34893). We accepted
comments on the draft analysis until July 1, 2002. Following the close
of the comment period on the draft economic analysis, a final addendum
was completed that incorporated public comments on the draft analysis.
Our draft economic analysis and final addendum evaluated the
potential future effects associated with the listing of the Appalachian
elktoe as an endangered species under the Act, as well as any potential
effect of the designation of critical habitat above and beyond those
regulatory and economic impacts associated with the listing. To
quantify the proportion of total potential economic impacts
attributable to the critical habitat designation, the analysis
evaluated a ``without critical habitat'' baseline and compared it to a
``with critical habitat'' scenario. The ``without critical habitat''
baseline represented the current and expected economic activity under
all modifications prior to the critical habitat designation, including
protections afforded the species under Federal and State laws. The
difference between the two scenarios measured the net change in
economic activity attributable to the designation of critical habitat.
The categories of potential costs considered in the analysis included
the costs associated with: (1) Conducting section 7 consultations
associated with the listing or with the critical habitat, including
incremental consultations and technical assistance; (2) modifications
to projects, activities, or land uses resulting from the section 7
consultations; (3) uncertainty and public perceptions resulting from
the designation of critical habitat; and (4) potential offsetting
beneficial costs associated with critical habitat, including
educational benefits.
The majority of future section 7 consultations associated with the
areas being designated as critical habitat for the Appalachian elktoe
are likely to address road and bridge construction, Federal forestry
activities, residential development requiring a Federal permit, and
hydropower relicensings. The draft analysis estimated that, over a 10-
year period, approximately four formal consultations and 71 to 89
informal consultations will occur on projects with the potential to
affect the Appalachian elktoe and its proposed critical habitat. In
addition, the draft analysis estimated that we will provide technical
assistance to various parties on 99 to 107 occasions. Our draft
analysis assumed that many of the potential future consultations are
likely to result in Service recommendations for certain types of
project modifications. Based on our draft analysis, we concluded that
costs associated with future section 7 consultations involving the
Appalachian elktoe and its designated critical habitat could
potentially range from $1.943 to $5.121 million over the next 10 years.
However, the draft economic analysis indicates that the listing of the
Appalachian elktoe and the resultant Federal responsibility to avoid
projects that would jeopardize the continued existence of the species
are likely to trigger these impacts regardless of whether critical
habitat is designated.
A detailed discussion of our analysis is contained in the Draft
Economic Analysis of Proposed Critical Habitat Designation for the
Appalachian Elktoe (April 2002) and the Final Addendum to the Economic
Analysis of Critical Habitat Designation for the Appalachian Elktoe
(August 2002). Both documents are included in the supporting
documentation for this rulemaking and are available for inspection at
the Asheville Field Office (see ADDRESSES).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule and was reviewed by the Office of Management and
Budget (OMB), as OMB determined that this rule may raise novel legal or
policy issues. The Service prepared an economic analysis of this
action. The Service used this analysis to meet the requirement of
section 4(b)(2) of the Endangered Species Act to determine the economic
consequences of designating the specific areas as critical habitat. The
draft economic analysis was made available for public comment, and we
considered those comments during the preparation of this rule.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), 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 that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that a rule
will not have a significant economic impact on a substantial number of
small entities. The SBREFA also amended the RFA to require a
certification statement. We are hereby certifying that this rule
designating critical habitat for the
[[Page 61031]]
Appalachian elktoe will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale for this assertion.
According to the Small Business Administration (http://www.sba.gov/
size/), 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. 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 consider the types of
activities that might trigger regulatory impacts under this rule as
well as the 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.
In estimating the numbers of small entities potentially affected,
we also considered whether their activities have any Federal
involvement. The designation of critical habitat has the potential to
affect only activities conducted, funded, or permitted by Federal
agencies. Some kinds of activities are not likely to have any Federal
involvement; therefore, they will not be affected by the critical
habitat designation. Activities with Federal involvement that may
require consultation regarding the Appalachian elktoe and its critical
habitat include: regulation of activities affecting waters of the
United States by the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act; forestry activities carried out by the U.S. Forest
Service; and road construction, maintenance, and right-of-way
designation authorized, funded, or carried out by a Federal agency. As
required under section 4(b)(2) of the Act, we conducted an analysis of
the potential economic impacts of this critical habitat designation. In
the analysis, we found that future section 7 consultations resulting
from the listing of the Appalachian elktoe and the proposed designation
of critical habitat could potentially impose total economic costs for
consultations and modifications to projects ranging between
approximately $1.943 and $5.121 million over a 10-year period.
In determining whether this rule could ``significantly affect a
substantial number of small entities,'' the economic analysis first
determined whether critical habitat could potentially affect a
``substantial number'' of small entities in counties supporting
critical habitat areas. While the SBREFA does not explicitly define
``substantial number,'' the Small Business Administration, as well as
other Federal agencies, has interpreted this to represent an impact on
20 percent or greater of the number of small entities in any industry.
Based on the past consultation history of the Appalachian elktoe, the
economic analysis anticipated that future section 7 consultations could
potentially affect small businesses associated with residential
development. To be conservative (i.e., more likely to overstate impacts
than understate them), the economic analysis assumed that a unique
company will undertake each of the consultations forecasted in a given
year; thus, the number of businesses affected is equal to the total
annual number of consultations projected in the economic analysis.
Based on our analysis, the number of small businesses estimated to
be impacted by future section 7 consultations is approximately 4.8
percent of the small businesses in the affected counties. This finding
is based on the extremely conservative assumption that the potential
universe of affected entities includes only those within the counties
in which critical habitat units are located and attributes all of the
effects of section 7 consultation on these activities solely to the
critical habitat designation, even though these effects would likely
occur with or without the designation of critical habitat for the
Appalachian elktoe due to the listing of the species. Because these
estimates are less than the 20 percent threshold that would be
considered ``substantial,'' the analysis provided a basis for
concluding that this designation will not affect a substantial number
of small entities as a result of the designation of critical habitat
for the Appalachian elktoe. The draft Economic Analysis and the final
Addendum contain the factual bases for this certification and contain a
complete analysis of the potential economic effects of this
designation. Copies of these documents are in the supporting record for
the rulemaking and are available at the Asheville Field Office (see
ADDRESSES section).
In summary, we have considered whether this rule could result in
significant economic effects on a substantial number of small entities.
We have determined, for the above reasons, that it will not affect a
substantial number of small entities. Therefore, we are certifying that
the designation of critical habitat for the Appalachian elktoe will not
have a significant economic impact on a substantial number of small
entities. Accordingly, a regulatory flexibility analysis is not
required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
OMB's Office of Information and Regulatory Affairs has determined
that this rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This final designation of
critical habitat: (1) Does not have an annual effect on the economy of
$100 million; (2) will not cause a major increase in costs or prices
for consumers; individual industries; Federal, State, or local
governmental agencies; or geographic regions; and (3) does not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based enterprises to
compete with foreign-based enterprises. As discussed in the economic
analysis, future potential section 7 costs in areas that we are
designating as critical habitat for the Appalachian elktoe are
anticipated to have a total estimated economic effect ranging between
approximately $1.943 and $5.121 million over a 10-year period.
Furthermore, because all the areas that we are designating as critical
habitat in this rule currently support populations of the Appalachian
elktoe, we would consult on the same range of activities in the absence
of this critical habitat designation, and the above costs are most
appropriately attributable to the section 7 jeopardy provisions of the
Act due to the listing of the species (see Effects of Critical Habitat
section).
Proposed and final rules designating critical habitat for listed
species are issued under the authority of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.). Competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises will not be
affected by the final rule designating critical habitat for this
species. Therefore, we anticipate that this final rule will not place
significant additional burdens on any entity.
[[Page 61032]]
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211, which
applies to ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' In order to ensure that Federal
agencies ``appropriately weigh and consider the effects of the Federal
Government's regulations on the supply, distribution, and use of
energy,'' the President has directed agencies to prepare and submit to
the OMB's Office of Information and Regulatory Affairs a ``Statement of
Energy Effects'' for their ``significant energy actions.'' The OMB has
provided guidance for implementing this executive order that outlines
nine outcomes that may constitute ``a significant adverse effect'' when
compared without the regulatory action under consideration:
Reductions in crude oil supply in excess of 10,000 barrels per day;
Reductions in fuel production in excess of 4,000 barrels per day;
Reductions in coal production in excess of 5 million tons per year;
Reductions in natural gas production in excess of 25 million mcf
per day;
Reductions in electricity production in excess of 1 billion
kilowatts per year or in excess of 500 megawatts of installed capacity;
Increases in energy use required by the regulatory action that
exceed the thresholds above;
Increases in the cost of energy production in excess of one
percent;
Increases in the cost of energy distribution in excess of one
percent; or
Other similarly adverse outcomes.
There are a total of eight hydropower projects located within,
upstream, and downstream of critical habitat Units 1, 2, and 3.
Accordingly, two of the criteria for assessing potential significant
effect to energy supply, distribution, or use are relevant to this
analysis and were assessed in the final addendum to the economic
analysis--(1) reductions in electricity production in excess of 1
billion kilowatts per year or in excess of 500 megawatts of installed
capacity and--(2) increases in the cost of energy production in excess
of one percent.
Nantahala Power and Light, a subsidiary of Duke Power, owns one
hydropower project--the Franklin Dam, on the main stem of the Little
Tennessee River, immediately upstream of Unit 1--and four projects
within the Tuckasegee River system--the Dillsboro Dam that occurs
within Unit 2, the Bryson Dam that occurs downstream on Unit 2, and the
West Fork Project and East Fork Project (the East Fork and West Fork
hydropower projects include multiple hydropower dams) that occur
upstream of Unit 2. Tapoco-APGI owns two dams--the Santeetlah Dam on
the Cheoah River, immediately upstream of Unit 3, and the Cheoah Dam on
the Little Tennessee River, located downstream of Unit 3. In addition,
the TVA operates the Fontana Dam on the Little Tennessee River
downstream of Unit 1.
The combined installed capacity for all eight hydropower projects
is 445.48 MW (445,480 KW). Therefore, even when viewed in the context
of a worst-case scenario, in which implementation of section 7 of the
Act results in significant operational changes of all eight hydropower
projects, the total capacity is 445.48 MW (445,480 KW) of
hydroelectricity, so the impact on these hydropower facilities could
not exceed the 500 MW (500,000 KW) threshold.
In order to determine whether implementation of section 7 of the
Act will result in a significant increase in the cost of energy
production, this analysis considered the maximum possible increase in
energy production costs under the same scenario above where the
implementation of section 7 causes significant operational changes to
all eight hydropower facilities. Natural gas represents the next
cheapest fuel source for generating electricity (hydropower is the
cheapest), but also accounts for the smallest portion of electricity
production, at roughly two percent. Nuclear-generated electricity
accounts for approximately 33 percent of overall generation and
represents the most expensive fuel source. Electricity generated by
coal-fired facilities makes up the largest portion of electricity
generated in North Carolina and Tennessee, accounting for approximately
66 percent of overall production. Accordingly, professional judgment
suggests that coal would be the likely fuel substitute to make up for
any decrease in hydroelectric energy production. The final addendum to
the economic analysis determined that if even all current hydroelectric
energy production from the eight hydroelectric projects were to cease,
coal-fired facilities would experience approximately $72,244,000 in
additional costs to meet this energy demand, which represents
approximately 0.70 percent increase in production costs.
Therefore, even in the worst case scenario, implementation of
section 7 for the Appalachian elktoe will not result in a ``reduction
in electricity production in excess of 500 megawatts of installed
capacity'' or an ``increase in the cost of energy production in excess
of one percent.'' Consequently, this rule will not have a ``significant
adverse effect'' on the supply, distribution, or use of energy, and no
``Statement of Energy Effects'' is required. 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.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any programs using
Federal funds, permits, or other authorized activities must ensure that
their actions will not adversely affect the critical habitat. However,
as discussed above, these actions are currently subject to equivalent
restrictions through the listing protections of the species, and no
further restrictions are anticipated in areas of occupied designated
critical habitat.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical habitat imposes no obligations on State or local governments.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the takings implications of designating
approximately 148.4 km (92.2 mi) of streams in North Carolina and
Tennessee in six units of critical habitat for the Appalachian elktoe.
Based on our consideration of the economic analysis and other pertinent
information, this rule does not have significant takings implications,
and a takings implication assessment is not required. This rule will
not ``take'' private property. The only regulatory consequence of the
designation of critical habitat is that Federal agencies must consult
with us before undertaking actions, issuing permits, or providing
funding for activities that might destroy or adversely modify critical
habitat. This regulation has no regulatory impact on a private
landowner who takes action on his or her land that does not involve
Federal funding or authorization. Because the Appalachian elktoe is
already listed as endangered, Federal agencies are already required to
consult with us on any of their actions that are likely to adversely
affect the species and to ensure that their actions do not jeopardize
the species' continued existence regardless of whether critical habitat
has been designated. Therefore,
[[Page 61033]]
we do not believe the designation of critical habitat for the
Appalachian elktoe will result in any significant additional regulatory
burden on landowners or affect the use of property, whether private or
Federal.
Furthermore, only those activities with Federal involvement that
are likely to adversely affect a listed species or result in the
destruction or adverse modification of critical habitat require
consultation under section 7 of the Act. Landowners proposing or
carrying out activities, even with Federal involvement, are not
affected by the consultation requirements under section 7 of the Act,
or any other provisions of the Act, if their activities are not in any
way adversely affecting a listed species or designated critical
habitat.
This rule will not increase or decrease the current restrictions
concerning taking of the Appalachian elktoe on private property as
defined in section 9 of the Act and its implementing regulations (50
CFR 17.31). Additionally, critical habitat designation does not
preclude the development of habitat conservation plans and the issuance
of incidental take permits. Any landowner in areas that are included in
the designated critical habitat will continue to have the opportunity
to use his or her property in ways consistent with the survival of the
Appalachian elktoe.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism Assessment is not
required. In keeping with Department of the Interior policy, we
requested information from, and coordinated the development of this
critical habitat designation with, appropriate State natural resources
agencies in North Carolina and Tennessee. We will continue to
coordinate any future changes in the designation of critical habitat
for the Appalachian elktoe with the appropriate State agencies. The
designation of critical habitat for the Appalachian elktoe imposes few,
if any, additional restrictions to those currently in place and
therefore has little incremental impact on State and local governments
and their activities. The designation may provide some benefit to these
governments in that the areas essential to the conservation of the
species are more clearly defined and the primary constituent elements
of the habitat necessary to the conservation of the species are
specifically identified. While this does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning rather than having to wait for case-
by-case section 7 consultations to occur.
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated critical
habitat in accordance with the provisions of the Endangered Species Act
of 1973, as amended. The rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs that are
essential for the conservation of the Appalachian elktoe. We have made
every effort to ensure that the final determination contains no
drafting errors, provides clear standards, simplifies procedures,
reduces burdens, and is clearly written so that the risk of litigation
is minimized.
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 OMB under the Paperwork Reduction Act. This
rule will not impose new recordkeeping or reporting requirements on
State or local governments, individuals, businesses, or organizations.
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
We have determined that we do not need to prepare an Environmental
Assessment or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Endangered Species
Act of 1973, as amended. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). This determination does not constitute a major Federal
action significantly affecting the quality of the human environment.
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, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
tribes on a government-to-government basis. The Cherokee Indian
Reservation occurs in the watershed of the reach of the Tuckasegee
River (Unit 2) that we are designating as critical habitat for the
Appalachian elktoe, and The Eastern Band of Cherokee Indians owns a
small parcel of land bordering the subject reach. We have coordinated
the designation of critical habitat for the Appalachian elktoe with
representatives of The Eastern Band of Cherokee Indians and have
assessed potential effects of the designation to tribal resources.
We have consulted with the Bureau of Indian Affairs in the recent
past regarding a timber management plan for the Cherokee Indian
Reservation. The project plans included the maintenance of forested
buffers and measures to control sediment and erosion in order to
protect aquatic resources, including the Appalachian elktoe and its
habitat, and we concurred that the plan was not likely to adversely
affect the Appalachian elktoe. Because potential effects to the
species' habitat were addressed, we do not believe reinitiation of
consultation due to the designation of critical habitat is required.
In addition, it is expected that the EPA may initiate a section 7
consultation in the future regarding the issuance of NPDES permits for
The Eastern Band of Cherokee Indians (the EPA, rather than the State of
North Carolina, issues NPDES permits for discharges on the Cherokee
Indian Reservation). However, we do not anticipate an adverse impact to
the elktoe or its designated critical habitat because The Eastern Band
of Cherokee Indians' wastewater treatment facility utilizes UV
treatment (rather than chlorine) and the discharge from their
wastewater treatment facility is located on a tributary stream that is
separated (by an impoundment) from the reach of the Tuckasegee River
that is designated as critical habitat.
Furthermore, as discussed elsewhere in this rule and in the
economic analysis of the potential effects of the designation of
critical habitat for the Appalachian elktoe, we do not believe the
designation of critical habitat will have any additional regulatory
effect on activities that require Federal permits or any other Federal
actions or permitted activities beyond what is already required through
the listing of the species. In view of this, The Eastern Band of
Cherokee Indians stated, by
[[Page 61034]]
letter of July 2, 2002, that they did not object to the designation of
critical habitat for the Appalachian elktoe.
References Cited
A complete list of all references cited in this rule is available
upon request from the Asheville Field Office (see ADDRESSES).
Author
The primary author of this document is John A. Fridell, Asheville
Field Office (see ADDRESSES ).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for the ``Elktoe,
Appalachian'' under ``CLAMS'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------------- population where Critical Special
Historical range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Elktoe, Appalachian................. Alasmidonta raveneliana U.S.A. (NC, TN)....... Entire E 563 17.95(f) NA.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(f) by adding critical habitat for the
Appalachian elktoe (Alasmidonta raveneliana) in the same alphabetical
order as the species occurs in 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and snails.
* * * * *
Appalachian elktoe (Alasmidonta raveneliana)
(1) Critical habitat units are described below and depicted in the
maps that follow, with the lateral extent of each designated unit
bounded by the ordinary high-water line.
(i) Index map follows:
[[Page 61035]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.007
(2) Unit 1.
(i) Macon County and Swain County, NC--the main stem of the Little
Tennessee River (Tennessee River system), from the Lake Emory Dam at
Franklin, Macon County, NC, downstream to the backwaters of Fontana
Reservoir in Swain County, NC.
(3) Unit 2.
(i) Jackson County and Swain County, NC--the main stem of the
Tuckasegee River (Little Tennessee River system), from the N.C. State
Route 1002 Bridge in Cullowhee, Jackson County, NC, downstream to the
N.C. Highway 19 Bridge, north of Bryson City, Swain County, NC.
(ii) Map of Unit 1 and Unit 2 follows:
[[Page 61036]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.008
(4) Unit 3.
(i) Graham County, NC--the main stem of the Cheoah River (Little
Tennessee River system), from the Santeetlah Dam, downstream to its
confluence with the Little Tennessee River.
(ii) Map of Unit 3 follows:
[[Page 61037]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.009
(5) Unit 4.
(i) Transylvania County, NC--the main stem of the Little River
(French Broad River system), from the Cascade Lake Power Plant,
downstream to its confluence with the French Broad River.
(ii) Map of Unit 4 follows:
[[Page 61038]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.010
(6) Unit 5.
(i) Haywood County, NC--the main stem of the West Fork Pigeon River
(French Broad River system), from the confluence of the Little East
Fork Pigeon River, downstream to the confluence of the East Fork Pigeon
River, and the main stem of the Pigeon River, from the confluence of
the West Fork Pigeon River and the East Fork Pigeon River, downstream
to the N.C. Highway 215 Bridge crossing, south of Canton, NC.
(ii) Map of Unit 5 follows:
[[Page 61039]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.011
(7) Unit 6.
(i) Yancey County and Mitchell County, NC, and Unicoi County, TN--
the main stem of the North Toe River, Yancey and Mitchell Counties, NC,
from the confluence of Big Crabtree Creek, downstream to the confluence
of the South Toe River; the main stem of the South Toe River, Yancey
County, NC, from the N.C. State Route 1152 Bridge, downstream to its
confluence with the North Toe River; the main stem of the Toe River,
Yancey and Mitchell Counties, NC, from the confluence of the North Toe
River and the South Toe River, downstream to the confluence of the Cane
River; the main stem of the Cane River, Yancey County, NC, from the
N.C. State Route 1381 Bridge, downstream to its confluence with the Toe
River; and the main stem of the Nolichucky River from the confluence of
the Toe River and the Cane River in Yancey County and Mitchell County,
NC, downstream to the U.S. Highway 23/19W Bridge southwest of Erwin,
Unicoi County, TN.
(ii) Map of Unit 6 follows:
[[Page 61040]]
[GRAPHIC] [TIFF OMITTED] TR27SE02.012
(8) Within these areas, the primary constituent elements include:
(i) Permanent, flowing, cool, clean water;
(ii) Geomorphically stable stream channels and banks;
(iii) Pool, riffle, and run sequences within the channel;
(iv) Stable sand, gravel, cobble, boulder, and bedrock substrates
with no more than low amounts of fine sediment;
(v) Moderate to high stream gradient;
(vi) Periodic natural flooding; and
(vii) Fish hosts, with adequate living, foraging, and spawning
areas for them.
* * * * *
Dated: September 18, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-24362 Filed 9-26-02; 8:45 am]
BILLING CODE 4310-55-P