[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Rules and Regulations]
[Pages 59555-59620]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23357]
[[Page 59555]]
Vol. 78
Thursday,
No. 187
September 26, 2013
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Fluted Kidneyshell and Slabside Pearlymussel; Final
Rule
Federal Register / Vol. 78 , No. 187 / Thursday, September 26, 2013 /
Rules and Regulations
[[Page 59556]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0026; 4500030113]
RIN 1018-AZ48
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Fluted Kidneyshell and Slabside Pearlymussel
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the fluted kidneyshell (Ptychobranchus subtentum)
and slabside pearlymussel (Pleuronaia dolabelloides) under the
Endangered Species Act of 1973, as amended (Act). These two species are
endemic to portions of the Cumberland and Tennessee River systems of
Alabama, Kentucky, Mississippi, Tennessee, and Virginia. In total,
approximately 2,218 river kilometers (1,380 river miles) in Alabama,
Kentucky, Mississippi, Tennessee, and Virginia fall within the
boundaries of the critical habitat designation. The effect of this
regulation is to designate critical habitat for the fluted kidneyshell
and slabside pearlymussel under the Act for the conservation of the
species.
DATES: This rule is effective on October 28, 2013.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at http://www.fws.gov/cookeville. Comments and
materials we received, as well as supporting documentation we used in
preparing this final rule, are available for public inspection at
http://www.regulations.gov. All of the comments, materials, and
documentation that we considered in this rulemaking are available by
appointment, during normal business hours, at: U.S. Fish and Wildlife
Service, Tennessee Ecological Services Field Office, 446 Neal Street,
Cookeville, TN 38501; 931-528-6481 (telephone); 931-528-7075
(facsimile).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R4-ES-2013-0026 and at the Tennessee Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional
tools or supporting information that we developed for this critical
habitat designation will be available at the Web sites and field office
address given above and may also be included in the preamble of this
rule.
FOR FURTHER INFORMATION CONTACT: Mary Jennings, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN 38501; telephone 931-528-6481;
facsimile 931-528-7075. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a final rule to designate
critical habitat for the fluted kidneyshell (Ptychobranchus subtentum)
and slabside pearlymussel (Pleuronaia dolabelloides). Under the
Endangered Species Act (Act), when we determine that a species is
endangered or threatened we must designate critical habitat to the
maximum extent prudent and determinable. Designations of critical
habitat can only be completed by issuing a rule.
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat.
The areas we are designating in this rule constitute our current
best assessment of the areas that meet the definition of critical
habitat for the fluted kidneyshell and slabside pearlymussel. Here we
are designating approximately 2,218 river kilometers (rkm) (1,380 river
miles (rmi)) of stream channel in five States as critical habitat. For
the fluted kidneyshell, we are designating 24 units covering
approximately 1,899 rkm (1,181 rmi) of critical habitat in Limestone
County, Alabama; Jackson, Laurel, McCreary, Pulaski, Rockcastle, and
Wayne Counties, Kentucky; Bedford, Claiborne, Cocke, Fentress,
Franklin, Giles, Grainger, Greene, Hamblen, Hancock, Hickman,
Humphreys, Jefferson, Knox, Lincoln, Marshall, Maury, Moore, Morgan,
Overton, Perry, Pickett, Polk, Scott, and Sevier Counties, Tennessee;
and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington, and Wythe
Counties, Virginia. For the slabside pearlymussel, we are designating
13 units covering approximately 1,562 rkm (970 rmi) of critical habitat
in Colbert, Jackson, Limestone, Madison, and Marshall Counties,
Alabama; Tishomingo County, Mississippi; Bedford, Bledsoe, Claiborne,
Cocke, Franklin, Giles, Greene, Hamblen, Hancock, Hickman, Humphreys,
Lincoln, Marion, Marshall, Maury, Moore, Perry, Polk, and Sequatchie
Counties, Tennessee; and Bland, Lee, Russell, Scott, Smyth, Tazewell,
Washington, and Wythe Counties, Virginia.
This rule consists of a final rule designating critical habitat for
the fluted kidneyshell and slabside pearlymussel. Elsewhere in today's
Federal Register, we list both species as endangered under the Act.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We requested opinions from eight
knowledgeable individuals with scientific expertise to review our
technical assumptions and analysis, and to determine whether or not we
used the best available information. Only one of the two peer reviewers
who responded commented specifically on the critical habitat
designation. This peer reviewer generally concurred with our methods
and conclusions, and provided additional information, clarifications,
and suggestions to improve this final rule. Information we received
from peer review is incorporated in this final designation. We received
three comments from the public regarding the proposed critical habitat
designation and the draft economic analysis (DEA). We addressed these
comments and incorporated public input into this final designation.
Previous Federal Actions
We proposed listing the fluted kidneyshell and slabside
pearlymussel as endangered under the Act with critical habitat on
October 4, 2012 (77 FR 60804), and announced the availability of a DEA
on April 29, 2013 (78 FR 25041). The final listing rule can be found
elsewhere in today's Federal Register. All other previous Federal
actions for these species are described in the proposed rule (77 FR
60804).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the fluted kidneyshell and slabside
pearlymussel during two comment periods. The first comment period
associated with the publication of the proposed rule (77 FR
[[Page 59557]]
60804) opened on October 4, 2012, and closed on December 3, 2012. We
also requested comments on the proposed critical habitat designation
and associated DEA during a comment period that opened on April 29,
2013, and closed on May 29, 2013. We received one request for a public
hearing. We held a public hearing in Abingdon, Virginia, on May 14,
2013. We also contacted appropriate Federal, State, and local agencies;
scientific experts and organizations; and other interested parties and
invited them to comment on the proposal. Newspaper notices inviting
general public comment were published in newspapers covering all
affected counties in Alabama, Kentucky, Mississippi, Tennessee, and
Virginia.
During the first comment period, we received three comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received one comment letter addressing
the proposed critical habitat designation or the DEA. During the May
14, 2013, public hearing, one organization made comments on the
proposed designation of critical habitat and DEA. All substantive
information provided during both comment periods and the public hearing
has either been incorporated directly into this final determination or
is addressed below.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from eight knowledgeable
individuals with scientific expertise that included familiarity with
the two mussels and their habitats, biological needs, and threats. We
received responses from two of the peer reviewers, but only one of them
commented specifically on the proposed critical habitat designation.
We reviewed all comments we received from the peer reviewer for
substantive issues and new information regarding the proposed
designation of critical habitat for the two mussels. Peer reviewer
comments are addressed in Comments 1, 2, and 3 below; addressed in the
Summary of Changes from Proposed Rule section; and incorporated into
the final rule as appropriate.
(1) Comment: The Special Management Considerations or Protection
section fails to list the Tennessee Wildlife Resources Agency (TWRA)
mussel sanctuaries located in the Powell, Clinch, Duck, and Hiwassee
Rivers as effective conservation measures. The mussel sanctuaries
prohibit the taking of mollusks by any means at all times and prohibit
the degradation or destruction of aquatic habitat.
Our Response: We agree that the TWRA mussel sanctuaries are
protective of the fluted kidneyshell and slabside pearlymussel, and we
have incorporated this into the Special Management Considerations or
Protection section of this final rule.
(2) Comment: In several critical habitat unit descriptions, the
host fish species for the slabside pearlymussel are identified but not
the host fish for the fluted kidneyshell. Host fish for the fluted
kidneyshell are also found in these rivers (Nolichucky, Hiwassee, Elk,
and Buffalo Rivers).
Our Response: We agree the host fishes for the fluted kidneyshell
are found in the Nolichucky (FK18), Hiwassee (FK21), Elk (FK22), and
Buffalo (FK24) Rivers. However, under the Act (16 U.S.C. 1531 et seq.)
and its implementing regulations, we are only required to identify the
physical and biological features (PBFs) essential to the conservation
of species in areas occupied at the time of listing, focusing on the
features' primary constituent elements (PCEs). Under the second prong
of the Act's definition of critical habitat, we can designate critical
habitat in areas outside the geographical area occupied by the species
at the time it is listed (i.e., unoccupied units), upon a determination
that such areas are essential for the conservation of the species.
Because units FK21, FK22, and FK24 are unoccupied by the fluted
kidneyshell at the time of listing, the presence of the host fishes (a
PCE for the fluted kidneyshell) was not considered in the determination
of those units and therefore not identified in the unit descriptions.
The critical habitat designation for these units is based upon the
determination that they are essential for the conservation of the
species. However, Unit FK18 has been changed to occupied based on
information provided by peer reviewers (see next comment), and the
presence of fish hosts for the fluted kidneyshell has been added to the
description of Unit FK18 (see Final Critical Habitat Designation,
below).
(3) Comment: The Nolichucky River, Tennessee, Unit FK18 for the
fluted kidneyshell, has been proposed as unoccupied critical habitat
even though the site retains large numbers of reintroduced adults from
stocking efforts over the past 8 years. However, the Duck River has
been proposed as occupied based on similar reintroduction efforts.
Explain this inconsistency.
Our Response: In the Duck River, the fluted kidneyshell population
is a result of a successful reintroduction program implemented by TWRA
and other conservation partners, resulting in the recruitment of the
species in the river. In 2010, six individuals were collected during a
quantitative survey at Lillard's Mill in the Duck River, confirming
some level of survival and persistence of the reintroduced population
(Hubbs et al. 2011, p. 18).
We had no information at the time of the proposed rule to show that
monitoring efforts in the Nolichucky River had confirmed the survival
and persistence of reintroduced fluted kidneyshell. Since that time,
Hubbs (2012, pers. comm.) confirmed that the Nolichucky River retains a
large number of adult individuals. Therefore, we have changed the
designation of critical habitat in the Nolichucky River from unoccupied
to occupied and revised the designation accordingly.
Federal Agency Comments
(4) Comment: The U.S. Department of Agriculture, Natural Resources
Conservation Service (NRCS), in Kentucky, would like to explore
opportunities to focus conservation practices including the Wildlife
Habitat Incentives Program (WHIP) and the Environmental Quality
Incentives Program on water quality improvement and restoration in any
areas designated as critical habitat for the fluted kidneyshell and
other aquatic organisms.
Our Response: The Service concurs that Farm Bill practices
implemented by the NRCS can improve water quality and benefit rare
aquatic species. The Service will continue to work with NRCS to
identify aquatic habitats for rare aquatic species that would benefit
from conservation practices on private lands. One example of a
successful partnership between NRCS and the Service's Kentucky Field
Office is the Mill Branch Stream Restoration Project in which 700
meters (m) (2,300 feet (ft)) of stream was completely restored and a
fish passage installed to open an additional 1,524 to 2,438 m (5,000 to
8,000 ft) of stream for the federally threatened blackside dace
(Phoxinus [=Chrosomus] cumberlandensis) in Knox County, Kentucky. This
project was completed through the WHIP program.
Public Comments
(5) Comment: The Service has failed to prepare a DEA or to announce
when the public will have the opportunity to comment on that analysis,
hindering the public's ability to meaningfully comment on the complete
picture of factors impacting the Service's
[[Page 59558]]
determination and whether or not the Service has complied with all
legal obligations that should shape the final rule.
Our Response: We proposed listing the fluted kidneyshell and
slabside pearlymussel as endangered under the Act with critical habitat
(77 FR 60804) on October 4, 2012, and announced the availability of a
DEA (78 FR 25041) on April 29, 2013. Publication of the DEA after the
proposed critical habitat rule is published has been standard practice
with critical habitat rules. The Service reopened the comment period
for 30 days (through May 29, 2013) to allow comments on the DEA.
Additionally, we held a public hearing in Abingdon, Virginia, on May
14, 2013.
(6) Comment: During the public hearing, one commenter stated that
the DEA is not based on sufficient data and many of the aspects of it
appear to be incorrect. The methodology used to reach the estimates is
poorly explained and the discount rate selected appears to be too high.
The same commenter also stated: ``The draft economic analysis did not
quantify, quote, indirect economic impacts associated with time delays
and a misperception of the regulatory burden imposed by the proposed
critical habitat designation, end quote, because of, quote, a lack of
available data, end quote.''
Our Reponse: Our economic analysis is based on the best available
data and applies standard methods for assessing the impacts of critical
habitat designation. The Office of Management and Budget (OMB)
recommends that a 7 percent discount rate be applied as a base case for
regulatory analysis (OMB 2003). The DEA and final economic analysis
(FEA) also report results using a discount rate of 0 percent and 3
percent for comparison.
There were insufficient data to quantify and monetize indirect
economic impacts of the critical habitat designation. These are
addressed qualitatively in the analysis to allow the Service to
consider these impacts in our determination. Based on our previous data
collection, we have included additional information regarding time
delays associated with section 7 consultations in the FEA.
(7) Comment: During the public hearing, one commenter stated there
is no indication in the DEA that the authors consulted with the
Virginia Division of Mines, Minerals, and Energy, or with any other
coal companies concerning the direct and indirect economic impact of
the proposed critical habitat designation on the coal mining industry.
Our Response: The Virginia Division of Mines, Minerals, and Energy
declined to provide information for the economic analysis. Phone and
email requests for information from the Virginia Coal Association,
Virginia Mining Association, and Eastern Coal Council were not
returned.
(8) Comment: The Service published a proposed rule that had not
undergone peer review, thereby not necessarily reflecting sound
science, as required by section 4 of the Act and as required under
section 515(b)(2)(A) of the Information Quality Act. Rather than
conducting peer review prior to publication of the proposed rule, which
would allow the public to view a fully scientifically vetted proposal,
the Service opted to conduct peer review contemporaneously with the
public comment period. Additionally, there is no indication that the
public will have an opportunity to review and comment on the rule as
informed by peer review, which is troubling due to the Service relying
on decades-old data (e.g., concluding a population to be extant if
found post-1980).
Our Response: In accordance with our peer review policy published
on July 1, 1994 (59 FR 34270), we solicited expert opinion from eight
knowledgeable individuals with scientific expertise that included
familiarity with the two mussels and their habitats, biological needs,
and threats. In keeping with our policy, we contacted these peer
reviewers after the proposed rule was published in the Federal
Register. We received responses from two of the peer reviewers. We
posted all of the comments we received on the October 4, 2012, proposal
to designate critical habitat for the fluted kidneyshell and slabside
pearlymussel (77 FR 60804), as well as the document making available
the DEA for that proposed action (78 FR 25041; April 29, 2013), on the
Internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2013-
0026.
We reviewed all comments we received from the peer reviewers and
others for substantive issues and new information regarding the
proposed designation of critical habitat for the two mussels. The peer
reviewers generally concurred with our conclusions and provided
additional information on taxonomic classification, life history,
current distribution, and threats. Peer reviewer comments are addressed
in the Peer Reviewer Comments section above, addressed in the Summary
of Changes from Proposed Rule section below, and incorporated into this
final rule as appropriate.
(9) Comment: The proposed rule would impose significant and
unwarranted regulatory burdens with regard to consultation requirements
under section 7 of the Act as they apply to designated critical
habitat. Consultation in unoccupied habitats, where there are no
specimens of the fluted kidneyshell or slabside pearlymussel, would be
unduly burdensome, unwarranted, and unlikely to foster support for the
conservation of these species.
Our Response: For the most part, consultation requirements under
section 7 of the Act already exist for other listed species throughout
the critical habitat designation for the fluted kidneyshell and
slabside pearlymussel. Eleven critical habitat units proposed for both
the fluted kidneyshell and slabside pearlymussel are currently
designated as critical habitat under the Act for other federally listed
species. All of the critical habitat units being designated for the
fluted kidneyshell and slabside pearlymussel, including the unoccupied
units, contain historical or extant records of federally listed or
proposed species, except for the Wolf River and Town Branch and West
Fork Obey River, Tennessee. Specifically:
Some streams we are designating as critical habitat that
are unoccupied by at least one of the species are occupied either by
the other species or by another federally listed mussel species. For
instance, the Buffalo River Unit (Unit FK24 and SP13) is unoccupied
critical habitat for the fluted kidneyshell, but is occupied critical
habitat for the slabside pearlymussel.
Some streams we are designating as critical habitat for
the fluted kidneyshell and slabside pearlymussel have not been
previously designated as critical habitat for other species, but other
federally listed species occur in these streams. For instance, the
Holston River (Unit FK19) and French Broad River (Unit FK20), which we
are designating as unoccupied critical habitat for the fluted
kidneyshell, contain other federally listed species such as the pink
mucket (Lampsilis abrupta).
The Service is designating as critical habitat streams that are
outside the geographical area occupied by the species because we have
determined that: (1) Such areas are essential for the conservation of
the species, and (2) designation of only occupied habitats is not
sufficient to conserve these two species. Unoccupied habitats provide
additional habitat for population expansion and promotion of genetic
diversity, which will decrease the risk of extinction for these two
species. As indicated above, the majority of these habitats already
possess listed species or their critical habitat, and therefore
[[Page 59559]]
Federal actions in those areas would require consultation under the
Act, regardless of whether or not critical habitat was designated for
these two mussels.
Summary of Changes From Proposed Rule
As a result of the comments we received during the public comment
periods (see above), we made the following changes to the final
critical habitat rule:
(1) We added TWRA mussel sanctuary information to the Special
Management Considerations or Protection section.
(2) We changed Unit FK18 (Nolichucky River) from unoccupied to
occupied for the fluted kidneyshell to reflect the successful
reintroduction program implemented by TWRA and other conservation
partners.
(3) In Table 4, we added pink mucket to the list of species that
occur in the Holston River (Unit FK19).
(4) We corrected the description for Unit FK19 to reflect that
slabside pearlymussel and its host fish are known from the Holston
River (not the French Broad River).
(5) We revised the description of Unit FK24 and SP13 (Buffalo
River). The channel is not stable, as we stated in the proposed rule,
but has destabilized substrates.
While preparing the final critical habitat rule, we also made the
following corrections and modifications to Table 3 (Table 5 in the
proposed rule):
(1) We corrected the length of overlap for rabbitsfoot (Quadrula
cylindrica cylindrica) in Unit SP9 (Paint Rock River), Unit SP11 (Bear
Creek), and Unit FK23 and SP12 (Duck River).
(2) We calculated total overlap lengths for critical habitat units
and nonessential experimental populations (NEPs) separately.
(3) We added a note to clarify how the total overlap lengths were
calculated.
In Table 4 (Table 6 in the proposed rule), we made the following
corrections to the list of species that occur in critical habitat
units:
(1) We added rough rabbitsfoot (Q. c. strigillata) to Unit FK10
(Indian Creek).
(2) We deleted tan riffleshell (Epioblasma florentina walkeri (=E.
walkeri)) and white wartyback (Plethobasus cicatricosus) from Unit FK17
and SP5 (Powell River).
(3) We added oyster mussel (E. capsaeformis) to and deleted pink
mucket from Unit FK18 and SP6 (Nolichucky River).
(4) We added birdwing pearlymussel (Lemiox rimosus) and cracking
pearlymussel (Hemistena lata) to Unit FK20 (French Broad River).
(5) We added oyster rmussel to Unit SP9 (Paint Rock River).
(6) We added Alabama lampmussel (Lampsilis virescens) and
Cumberlandian combshell (E. brevidens) to Unit SP11 (Bear Creek) and
deleted finerayed pigtoe (Fusconaia cuneolus) from the same unit.
(7) We deleted orangefoot pimpleback (Plethobasus cooperianus) from
Unit FK23 and SP12 (Duck River).
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use,
and the use of, all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species, and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R.
[[Page 59560]]
5658)), and our associated Information Quality Guidelines, provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include articles in peer-reviewed
journals, conservation plans developed by States and counties,
scientific status surveys and studies, biological assessments, or other
unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual or the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of these
species. 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 (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and the regulations at 50 CFR 424.12, in determining which areas within
the geographical area occupied at the time of listing to propose as
critical habitat, we consider the physical and biological features
(PBFs) essential to the conservation of the species that may require
special management considerations or protection. These may include, but
are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific PBFs required for the fluted kidneyshell and
slabside pearlymussel based on their biological needs. Little is known
of the specific habitat requirements of these two mussel species other
than they require flowing water, stable stream channels, adequate water
quality, and fish hosts for development of larva to metamorphose into
juvenile mussels. To identify the physical and biological needs of the
species, we have relied on current conditions at locations where the
species survive, the limited information available on these two mussels
and their close relatives, and factors associated with the decline and
extirpation of these and other mussels from portions of the Cumberland
and Tennessee River systems. Additional information is located in the
final listing rule, which can be found elsewhere in today's Federal
Register. We have determined that the fluted kidneyshell and slabside
pearlymussel require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
The fluted kidneyshell and slabside pearlymussel are historically
associated with the Cumberland and Tennessee River drainages in
Alabama, Kentucky, Mississippi, Tennessee, and Virginia. Mussels
generally live embedded in the bottom of stable streams and other
bodies of water, and within riffle areas of sufficient current
velocities to remove finer sediments and provide well-oxygenated
waters. The fluted kidneyshell is primarily a medium-sized creek to
large river species, inhabiting sand and gravel substrates in
relatively shallow riffles and shoals with moderate to swift current
(Parmalee and Bogan 1998, p. 205). In comparison to co-occurring
species, the fluted kidneyshell demonstrates strong habitat
specificity. It is associated with faster flows, greater baseflow shear
stress, and low substrate embeddedness (Ostby 2005, pp. 51, 142-143).
The slabside pearlymussel is primarily a large creek to large river
species, inhabiting sand, fine gravel, and cobble substrates in
relatively shallow riffles and shoals with moderate current (Parmalee
and Bogan 1998, p. 152).
Similar to other mussels, fluted kidneyshell and slabside
pearlymussel are dependent on areas with flow refuges where shear
stress is relatively low, although the fluted kidneyshell is more
tolerant of shear stress than other species (Layzer and Madison 1995,
p. 341; Strayer 1999, pp. 468 and 472; Hastie et al. 2001, pp. 111-
114). Flow refuges conceivably allow relatively immobile mussels such
as the fluted kidneyshell and slabside pearlymussel to remain in the
same general location throughout their entire lives.
Natural river or creek channel stability is achieved by allowing
the river or creek to develop a stable dimension, pattern, and profile
such that, over time, channel features are maintained and the river or
creek system neither aggrades nor degrades. Channel instability occurs
when the scouring process leads to degradation or excessive sediment
deposition results in aggradation. Stable rivers and creeks
consistently transport their sediment load, both in size and type,
associated with local deposition and scour (Rosgen 1996, p. 1-3).
Sedimentation has been determined to be a major factor in habitat
destruction, resulting in corresponding shifts in mussel fauna (Brim
Box and Mossa 1999, p. 102). Stable stream bottom substrates not only
provide space for populations of these mussel species, but also provide
cover and shelter and sites for breeding, reproduction, and growth of
offspring.
Habitat conditions described in the previous paragraphs provide
space, cover, shelter, and sites for breeding, reproduction, and growth
of offspring for the fluted kidneyshell and slabside pearlymussel.
These habitats are dynamic and are formed and maintained by water
quantity, channel features (dimension, pattern, and profile), and
sediment input to the system through periodic flooding, which maintain
connectivity and interaction with the flood plain.
[[Page 59561]]
Changes in one or more of these parameters can result in channel
degradation or aggradation, with serious effects to mussels.
Therefore, based on the information above, we identify riffles of
large creeks and rivers with sand, gravel, and cobble substrates; areas
of moderate to high amount of flow, but with refugia of low shear
stress; stream channel stability; and floodplain connectivity to be
PBFs for both of these species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Mussels, such as these two species, siphon water into their shells
and across four gills that are specialized for respiration, food
collection, and brooding larvae in females. Food items include detritus
(disintegrated organic debris), algae, diatoms, and bacteria (Strayer
et al. 2004, pp. 430-431). Encysted glochidia are nourished by their
fish hosts and feed for a period of one week to several months.
Nutrient uptake by glochidia is not well understood, but probably
occurs through the microvillae of the mantle, an umbilical cord-like
structure that is used to extract nutrients as glochidia are attached
to gill filiments of host fish. For the first several months, the gills
of juvenile mussels are rudimentary and generally incapable of
filtering particles (Watters 2007, p. 56). To extract bacteria, algae,
and detritus from the sediment, juvenile mussels partially employ pedal
(foot) feeding and may filter interstitial (pore) water (Yeager et al.
1994, pp. 217-221). Adult mussels primarily filter feed from the
ambient water column, but can also obtain their food by deposit
feeding, pulling in food from the sediment and its interstitial water
and pedal feeding directly from the sediment (Yeager et al. 1994, pp.
217-221; Vaughn and Hakenkamp 2001, pp. 1432-1438). Food availability
and quality for the fluted kidneyshell and slabside pearlymussel in
their habitats are affected by habitat stability, floodplain
connectivity, flow, and water and sediment quality. Excessive
sedimentation has been shown to impair the filter feeding ability of
mussels. When in high silt environments, mussels may keep their valves
closed more often, resulting in reduced feeding activity (Ellis 1936,
p. 30), and high amounts of suspended sediments can dilute their food
source (Dennis 1984, p. 212). Adequate food availability and quality is
essential for normal behavior, growth, and viability during all life
stages of these two species. Excessive sedimentation often results in
fine silt particles culminating within interstitial spaces, embedding
and even concretizing the substrate and virtually altering habitat to
such a degree that it becomes uninhabitable for mussels, particularly
juveniles. Excessive suspended sediments may also impair visual acuity
of host fish, an obstacle to the mechanisms that mussels employ to
attract and inoculate host fish with glochidia.
The fluted kidneyshell and slabside pearlymussel are riverine
species that depend upon adequate water flow. Continuously flowing
water is a habitat feature associated with both of these species.
Flowing water maintains the stream bottom habitats where these species
are found, transports food items to the sedentary juvenile and adult
life stages, removes wastes, and provides oxygen for respiration. A
natural flow regime that includes periodic flooding and maintains
connectivity and interaction with the floodplain is critical for the
exchange of nutrients, movement of and spawning activities for
potential fish hosts, and maintenance of flow refuges in riffle and run
habitats. Further, riffle areas are often defined by an abundance and
diversity of organisms that likely have dependent and competitive
interactions yet unknown, but that are important for riffle-dwelling
mussel species such as the fluted kidneyshell and slabside
pearlymussel.
The ranges of standard physical and chemical water quality
parameters (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the two
species are poorly understood and have not been fully investigated.
However, as relatively sedentary animals, mussels must be able to
tolerate the full range of such parameters that occur naturally within
the streams where they persist, or they will either be biologically
compromised such that feeding, breeding, or sheltering activities are
affected or mortality occurs. Environmental contamination degrades
water quality parameters to a level that negatively affects a mussel's
biological functions and is a causal (contributing) factor in the
decline of mussel populations.
Most numeric standards for pollutants and water quality parameters
(for example, dissolved oxygen, pH, and heavy metals) that have been
adopted by the States under the Clean Water Act (CWA; 33 U.S.C. 1251 et
seq.) represent levels that are essential to the conservation of both
mussels. The Service is currently in consultation with the
Environmental Protection Agency (EPA) to evaluate the protectiveness of
criteria approved in EPA's water quality standards for endangered and
threatened species and their critical habitats as described in the
memorandum of agreement that our agencies signed in 2001 (66 FR 11201;
February 22, 2001). Other factors that can potentially alter water
quality are droughts and periods of low flow, water withdrawals,
nonpoint source runoff from adjacent land surfaces (for example,
excessive amounts of sediments, nutrients, and pesticides), point
source discharges from municipal and industrial wastewater treatment
facilities (for example, excessive amounts of ammonia, chlorine, and
metals), thermal and flow modifications resulting from hydropower
generation, and random spills or unregulated discharge events. These
factors can be particularly harmful to mussels during drought
conditions because water flows are depressed and pollutants are more
concentrated.
Both water quantity and quality where both species currently exist
vary widely according to season, precipitation events, and seasonal
human activities within the watershed. Conditions across the mussels'
historical ranges vary even more due to watershed size, geology,
geography, and differences in human population densities and land uses.
In general, both of the species survive in areas where the magnitude,
frequency, duration, and seasonality of water flow are adequate to
maintain stable habitats (for example, sufficient flow to remove fine
particles and sediments without causing degradation), and where water
quality is adequate for year-round survival (for example, moderate to
high levels of dissolved oxygen, low to moderate input of nutrients,
and relatively unpolluted water and sediments). Therefore, based on the
information above, we identify adequate food items for all life stages,
sufficient water flow, and adequate water quality to be PBFs for both
of these species.
Sites for Breeding, Reproduction, or Rearing
Mussels require a host fish for transformation of larval mussels
(glochidia) to juvenile mussels (Williams et al. 2008, p. 68). Thus,
the presence of the appropriate host fishes to complete the
reproductive life cycle is essential to the conservation of these two
mussels. The known host fishes of the fluted kidneyshell include:
barcheek darter (Etheostoma obeyense), fantail darter (E. flabellare),
rainbow darter (E. caeruleum), redline darter (E. rufilineatum),
bluebreast darter (E. camurum), dusky darter (Percina sciera), and
banded sculpin (Cottus
[[Page 59562]]
carolinae). The known host fishes of the slabside pearlymussel include:
popeye shiner (Notropis ariommus), rosyface shiner (N. rubellus),
saffron shiner (N. rubricroceus), silver shiner (N. photogenis),
telescope shiner (N. telescopus), Tennessee shiner (N. leuciodus),
whitetail shiner (Cyprinella galactura), striped shiner (Luxilus
chrysocephalus), warpaint shiner (L. coccogenis), white shiner (L.
albeolus), and eastern blacknose dace (Rhinichthys atratulus). There
are likely other suitable host fishes that have not yet been studied or
confirmed.
Fluted kidneyshell and slabside pearlymussel juveniles require
stable habitats with adequate water quantity and quality as previously
described for growth and survival. Excessive sediments or dense growth
of filamentous algae can expose juvenile mussels to entrainment or
predation and be detrimental to the survival of juvenile mussels
(Hartfield and Hartfield 1996, pp. 372-374). Geomorphic instability can
result in the loss of interstitial habitats and juvenile mussels due to
scouring or deposition (Hartfield 1993, pp. 372-373). Water quality,
sediment quality, stable habitat, health of fish hosts, and diet (of
all life stages) all influence survival of each life stage and
subsequent reproduction and recruitment (Cope et al. 2008, p. 452).
Floodplain connectivity is important to dissipate hydrolic energy
during periodic flooding. Also connection to the floodplain provides
habitats during wet years for spawning and foraging activities for fish
hosts that require floodplain habitats for successful reproduction and
recruitment to adulthood. Barko et al. (2006, pp. 252-256) found that
several fish host or potential host species (none of which is a
documented host for the fluted kidneyshell or slabside pearlymussel)
benefited from the ability to exploit floodplain habitat resources that
were not typically available for use during years of normal flows.
Furthermore, Kwak (1988, pp. 243-247) and Slipke and Maceina (2005, p.
289) indicated that periodic inundation of floodplain habitats
increased successful fish reproduction, which leads to increased
availability of native host fishes for mussel reproduction. However,
Rypel et al. (2009, p. 502) indicated that mussels tended to exhibit
minimal growth during high flow years. Therefore, optimal flooding of
these habitats would not be too frequent and may need to occur at
similar frequencies to that of the natural hydrologic regime of the
rivers and creeks inhabited by the fluted kidneyshell and slabside
pearlymussel.
Natural temperature regimes can be altered by impoundments, water
releases from dams, industrial and municipal effluents, and changes in
riparian habitat. Critical thermal limits for survival and normal
functioning of many mussel species and host fish are unknown. High
temperatures can reduce dissolved oxygen concentrations in the water,
which slows growth, reduces glycogen stores, impairs respiration, and
may inhibit reproduction (Hart and Fuller 1974, pp. 240-241). Low
temperatures can significantly delay or prevent metamorphosis (Watters
and O'Dee 1999, pp. 454-455). Water temperature increases have been
documented to shorten the period of glochidial encystment, increase
oxygen consumption, reduce the speed in which they orient themselves in
the substrate, and slow burrowing and movement responses (Hart and
Fuller 1974, pp. 240-241; Bartsch et al. 2000, p. 237; Watters et al.
2001, p. 546; Schwalb and Pusch 2007, pp. 264-265). Several studies
have documented the influence of temperature on the timing of aspects
of mussel reproduction (e.g., Gray et al. 2002, p. 156; Allen et al.
2007, p. 85; Steingraeber et al. 2007, pp. 303-309). Peak glochidial
releases are associated with water temperature thresholds that can be
thermal minimums or maximums, depending on the species (Watters and
O'Dee 2000, p. 136). Abnormal temperature changes may cause particular
problems to mussels whose reproductive cycles may be linked to fish
reproductive cycles (e.g., Young and Williams 1984, entire). Therefore,
based on the information above, we identify presence of appropriate
fish hosts, water quality, sediment quality, stable habitat, food for
all life stages, periodic flooding of and connectivity to floodplain
habitat, and a natural temperature regime to be PBFs for both of these
species.
Primary Constituent Elements for the Fluted Kidneyshell and Slabside
Pearlymussel
Under the Act and its implementing regulations, we are required to
identify the PBFs essential to the conservation of these mussel species
in areas occupied at the time of listing, focusing on the features'
primary constituent elements (PCEs). We consider PCEs to be the
specific elements of PBFs that provide for a species' life-history
processes and are essential to the conservation of the species.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species and the habitat
requirements for sustaining the essential life-history functions of the
species, we have determined that the PCEs for the fluted kidneyshell
are:
(1) Riffle habitats within large, geomorphically stable stream
channels (channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation).
(2) Stable substrates of sand, gravel, and cobble with low to
moderate amounts of fine sediment and containing flow refugia with low
shear stress.
(3) A natural hydrologic flow regime (the magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species are found, and connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for habitat maintenance, food availability for all life
stages, and spawning habitat for native fishes.
(4) Water quality with low levels of pollutants and including a
natural temperature regime, pH (between 6.0 to 8.5), oxygen content
(not less than 5.0 milligrams per liter (mg/L)), hardness, and
turbidity necessary for normal behavior, growth, and viability of all
life stages.
(5) The presence of abundant fish hosts, which may include the
barcheek darter, fantail darter, rainbow darter, redline darter,
bluebreast darter, dusky darter and banded sculpin, necessary for
recruitment of the fluted kidneyshell.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species and the habitat
requirements for sustaining the essential life-history functions of the
species, we have determined that the PCEs for the slabside pearly
mussel are:
(1) Riffle habitats within large, geomorphically stable stream
channels (channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation).
(2) Stable substrates of sand, gravel, and cobble with low to
moderate amounts of fine sediment and containing flow refugia with low
shear stress.
(3) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of rivers
with the floodplain, allowing the exchange of nutrients and sediment
for habitat maintenance, food availability for all life stages, and
spawning habitat for native fishes.
[[Page 59563]]
(4) Water quality with low levels of pollutants and including a
natural temperature regime, pH (between 6.0 to 8.5), oxygen content
(not less than 5.0 milligrams/liter), hardness, and turbidity necessary
for normal behavior, growth, and viability of all life stages.
(5) The presence of abundant fish hosts, which may include the
popeye shiner, rosyface shiner, saffron shiner, silver shiner,
telescope shiner, Tennessee shiner, whitetail shiner, white shiner, and
eastern blacknose dace, necessary for recruitment of the slabside
pearlymussel.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and that may require special management considerations or
protection. The 30 occupied units we are designating as critical
habitat for the fluted kidneyshell (17) and the slabside pearlymussel
(13), 10 of which overlap but are counted as separate critical habitat
units for each species, will require some level of management to
address the current and future threats to the PBFs of the species.
Habitat loss and degradation negatively impact the fluted
kidneyshell and slabside pearlymussel. Severe degradation from
impoundments, gravel and coal mining, oil and natural gas development,
sedimentation, chemical contaminants, and stream channel alterations
threaten the stream habitat and water quality on which these species
depend. Contaminants associated with coal mining (metals, other
dissolved solids), municipal effluents (bacteria, nutrients,
pharmaceuticals), and agriculture (fertilizers, pesticides, herbicides,
and animal waste) cause degradation of water quality and habitats
through increased acidity and conductivity, instream oxygen
deficiencies, excess nutrification, and excessive algal growths. The
CWA has been insufficient to significantly reduce or remove these
threats to the fluted kidneyshell and slabside pearlymussel.
Other natural and manmade factors, such as alteration of natural
temperature regimes below dams; chemical contaminants; sedimentation;
small, isolated populations; and low genetic diversity, combined with
localized extinctions from point source pollution or accidental toxic
chemical spills, habitat modification and progressive degradation by
nonpoint source pollutants, natural catastrophic changes to habitat
through flood scour or drought as exacerbated by climate change, and
nonindigenous species are threats to remaining populations of the
fluted kidneyshell and slabside pearlymussel.
Of the 30 total occupied units, a portion of 6 units are located on
the Daniel Boone National Forest (DBNF), 14 are almost entirely on
private land, 1 is located on the Big South Fork National River and
Recreational Area (BSFNRRA), 1 is located on the Cherokee National
Forest (CNF), and 8 units have mixed ownership with private, State
park, and national wildlife refuge lands. Four of the occupied units
have been designated as mussel sanctuaries by the TWRA.
Portions of six critical habitat units on DBNF land are being
managed and protected under DBNF's Land and Resource Management Plan
(LRMP), and the Hiwassee River unit is protected under CNF's LRMP
(United States Forest Service (USFS) 2004a, pp. 1-14; 2004b, entire).
The LRMPs are implemented through a series of project-level decisions
based on appropriate site-specific analysis and disclosure. The LRMPs
do not contain a commitment to select any specific project; rather,
they set up a framework of desired future conditions with goals,
objectives, and standards to guide project proposals. Projects are
proposed to solve resource management problems, move the forest
environment toward desired future conditions, and supply goods and
services to the public (USFS 2004a, pp. 1-14). The LRMPs contain a
number of protective standards that in general are designed to avoid
and minimize potential adverse effects to the fluted kidneyshell,
slabside pearlymussel, and other federally listed species; however, the
DBNF and CNF will continue to conduct project-specific section 7
consultations under the Act when their activities may adversely affect
the fluted kidneyshell, slabside pearlymussel, and other federally
listed species or adversely modify their designated critical habitats.
Fourteen of the 30 occupied critical habitat units are located
almost entirely on private property and are not presently under the
special management or protection provided by a legally operative plan
or agreement for the conservation of the species.
One of the 30 occupied critical habitat units (Big South Fork
Cumberland River) is located almost entirely on Federal lands within
the BSFNRRA. Land and resource management decisions and activities
within the BSFNRRA are guided by the National Park Service General
Management Plan, Field Management Plan, and Draft Non-Federal Oil and
Gas Management Plan (NPS 2005, entire; NPS 2006, pp. 1-12; NPS 2011,
entire).
Eight of the 30 occupied critical habitat units (Clinch and Duck
Rivers) have mixed ownership with private, State park, and national
wildlife refuge lands. These lands are operated under various plans
that may or may not provide the special management or protection
provided by a legally operative plan or agreement for the conservation
of these species.
Portions of four of the occupied critical habitat units (Powell,
Clinch, Hiwassee, and Duck Rivers) have been designated as mussel
sanctuaries by TWRA. The collection of mollusks and the degradation or
destruction of aquatic habitats in these areas is prohibited at all
times.
Various activities in or adjacent to each of the occupied critical
habitat units described in this final rule may affect one or more of
the PBFs. Some of these activities include, but are not limited to,
those discussed in the Summary of Factors Affecting the Species in the
final listing rule found elsewhere in today's Federal Register (e.g.,
impoundments, gravel and coal mining, water pollution, invasive
species; see Factors A, D, and E). Other activities that may affect
PBFs in the final critical habitat units include those listed in
Available Conservation Measures (see final listing rule). Special
management considerations or protection will conserve the PBFs for
these species. Management activities that could ameliorate threats on
both Federal and non-Federal lands include, but are not limited to: Use
of best management practices (BMPs) designed to reduce sedimentation,
erosion, and stream bank alteration; moderation of surface and ground
water withdrawals to maintain natural flow regimes; increase of
stormwater management and reduction of stormwater flows into the
systems; preservation of headwater streams; regulation of off-road
vehicle use; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the areas we are designating as occupied
critical habitat for the fluted kidneyshell and slabside pearlymussel
contain the PBFs necessary for the species, and that these features may
require special management considerations or protection. Special
management consideration or protection may be required to eliminate, or
to reduce to negligible levels, the threats affecting the PBFs of each
unit. Additional
[[Page 59564]]
discussion of threats facing individual units is provided in the
individual unit descriptions below.
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
and commercial data available to designate critical habitat for both
the fluted kidneyshell and slabside pearlymussel. In accordance with
the Act and its implementing regulations at 50 CFR 424.12(e), we also
consider whether designating additional areas outside those currently
occupied as well as those occupied at the time of listing is necessary
to ensure the conservation of these species. We are designating
critical habitat in areas within the geographic area currently occupied
by the species. We also are designating specific areas outside the
geographic area currently occupied by the species, which were
historically occupied but are presently unoccupied, because such areas
are essential for the conservation of the species.
We began our analysis by considering historical and current ranges
of both species. We used various sources including published literature
and museum collection databases, as well as surveys, reports, and field
notes prepared by biologists. We then identified the specific areas
that are occupied by both mussels and that contain one or more of the
PBFs. We defined occupied habitat as those stream reaches known to be
currently occupied by either of the two species. To identify the
currently occupied stream reaches, we used post-1980 survey data. To
identify the unoccupied stream reaches, we used survey data between the
late 1800s and 1979. Therefore, if a species was known to occur in an
area prior to 1980, but was not collected since then, the stream reach
is considered unoccupied. This criterion was chosen because a large
number of collections were conducted in the 1980s in the Cumberland and
Tennessee River systems. Some of the historical occurrences have not
been surveyed since the 1980s. However, because of the longevity of
these species (26-55 years) and the presence of fish hosts, they are
still thought to occur in these areas.
We then evaluated occupied stream reaches to delineate the probable
upstream and downstream extent of each species' distribution. Known
occurrences for some mussel species are extremely localized, and rare
mussels can be difficult to locate. In addition, stream habitats are
highly dependent upon upstream and downstream channel habitat
conditions for their maintenance. Therefore, where more than one
occurrence record of a particular species was found within a stream
reach, we considered the entire reach between the uppermost and
lowermost locations as occupied habitat.
We then considered whether this essential area was adequate for the
conservation of both species. Small, isolated, aquatic populations are
subject to chance catastrophic events and to changes in human
activities and land use practices that may result in their elimination.
Larger, more contiguous populations can reduce the threat of extinction
due to habitat fragmentation and isolation. For these reasons,
conservation of the fluted kidneyshell, but not the slabside
pearlymussel, requires expanding its range into currently unoccupied
portions of its historical habitat. Given that threats to the fluted
kidneyshell are compounded by its limited distribution and isolation,
it is unlikely that currently occupied habitat is adequate for its
conservation. The range of the fluted kidneyshell has been severely
curtailed, occupied habitats are limited and isolated, and population
sizes are generally small (see Summary of Factors Affecting the
Species, which can be found in the final listing rule published
elsewhere in today's Federal Register). For example, the fluted
kidneyshell is no longer believed to occur in the Rockcastle, Hiwassee,
Elk, Holston, French Broad, or Buffalo Rivers. The inclusion of
essential unoccupied areas will provide habitat for population
reintroduction and will decrease the risk of extinction. Based on the
best scientific data available, these areas not currently occupied by
the fluted kidneyshell are essential for their conservation.
We eliminated from consideration as unoccupied critical habitat the
Red and Harpeth River drainages; the Caney Fork, mainstem Cumberland,
mainstem Tennessee, Tellico, Obey, South Fork Powell, South Fork
Holston, West Prong Little Pigeon, Little Tennessee Rivers; and
Kennedy, Pittman, Otter, Flint, Sugar, Limestone, Shoal, Puckell, North
Fork, and Big Rock Creeks for both of these mussels. These areas are
not essential for the conservation of the mussels because of stream
channel alterations, a limited amount of available habitat coupled with
isolation from other populations, a lack of a native mussel fauna, poor
habitat or water quality, or a lack of available fish hosts.
All of the stream habitat areas designated as unoccupied critical
habitat have sufficient water quality and fish hosts necessary for the
fluted kidneyshell. The stream reaches also lack major anthropogenic
disturbances and have potential for reoccupation by the species through
future reintroduction efforts. Based on the above factors, all
unoccupied stream reaches included in the designation for the fluted
kidneyshell are essential for its conservation.
In our analysis (see above paragraph), we did not find suitable
habitat, water quality, or fish hosts present in areas historically
inhabited by but presently unoccupied by the slabside pearlymussel.
Therefore, we did not find any unoccupied stream reaches to be
essential to the conservation of the slabside pearlymussel.
Following the identification of occupied and unoccupied stream
reaches, the next step was to delineate the probable upstream and
downstream extent of each species' distribution. We used USGS 1:100,000
digital stream maps to delineate these boundaries of designated
critical habitat units according to the criteria explained below. The
upstream boundary of a unit in a stream is the first perennial, named
tributary confluence, a road-crossing bridge, or a permanent barrier to
fish passage (such as a dam) above the upstream-most current occurrence
record. The confluence of a tributary typically marks a significant
change in the size of the stream and is a logical and recognizable
upstream terminus. When a named tributary was not available, a road-
crossing bridge was used to mark the boundary. Likewise, a dam or other
barrier to fish passage marks the upstream extent to which mussels may
disperse via their fish hosts. The downstream boundary of a unit in a
stream is the confluence of a named tributary, or the upstream extent
of an impoundment, below the downstream-most occurrence record. In the
unit descriptions, distances between landmarks marking the upstream or
downstream extent of a stream segment are given in river kilometers and
equivalent miles, as measured tracing the course of the stream, not
straight-line distance.
Because mussels are naturally restricted by certain physical
conditions within a stream reach (i.e., flow, substrate), they may be
unevenly distributed within these habitat units. Uncertainty on
upstream and downstream distributional limits of some populations may
have resulted in small areas of occupied habitat excluded from, or
areas of unoccupied habitat included in, the designation. We recognize
that both historical and recent collection records upon which we relied
[[Page 59565]]
are incomplete, and that there may be river segments or small
tributaries not included in this designation that harbor small, limited
populations of one or both species considered in this designation, or
that others may become suitable in the future. The exclusion of such
areas does not diminish their potential individual or cumulative
importance to the conservation of these species. However, with proper
management, each of the critical habitat units (24 fluted kidneyshell
units, and 13 slabside pearlymussel units; 10 overlap between the two
species) are capable of supporting one or both of these mussel species,
and that populations within occupied units will serve as source
populations for artificial reintroduction into unoccupied units, as
well as assisted or natural migration into adjacent undesignated or
designated streams within each river drainage. The habitat areas
contained within the units described below constitute our best
evaluation of areas needed for the conservation of these species at
this time. Critical habitat may be revised for any or all of these
species should new information become available.
The areas designated as critical habitat below include only stream
channels within the ordinary high-water line and do not contain
developed areas or structures. The scale of the maps we prepared under
the parameters for publication within the Code of Federal Regulations
may not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule have been excluded by text in the rule and are not
designated as critical habitat. Therefore, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the PBFs in the adjacent critical
habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document. We include more detailed information on the boundaries
of the critical habitat designation in the preamble of this document.
We will make the coordinates or plot points or both on which each map
is based available to the public on http://www.regulations.gov at
Docket No. FWS-R4-ES-2013-0026, on our Internet site at http://www.fws.gov/cookeville, and at the Fish and Wildlife office responsible
for the designation (see FOR FURTHER INFORMATION CONTACT above).
Final Critical Habitat Designation
We are designating approximately 2,218 rkm (1,380 rmi) in Alabama,
Kentucky, Mississippi, Tennessee, and Virginia as critical habitat. For
the fluted kidneyshell, we are designating 24 critical habitat units
encompassing approximately 1,899 rkm (1,181 rmi) of stream channel in
Alabama, Kentucky, Tennessee, and Virginia. The critical habitat areas
we describe below constitute our current best assessment of areas that
meet the definition of critical habitat for the fluted kidneyshell. The
24 areas we designate as critical habitat are as follows: (1) Horse
Lick Creek, KY; (2) Middle Fork Rockcastle River, KY; (3) Rockcastle
River, KY; (4) Buck Creek, KY; (5) Rock Creek, KY; (6) Little South
Fork Cumberland River, KY; (7) Big South Fork Cumberland River, KY, TN;
(8) Wolf River and Town Branch, TN; (9) West Fork Obey River, TN; (10)
Indian Creek, VA; (11) Little River [tributary to the Clinch River],
VA; (12) North Fork Holston River, VA; (13) Middle Fork Holston River,
VA; (14) Big Moccasin Creek, VA; (15) Copper Creek, VA; (16) Clinch
River, TN, VA; (17) Powell River, TN, VA; (18) Nolichucky River, TN;
(19) Holston River, TN; (20) French Broad River, TN; (21) Hiwassee
River, TN; (22) Elk River, AL, TN; (23) Duck River, TN; and (24)
Buffalo River, TN.
We are designating 13 critical habitat units encompassing
approximately 1,562 rkm (970 rmi) of stream channel in Alabama,
Mississippi, Tennessee, and Virginia for the slabside pearlymussel. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
the slabside pearlymussel. The 13 areas we designate as critical
habitat are as follows: (1) North Fork Holston River, VA; (2) Middle
Fork Holston River, VA; (3) Big Moccasin Creek, VA; (4) Clinch River,
TN, VA; (5) Powell River, TN, VA; (6) Nolichucky River, TN; (7)
Hiwassee River, TN; (8) Sequatchie River, TN; (9) Paint Rock River, AL;
(10) Elk River, AL, TN; (11) Bear Creek, AL, MS; (12) Duck River, TN;
and (13) Buffalo River, TN.
Note that 10 of the units overlap and are designated as critical
habitat for both species (each overlapping unit is counted twice, once
for each species): Unit FK12 and SP1 (North Fork Holston River,
Virginia), Unit FK13 and SP2 (Middle Fork Holston River, Virginia),
Unit FK14 and SP3 (Big Moccasin Creek, Virginia), Unit FK16 and SP4
(Clinch River, Tennessee and Virginia), Unit FK17 and SP5 (Powell
River, Tennessee and Virginia), Unit FK18 and SP6 (Nolichucky River,
Tennessee), Unit FK21 and SP7 (Hiwassee River, Tennessee), Unit FK22
and SP10 (Elk River, Alabama and Tennessee), Unit FK23 and SP12 (Duck
River, Tennessee), and Unit FK24 and SP13 (Buffalo River, Tennessee).
Unit name, location, and the approximate stream length of each
designated critical habitat unit are shown in Table 1 for the fluted
kidneyshell and Table 2 for the slabside pearlymussel. The designated
critical habitat units include the stream channels within the ordinary
high-water line only. For this purpose, we have applied the definition
found at 33 CFR 329.11, and consider the ordinary high-water mark on
nontidal rivers to be 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.
States were granted ownership of lands beneath navigable waters up
to the ordinary high-water line upon achieving Statehood (Pollard v.
Hagan, 44 U.S. (3 How.) 212 (1845)). Prior sovereigns or the States may
have made grants to private parties that included lands below the
ordinary high-water mark of some navigable waters that are included in
this final rule. Most, if not all, lands beneath the navigable waters
included in this rule are owned by the States. The lands beneath most
nonnavigable waters included in this rule are in private ownership. In
Alabama, the riparian landowner owns the stream to the middle of the
channel for non-navigable streams. Riparian lands along the waters are
either in private ownership, or are owned by county, State, or Federal
entities. Lands under county, State, and Federal ownership consist of
managed conservation areas and are considered to have some level of
protection.
[[Page 59566]]
Table 1--Occupancy and Ownership of Riparian Lands Adjacent to the Designated Critical Habitat Units for the
Fluted Kidneyshell
----------------------------------------------------------------------------------------------------------------
Federal, State,
Unit Location Occupied by Private ownership County, City Total length rkm
species rkm (rmi) ownership rkm (rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
FK1....... Horse Lick Creek, Yes.............. 3.6 (2.3) 15.8 (10.1) 19.4 (12.4)
KY.
FK2....... Middle Fork Yes.............. 6.0 (3.7) 6.5 (4.0) 12.5 (7.7)
Rockcastle River,
KY.
FK3....... Rockcastle River, No............... 11.7 (7.3) 58.2 (36.2) 69.9 (43.5)
KY.
FK4....... Buck Creek, KY.... Yes.............. 59.7 (37.1) 1.3 (0.8) 61.0 (37.9)
FK5....... Rock Creek, KY.... Yes.............. 1.5 (0.9) 17.7 (11.0) 19.2 (11.9)
FK6....... Little South Fork Yes.............. 61.1 (38.0) 4.4 (2.7) 65.5 (40.7)
Cumberland River,
KY.
FK7....... Big South Fork Yes.............. 1.5 (1.0) 90.0 (55.9) 91.5 (56.9)
Cumberland River,
KY, TN.
FK8....... Wolf River and Yes.............. 38.7 (24.0) 5.7 (3.5) 44.4 (27.5)
Town Branch, TN.
FK9....... West Fork Obey Yes.............. 19.3 (12.0) 0 19.3 (12.0)
River, TN.
FK10...... Indian Creek, VA.. Yes.............. 6.7 (4.2) 0 6.7 (4.2)
FK11...... Little River, VA.. Yes.............. 50.4 (31.3) 0 50.4 (31.3)
FK12...... North Fork Holston Yes.............. 66.4 (41.3) 0.9 (0.5) 67.3 (41.8)
River, VA.
FK13...... Middle Fork Yes.............. 89.0 (55.3) 0 89.0 (55.3)
Holston River, VA.
FK14...... Big Moccasin No............... 33.1 (20.6) 0 33.1 (20.6)
Creek, VA.
FK15...... Copper Creek, VA.. Yes.............. 55.5 (34.5) 0 55.5 (34.5)
FK16...... Clinch River, TN, Yes.............. 256.3 (159.2) 6.4 (4.0) 262.7 (163.2)
VA.
FK17...... Powell River, TN, Yes.............. 152.4 (94.7) 0.3 (0.2) 152.7 (94.9)
VA.
FK18...... Nolichucky River, Yes.............. 50.9 (31.6) 0.9 (0.6) 51.9 (32.2)
TN.
FK19...... Holston River, TN. No............... 85.1 (52.9) 0 85.1 (52.9)
FK20...... French Broad No............... 54.4 (33.8) 1.7 (1.1) 56.1 (34.9)
River, TN.
FK21...... Hiwassee River, TN No............... 0 24.4 (15.2) 24.4 (15.2)
FK22...... Elk River, AL, TN. No............... 162.8 (101.2) 1.5 (0.9) 164.3 (102.1)
FK23...... Duck River, TN.... Yes.............. 284.0 (176.5) 63.5 (39.4) 347.5 (215.9)
FK24...... Buffalo River, TN. No............... 50.0 (31.0) 0 50.0 (31.0)
---------------------------------------------------------------------------------
Total. .................. ................. .................... .................... 1,899.4 (1,180.5)
----------------------------------------------------------------------------------------------------------------
Table 2--Occupancy and Ownership of Riparian Lands Adjacent to the Designated Critical Habitat Units for the
Slabside Pearlymussel
----------------------------------------------------------------------------------------------------------------
Federal, State,
Unit Location Occupied Private ownership County, City Total length rkm
rkm (rmi) ownership rkm (rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
SP1....... North Fork Holston Yes.............. 66.4 (41.3) 0.9 (0.5) 67.3 (41.8)
River, VA.
SP2....... Middle Fork Yes.............. 89.0 (55.3) 0 89.0 (55.3)
Holston River, VA.
SP3....... Big Moccasin Yes.............. 33.1 (20.6) 0 33.1 (20.6)
Creek, VA.
SP4....... Clinch River, TN, Yes.............. 256.3 (159.2) 6.4 (4.0) 262.7 (163.2)
VA.
SP5....... Powell River, TN, Yes.............. 152.4 (94.7) 0.3 (0.2) 152.7 (94.9)
VA.
SP6....... Nolichucky River, Yes.............. 50.9 (31.6) 0.9 (0.6) 51.9 (32.2)
TN.
SP7....... Hiwassee River, TN Yes.............. 0 24.4 (15.2) 24.4 (15.2)
SP8....... Sequatchie River, Yes.............. 151.5 (94.1) 0 151.5 (94.1)
TN.
SP9....... Paint Rock River, Yes.............. 119.2 (74.1) 5.8 (3.6) 125.0 (77.7)
AL.
SP10...... Elk River, AL, TN. Yes.............. 162.8 (101.2) 1.5 (0.9) 164.3 (102.1)
SP11...... Bear Creek, AL, MS Yes.............. 36.3 (22.5) 6.1 (3.8) 42.4 (26.3)
SP12...... Duck River, TN.... Yes.............. 284.0 (176.5) 63.5 (39.4) 347.5 (215.9)
SP13...... Buffalo River, TN. Yes.............. 50.0 (31.0) 0 50.0 (31.0)
---------------------------------------------------------------------------------
Total. .................. ................. .................... .................... 1,561.8 (970.3)
----------------------------------------------------------------------------------------------------------------
Eleven critical habitat units designated for the fluted
kidneyshell, slabside pearlymussel, or both species are currently
designated as critical habitat under the Act for other species,
including the purple bean (Villosa perpurpurea), oyster mussel,
Cumberlandian combshell, Cumberland elktoe (Alasmidonta atropurpurea),
rough rabbitsfoot, rabbitsfoot, slender chub (Erimystax cahni), and
yellowfin madtom (Noturus flavipinnis) (42 FR 45526, 78 FR 57076, 42 FR
47840, 69 FR 53136) (see Table 3). The designated units for the fluted
kidneyshell and slabside pearlymussel completely or partially overlap
existing units in the Powell, Clinch, Nolichucky, Big South Fork
Cumberland, Duck, and Paint Rock Rivers and in the Buck, Rock, Indian,
Copper, and Bear Creeks; however, the exact unit descriptions (lengths)
differ due to mapping refinement since the earlier designations.
Three critical habitat units designated for the fluted kidneyshell
and slabside pearlymussel are currently designated under section 10(j)
of the Act as NEPs for other species, including the yellowfin madtom in
the North Fork Holston River, VA; and 15 mussels, 1 snail, and 5 fishes
in the lower Holston and French Broad Rivers, TN (53 FR 29335, 72 FR
52434, see Table 3).
All of the critical habitat units designated for the fluted
kidneyshell and slabside pearlymussel contain historical or extant
records of federally listed or proposed species, except for the Wolf
River and Town Branch and West Fork Obey River, TN (see Table 4).
[[Page 59567]]
Table 3--Critical Habitat Units Designated for the Fluted Kidneyshell and Slabside Pearlymussel That Are
Currently Designated or Proposed as Critical Habitat or Nonessential Experimental Populations (NEPs) for Other
Federally Listed Species
----------------------------------------------------------------------------------------------------------------
Nonessential
Unit (Unit No.) Species Critical experimental Length of overlap rkm
habitat population (rmi)
----------------------------------------------------------------------------------------------------------------
Buck Creek (FK4)............ Oyster mussel, 69 FR 53136.... .................... 61 (38)
Cumberlandian.
Rock Creek (FK5)............ Cumberland 69 FR 53136.... .................... 19 (12)
elktoe.
Big South Fork Cumberland Oyster mussel, 69 FR 53136.... .................... 92 (57)
River (FK7). Cumberlandian
combshell,
Cumberland
elktoe.
Indian Creek (FK10)......... Purple bean, 69 FR 53136.... .................... 7 (4)
Oyster mussel,
Cumberlandian
combshell,
Rough
rabbitsfoot.
North Fork Holston River Yellowfin ............... 53 FR 29335......... 58 (36)
(FK12, SP1). madtom.
Copper Creek (FK15)......... Purple bean, 69 FR 53136, 42 .................... 21 (13), 56 (35), 56 (35)
Oyster mussel, FR 45526, 42
Cumberlandian FR 47840.
combshell,
Rough
rabbitsfoot,
Yellowfin
madtom.
Clinch River (FK16, SP4).... Purple bean, 69 FR 53136, 42 .................... 263 (163), 263 (163), 263
Oyster mussel, FR 45526, 42 (163)
Cumberlandian FR 47840.
combshell,
Rough
rabbitsfoot,
Slender chub,
Yellowfin
madtom.
Powell River (FK17, SP5).... Purple bean, 69 FR 53136, 42 .................... 153 (95), 153 (95), 153
Cumberlandian FR 45526, 42 (95)
combshell, FR 47840.
Oyster mussel,
Rough
rabbitsfoot,
Slender chub,
Yellowfin
madtom.
Nolichucky River (FK18, SP6) Oyster mussel, 69 FR 53136.... .................... 8 (5)
Cumberlandian
combshell.
Holston River (FK19)........ 15 Mussels, 1 ............... 72 FR 52434......... 85 (53)
Snail, and 5
Fishes.
French Broad River (FK20)... 15 Mussels, 1 ............... 72 FR 52434......... 56 (35)
Snail, and 5
Fishes.
Paint Rock River (SP9)...... Rabbitsfoot.... 78 FR 57076.... .................... 81 (50)
Bear Creek, (SP11).......... Oyster mussel, 69 FR 53136, 78 .................... 42 (26), 42 (26)
Cumberlandian FR 57076.
combshell,
Rabbitsfoot.
Duck River (FK23, SP12)..... Oyster mussel, 69 FR 53136, 78 .................... 74 (46), 235 (146)
Cumberlandian FR 57076.
combshell,
Rabbitsfoot.
Critical Habitat Overlap.... ............... ............... .................... 1,017 (631)
NEP Overlap................. ............... ............... .................... 199 (124)
-----------------------------------------------------------------------------------
Total Overlap........... ............... ............... .................... 1,216 (755)
----------------------------------------------------------------------------------------------------------------
Note: For those units with critical habitat designations for more than one species, the critical habitat unit
with the longest length of overlap was used to calculate the total overlap (e.g., Duck River is critical
habitat for the oyster mussel (74 rkm) and rabbitsfoot (235 rkm). The designated units for the fluted
kidneyshell and slabside pearlymussel completely or partially overlap existing units in the Powell, Clinch,
Nolichucky, Big South Fork Cumberland, Duck, and Paint Rock Rivers and in the Buck, Rock, Indian, Copper, and
Bear Creeks; however, the exact unit descriptions (lengths) differ due to mapping refinement since the earlier
designations.
Table 4--Other Federally Listed or Proposed Species With Historical or
Extant Records From the Designated Critical Habitat Unit Streams for the
Fluted Kidneyshell and Slabside Pearlymussel
------------------------------------------------------------------------
------------------------------------------------------------------------
Unit Location Federally Listed or Proposed
Species Present
------------------------------------------------------------------------
FK1............... Horse Lick Cumberland bean. Villosa
Creek, KY. trabalis.
littlewing Pegias fabula.
pearlymussel.
FK2............... Middle Fork Cumberland bean. Villosa
Rockcastle trabalis.
River, KY.
FK3............... Rockcastle Cumberland bean. Villosa
River, KY. trabalis.
Cumberlandian Epioblasma
combshell. brevidens.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
FK4............... Buck Creek, KY.. Cumberland bean. Villosa
trabalis.
Cumberlandian Epioblasma
combshell. brevidens.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
snuffbox........ Epioblasma
triquetra.
yellow blossom.. Epioblasma
florentina
florentina.
FK5............... Rock Creek, KY.. Cumberland Alasmidonta
elktoe. atropurpurea.
FK6............... Little South Cumberland bean. Villosa
Fork Cumberland trabalis.
River, KY.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
snuffbox........ Epioblasma
triquetra.
palezone shiner. Notropis
albizonatus.
[[Page 59568]]
FK7............... Big South Fork Cumberland bean. Villosa
Cumberland trabalis.
River, KY.
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Alasmidonta
elktoe. atropurpurea.
dromedary Dromus dromas.
pearlymussel.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
spectaclecase... Cumberlandia
monodonta.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
duskytail darter Etheostoma
percnurum.
FK8............... Wolf River and None............ ................
Town Branch, TN.
FK9............... West Fork Obey None............ ................
River, TN.
FK10.............. Indian Creek, VA purple bean..... Villosa
perpurpurea.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
FK11.............. Little River, VA finerayed pigtoe Fusconaia
cuneolus.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
FK12, SP1......... North Fork littlewing Pegias fabula.
Holston River, pearlymussel.
VA.
purple bean..... Villosa
perpurpurea.
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
shiny pigtoe.... Fusconaia cor.
snuffbox........ Epioblasma
triquetra.
spotfin chub.... Erimonax
monachus.
FK13, SP2......... Middle Fork littlewing Pegias fabula.
Holston River, pearlymussel.
VA.
shiny pigtoe.... Fusconaia cor.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
yellow blossom.. Epioblasma
florentina
florentina.
spotfin chub.... Erimonax
monachus.
FK14, SP3......... Big Moccasin finerayed pigtoe Fusconaia
Creek, VA. cuneolus.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
FK15.............. Copper Creek, VA finerayed pigtoe Fusconaia
cuneolus.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
purple bean..... Villosa
perpurpurea.
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
shiny pigtoe.... Fusconaia cor.
duskytail darter Etheostoma
percnurum.
yellowfin madtom Noturus
flavipinnis.
FK16, SP4......... Clinch River, Appalachian Quadrula sparsa.
TN, VA. monkeyface.
birdwing Lemiox rimosus.
pearlymussel.
cracking Hemistena lata.
pearlymussel.
Cumberland bean. Villosa
trabalis.
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Quadrula
monkeyface. intermedia.
dromedary Dromus dromas.
pearlymussel.
fanshell........ Cyprogenia
stegaria.
finerayed pigtoe Fusconaia
cuneolus.
green blossom Epioblasma
pearlymussel. torulosa
gubernaculum.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
pink mucket..... Lampsilis
abrupta.
purple bean..... Villosa
perpurpurea.
rayed bean...... Villosa fabalis.
rough pigtoe.... Pleurobema
plenum.
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
sheepnose....... Plethobasus
cyphyus.
shiny pigtoe.... Fusconaia cor.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
yellow blossom.. Epioblasma
florentina
florentina.
pygmy madtom.... Noturus
stanauli.
slender chub.... Erimystax cahni.
FK17, SP5......... Powell River, Appalachian Quadrula sparsa.
TN, VA. monkeyface.
birdwing Lemiox rimosus.
pearlymussel.
cracking Hemistena lata.
pearlymussel.
[[Page 59569]]
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Quadrula
monkeyface. intermedia.
dromedary Dromus dromas.
pearlymussel.
finerayed pigtoe Fusconaia
cuneolus.
green blossom Epioblasma
pearlymussel. torulosa
gubernaculum.
oyster mussel... Epioblasma
capsaeformis.
purple bean..... Villosa
perpurpurea.
rayed bean...... Villosa fabalis.
rough Quadrula
rabbitsfoot. cylindrica
strigillata.
sheepnose....... Plethobasus
cyphyus.
shiny pigtoe.... Fusconaia cor.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
yellow blossom.. Epioblasma
florentina
florentina.
slender chub.... Erimystax cahni.
yellowfin madtom Noturus
flavipinnis.
FK18, SP6......... Nolichucky Cumberlandian Epioblasma
River, TN. combshell. brevidens.
green blossom Epioblasma
pearlymussel. torulosa
gubernaculum.
oyster mussel... Epioblasma
capsaeformis.
rayed bean...... Villosa fabalis.
spectaclecase... Cumberlandia
monodonta.
snail darter.... Percina tanasi.
FK19.............. Holston River, Appalachian Quadrula sparsa.
TN. Monkeyface.
birdwing Lemiox rimosus.
pearlymussel.
cracking Hemistena lata.
pearlymussel.
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Quadrula
monkeyface. intermedia.
dromedary Dromus dromas.
pearlymussel.
green blossom Epioblasma
pearlymussel. torulosa
gubernaculum.
oyster mussel... Epioblasma
capsaeformis.
pink mucket..... Lampsilis
abrupta.
ring pink....... Obovaria retusa.
sheepnose....... Plethobasus
cyphyus.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
turgid blossom Epioblasma
pearlymussel. turgidula.
white wartyback. Plethobasus
cicatricosus.
yellow blossom.. Epioblasma
florentina
florentina.
slender chub.... Erimystax cahni.
snail darter.... Percina tanasi.
FK20.............. French Broad birdwing Lemiox rimosus.
River, TN. pearlymussel.
cracking Hemistena lata.
pearlymussel.
dromedary Dromus dromas.
pearlymussel.
fanshell........ Cyprogenia
stegaria.
orangefoot Plethobasus
pimpleback. cooperianus.
oyster mussel... Epioblasma
capsaeformis.
pink mucket..... Lampsilis
abrupta.
ring pink....... Obovaria retusa.
rough pigtoe.... Pleurobema
plenum.
sheepnose....... Plethobasus
cyphyus.
shiny pigtoe.... Fusconaia cor.
tubercled Epioblasma
blossom torulosa
pearlymussel. torulosa.
yellow blossom.. Epioblasma
florentina
florentina.
snail darter.... Percina tanasi.
FK21, SP7......... Hiwassee River, Appalachian Quadrula sparsa.
TN. monkeyface.
Cumberland bean. Villosa
trabalis.
dromedary Dromus dromas.
pearlymussel.
orangefoot Plethobasus
pimpleback. cooperianus.
oyster mussel... Epioblasma
capsaeformis.
rough pigtoe.... Pleurobema
plenum.
sheepnose....... Plethobasus
cyphyus.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
tubercled Epioblasma
blossom torulosa
pearlymussel. torulosa.
yellow blossom.. Epioblasma
florentina
florentina.
SP8............... Sequatchie Anthony's Athearnia
River, TN. riversnail. anthonyi.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
snail darter.... Percina tanasi.
SP9............... Paint Rock Alabama Lampsilis
River, AL. lampmussel. virescens.
[[Page 59570]]
Cumberland bean. Villosa
trabalis.
Cumberlandian Epioblasma
combshell. brevidens.
finerayed pigtoe Fusconaia
cuneolus.
oyster mussel... Epioblasma
capsaeformis.
pale lilliput... Toxolasma
cylindrellus.
pink mucket..... Lampsilis
abrupta.
shiny pigtoe.... Fusconaia cor.
snuffbox........ Epioblasma
triquetra.
yellow blossom.. Epioblasma
florentina
florentina.
palezone shiner. Notropis
albizonatus.
snail darter.... Percina tanasi.
rabbitsfoot..... Quadrula
cylindrica
cylindrica.
FK22, SP10........ Elk River, AL, Alabama Lampsilis
TN. lampmussel. virescens.
birdwing Lemiox rimosus.
pearlymussel.
cracking Hemistena lata.
pearlymussel.
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Quadrula
monkeyface. intermedia.
dromedary Dromus dromas.
pearlymussel.
fanshell........ Cyprogenia
stegaria.
finerayed pigtoe Fusconaia
cuneolus.
littlewing Pegias fabula.
pearlymussel.
pale lilliput... Toxolasma
cylindrellus.
rabbitsfoot..... Quadrula
cylindrica
cylindrica.
rayed bean...... Villosa fabalis.
shiny pigtoe.... Fusconaia cor.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
tubercled Epioblasma
blossom torulosa
pearlymussel. torulosa.
turgid blossom Epioblasma
pearlymussel. turgidula.
yellow blossom.. Epioblasma
florentina
florentina.
boulder darter.. Etheostoma
wapiti.
snail darter.... Percina tanasi.
SP11.............. Bear Creek, AL, Alabama Lampsilis
MS. lampmussel. virescens.
Cumberlandian Epioblasma
combshell. brevidens.
oyster mussel... Epioblasma
capsaeformis.
pink mucket..... Lampsilis
abrupta.
snuffbox........ Epioblasma
triquetra.
turgid blossom Epioblasma
pearlymussel. turgidula.
yellow blossom.. Epioblasma
florentina
florentina.
rabbitsfoot..... Quadrula
cylindrica
cylindrica.
FK23, SP12........ Duck River, TN.. birdwing Lemiox rimosus.
pearlymussel.
clubshell....... Pleurobema
clava.
cracking Hemistena lata.
pearlymussel.
Cumberlandian Epioblasma
combshell. brevidens.
Cumberland Quadrula
monkeyface. intermedia.
littlewing Pegias fabula.
pearlymussel.
oyster mussel... Epioblasma
capsaeformis.
pale lilliput... Toxolasma
cylindrellus.
pink mucket..... Lampsilis
abrupta.
rayed bean...... Villosa fabalis.
sheepnose....... Plethobasus
cyphyus.
snuffbox........ Epioblasma
triquetra.
spectaclecase... Cumberlandia
monodonta.
tan riffleshell. Epioblasma
florentina
walkeri (=E.
walkeri).
tubercled Epioblasma
blossom torulosa
pearlymussel. torulosa.
turgid blossom Epioblasma
pearlymussel. turgidula.
winged mapleleaf Quadrula
fragosa.
yellow blossom.. Epioblasma
florentina
florentina.
pygmy madtom.... Noturus
stanauli.
rabbitsfoot..... Quadrula
cylindrica
cylindrica.
FK24, SP13........ Buffalo River, pale lilliput... Toxolasma
TN. cylindrellus.
spotfin chub.... Erimonax
monachus.
rabbitsfoot..... Quadrula
cylindrica
cylindrica.
------------------------------------------------------------------------
For each stream reach designated as a critical habitat unit, the
upstream and downstream boundaries are described generally below. More
precise definitions are provided in the Regulation Promulgation section
at the
[[Page 59571]]
end of this final rule. For a discussion of the status and distribution
of the fluted kidneyshell and slabside pearlymussel for each critical
habitat unit, refer to the final listing rule published elsewhere in
today's Federal Register.
Fluted Kidneyshell and Slabside Pearlymussel Critical Habitat
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed must contain PBFs which are (1) essential to the
conservation of the species and (2) which may require special
management considerations or protection. For those units occupied by
either the fluted kidneyshell, slabside pearlymussel, or both species,
we describe the principal PBFs essential to the conservation of the
species and the special management considerations or protections that
may be needed for each unit below.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For those units unoccupied by the fluted kidneyshell, we are
designating these units because we have determined that they are
essential for the conservation of the species due to the need to re-
establish the species within other portions of its historical range in
order to reduce threats from stochastic events.
For four of the units (Big Moccasin Creek; Hiwassee, Elk, and
Buffalo Rivers), we are designating critical habitat for the slabside
pearlymussel under prong one of the Act (occupied), while at the same
time designating the unit under prong two of the Act for the fluted
kidneyshell species (unoccupied). Therefore, the principal PBFs and
special management considerations or protections given for these units
only apply to the species for which the unit is occupied critical
habitat (slabside pearlymussel).
Unit FK1: Horse Lick Creek, Rockcastle and Jackson Counties, Kentucky
Unit FK1 encompasses approximately 19 rkm (12 rmi) of Horse Lick
Creek, in Rockcastle and Jackson Counties, KY. It includes the mainstem
of Horse Lick Creek from its confluence with the Rockcastle River
upstream to Clover Bottom Creek. The unit is within the Cumberland
River system and is critical habitat for the fluted kidneyshell. This
unit is included in the geographical area occupied by the fluted
kidneyshell at the time of listing. This unit is located almost
entirely on private lands; however, approximately 16 rkm (10 rmi) are
federal lands within the DBNF. Land and resource management decisions
and activities within the DBNF are guided by DBNF's LRMP (USFS 2004a,
pp. 1-14).
The channel within Unit FK1 is relatively stable, with an abundance
of riffle habitats (PCE 1), with relatively silt-free sand and gravel
substrates (PCE 2), and adequate instream flows (PCE 3). A diverse fish
fauna, including fish host(s) for the fluted kidneyshell, are known
from this unit (PCE 5).
Within Unit FK1, the fluted kidneyshell and its habitat may require
special management considerations or protection to address potential
adverse effects associated with legacy coal mines and coal mining
activities, silviculture-related activities, natural gas and oil
exploration activities in headwater reaches, illegal off-road vehicle
use and other recreational activities, and nonpoint source pollution
originating in headwater reaches.
Unit FK2: Middle Fork Rockcastle River, Jackson County, Kentucky
Unit FK2 includes 12.5 rkm (7.7 rmi) of the Middle Fork Rockcastle
River from its confluence with the Rockcastle River upstream to its
confluence with Indian Creek and Laurel Fork in Jackson County, KY. The
unit is within the Cumberland River system and is occupied critical
habitat for the fluted kidneyshell. About half of this unit
(approximately 6 rkm (4 rmi)) is in public ownership (DBNF), and half
is in private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp.
1-14).
The channel within Unit FK2 is relatively stable and has an
abundance of riffle habitats (PCE 1), with relatively silt-free sand
and gravel substrates (PCE 2), and adequate instream flows (PCE 3).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects caused by resource extraction (coal mining,
silviculture, natural gas and oil exploration activities), agricultural
activities (livestock), lack of adequate riparian buffers, construction
and maintenance of State and county roads, illegal off-road vehicle
use, nonpoint source pollution arising from a wide variety of human
activities, and potentially canopy loss caused by infestations of the
hemlock woolly adelgid, Adelges tsugae, an invasive pest threatening
eastern hemlock trees (Tsuga canadensis) in the eastern United States.
Hemlocks are an important component of riparian vegetation throughout
the range of the two mussels.
Unit FK3: Rockcastle River, Pulaski, Laurel, and Rockcastle Counties,
Kentucky
Unit FK3 includes approximately 70 rkm (43 rmi) of the Rockcastle
River from the backwaters of Lake Cumberland near its confluence with
Cane Creek along the Laurel and Pulaski County line, KY, upstream to
its confluence with Horse Lick Creek along the Laurel and Rockcastle
County line, KY. The unit is within the Cumberland River system and is
considered unoccupied by the fluted kidneyshell at the time of listing,
but within the species' historical range. Live fluted kidneyshell have
not been collected within Unit FK3 since 1911; however, it persists in
adjacent tributaries such as Horse Lick Creek and shell material has
been found as recently as 1985 (Wilson and Clark 1914 and Thompson 1985
in Cicerello 1993, p. 12). In 2010, surveys of the Rockcastle River
showed that the river had a diverse mussel fauna, including the
federally endangered Cumberland bean (McGregor 2010, unpubl. data).
We consider this unit essential for the conservation of the fluted
kidneyshell due to the need to re-establish the species within other
portions of its historical range in order to reduce threats from
stochastic events. Therefore, this unit is designated as unoccupied
critical habitat for the fluted kidneyshell. A portion of this unit
(approximately 12 rkm (7 rmi)) is in private ownership, but the
majority is in public ownership (DBNF). Land and resource management
decisions and activities within the DBNF are guided by DBNF's LRMP
(USFS 2004a, pp. 1-14).
Unit FK4: Buck Creek, Pulaski County, Kentucky
Unit FK4 includes approximately 61 rkm (38 rmi) of Buck Creek from
State Route 192 upstream to Route 328, Pulaski County, KY. The unit is
within the Cumberland River basin and is critical habitat for the
fluted kidneyshell. This unit is included in the geographical area
occupied by the species at the time of listing. A portion of this unit
(1.3 rkm (0.8 rmi)) is in public ownership (DBNF), but the majority is
in private ownership. Land and resource management decisions and
activities within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp.
1-
[[Page 59572]]
14). The unit completely overlaps existing critical habitat for the
oyster mussel and Cumberlandian combshell (69 FR 53136).
The channel within Unit FK4 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects associated with instream gravel mining,
silviculture-related activities, illegal off-road vehicle use and other
recreational activities, and nonpoint source pollution from
agricultural and developmental activities.
Unit FK5: Rock Creek, McCreary County, Kentucky
Unit FK5 includes approximately 19 rkm (12 rmi) of Rock Creek from
its confluence with White Oak Creek upstream to the low water crossing
at rkm 25.6 (rmi 15.9) in McCreary County, KY. The unit is within the
Cumberland River system and is critical habitat for the fluted
kidneyshell. This unit is included in the geographical area occupied by
the species at the time of listing. A portion of this unit (1.5 rkm
(0.9 rmi)) is in private ownership, but the majority is in public
ownership (DBNF). Land and resource management decisions and activities
within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp. 1-14). The
unit completely overlaps existing critical habitat for the Cumberland
elktoe (69 FR 53136).
The channel within Unit FK5 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects caused by resource extraction (coal mining,
silviculture, natural gas and oil exploration activities), agricultural
activities (livestock), lack of adequate riparian buffers, construction
and maintenance of State and county roads, illegal off-road vehicle
use, nonpoint source pollution arising from a wide variety of human
activities, and potentially canopy loss caused by infestations of the
hemlock woolly adelgid.
Unit FK6: Little South Fork Cumberland River, McCreary and Wayne
Counties, Kentucky
Unit FK6 includes 65.5 rkm (40.7 rmi) of the Little South Fork
Cumberland River from its confluence with the Big South Fork Cumberland
River, where it is the dividing line between Wayne and McCreary
Counties, upstream to its confluence with Dobbs Creek in Wayne County,
KY. The unit is within the Cumberland River system and is critical
habitat for the fluted kidneyshell. This unit is included in the
geographical area occupied by the species at the time of listing. A
portion of this unit (4.4 rkm (2.7 rmi)) is in public ownership (DBNF),
but the majority is in private ownership. Land and resource management
decisions and activities within the DBNF are guided by DBNF's LRMP
(USFS 2004a, pp. 1-14).
The channel within Unit FK6 is relatively stable, with an abundance
of riffle habitats (PCE 1), relatively silt-free sand and gravel
substrates (PCE 2), and adequate instream flows (PCE 3). A diverse fish
fauna, including fish host(s) for the fluted kidneyshell, are known
from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects caused by resource extraction (coal mining,
silviculture, natural gas and oil exploration activities), agricultural
activities (livestock), lack of adequate riparian buffers, construction
and maintenance of State and county roads, illegal off-road vehicle
use, nonpoint source pollution arising from a wide variety of human
activities, and potentially canopy loss caused by infestations of the
hemlock woolly adelgid.
Unit FK7: Big South Fork Cumberland River, Fentress, Morgan, and Scott
Counties, Tennessee, and McCreary County, Kentucky
Unit FK7 includes a combined total of approximately 92 rkm (57 rmi)
of the Big South Fork of the Cumberland River, Clear Fork of the New
River, and the New River in Tennessee and Kentucky. Unit FK7 includes
approximately 45 rkm (28 rmi) of the Big South Fork Cumberland River
from its confluence with Laurel Crossing Branch downstream of Big
Shoals, McCreary County, KY, upstream to its confluence with Clear Fork
and of the New River, Scott County, TN. This unit also includes 32.3
rkm (20.0 rmi) of Clear Fork from its confluence with the Big South
Fork and New River in Scott County, TN, upstream to its confluence with
Crooked Creek along the Fentress and Morgan County line, TN. This unit
also includes 14.7 rkm (9.1 rmi) of the New River from its confluence
with the Big South Fork upstream to the Highway 27 Bridge crossing in
Scott County, TN. The unit is within the Cumberland River system and is
designated as critical habitat for the fluted kidneyshell. This unit is
included in the geographical area occupied by the species at the time
of listing. A portion of this unit (92 rkm (57 rmi)) has been
designated as critical habitat for the Cumberlandian combshell, oyster
mussel, and Cumberland elktoe (69 FR 53136).
This unit is located almost entirely on federal lands within the
BSFNRRA. Land and resource management decisions and activities within
the BSFNRRA are guided by the National Park Service General Management
Plan, Field Management Plan, and Draft Non-Federal Oil and Gas
Management Plan (NPS 2005, entire; NPS 2006, pp. 1-12; NPS 2011,
entire).
The channel within Unit FK7 is relatively stable, with relatively
silt-free sand and gravel substrates (PCE 2) and adequate instream
flows (PCE 3). A diverse fish fauna, including fish host(s) for the
fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects caused by resource extraction (coal mining,
silviculture, natural gas and oil exploration activities), lack of
adequate riparian buffers, construction and maintenance of roads,
recreational horse riding, illegal off-road vehicle use, nonpoint
source pollution arising from a wide variety of human activities, and
potential canopy loss caused by infestations of the hemlock woolly
adelgid.
Unit FK8: Wolf River and Town Branch, Pickett and Fentress Counties,
Tennessee
Unit FK8 includes 41.0 rkm (25.5 rmi) of the Wolf River from its
inundation at Dale Hollow Lake in Pickett County, TN, upstream to its
confluence with Delk Creek in Fentress County, TN, and 3.4 rkm (2.0
rmi) of Town Branch from its confluence with Wolf River upstream to its
headwaters in Pickett County, TN. The unit is within the Cumberland
River system and is critical habitat for the fluted kidneyshell. This
unit is included in the geographical area occupied by the species at
the time of listing. A portion of this unit (6 rkm (4
[[Page 59573]]
rmi)) is in public ownership (U.S. Army Corps of Engineers lands
adjacent to Dale Hollow Reservoir and Sgt. Alvin C. York State Historic
Park), but the majority is in private ownership.
The channel within Unit FK8 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2) and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects associated with coal mining, silviculture-
related activities, natural gas and oil exploration activities in
headwater reaches, agricultural activities (livestock), lack of
adequate riparian buffers, construction and maintenance of State and
county roads, off-road vehicle use and other recreational activities,
nonpoint source pollution originating in headwater reaches, and
potential canopy loss caused by infestations of the hemlock woolly
adelgid.
Unit FK9: West Fork Obey River, Overton County, Tennessee
Unit FK9 includes approximately 19 rkm (12 rmi) of the West Fork
Obey River from the Highway 52 Bridge crossing upstream to its
confluence with Dry Hollow Creek in Overton County, TN. The unit is
within the Cumberland River system and is critical habitat for the
fluted kidneyshell. This unit is included in the geographical area
occupied by the species at the time of listing. This unit is located
almost entirely on private land, except for any small amount that is
publicly owned in the form of bridge crossings and road easements.
The channel within Unit FK9 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects associated with coal mining, silviculture-
related activities, natural gas and oil exploration activities in
headwater reaches, off-road vehicle use and other recreational
activities, agricultural activities (livestock), lack of adequate
riparian buffers, construction and maintenance of State and county
roads, nonpoint source pollution originating in headwater reaches, and
potential canopy loss caused by infestations of the hemlock woolly
adelgid.
Unit FK10: Indian Creek, Tazewell County, Virginia
Unit FK10 includes 6.7 rkm (4.2 rmi) of Indian Creek from its
confluence with the Clinch River upstream to the fourth Norfolk
Southern Railroad crossing at Van Dyke in Tazewell County, VA. The unit
is within the Tennessee River system and is critical habitat for the
fluted kidneyshell. This unit is included in the geographical area
occupied by the species at the time of listing. This unit is located
almost entirely on private land, except for any small amount that is
publicly owned in the form of bridge crossings and road easements. The
unit completely overlaps critical habitat for the Cumberlandian
combshell, rough rabbitsfoot, purple bean, and oyster mussel (69 FR
53136).
The channel within Unit FK10 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
hosts for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects associated with residential development, coal
mining, silviculture-related activities, natural gas and oil
exploration activities in headwater reaches, illegal off-road vehicle
use and other recreational activities, and nonpoint source pollution
originating in headwater reaches.
Unit FK11: Little River, Russell and Tazewell Counties, Virginia
Unit FK11 includes approximately 50 rkm (31 rmi) of Little River
from its confluence with the Clinch River in Russell County, VA,
upstream to its confluence with Liberty and Maiden Spring Creeks in
Tazewell County, VA. The unit is within the Tennessee River system and
is critical habitat for the fluted kidneyshell. This unit is included
in the geographical area occupied by fluted kidneyshell at the time of
listing. This unit is located almost entirely on private land, except
for any small amount that is publicly owned in the form of bridge
crossings and road easements. The Nature Conservancy also owns a small
portion of adjacent property.
The channel within Unit FK11 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
hosts for the fluted kidneyshell and slabside pearlymussel, are known
from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitats may
require special management considerations or protection to address
potential adverse effects associated with silviculture-related
activities, lack of adequate riparian buffers, natural gas and oil
exploration activities in headwater reaches, and nonpoint source
pollution originating in headwater reaches.
Unit FK12 and SP1: North Fork Holston River, Smyth and Bland Counties,
Virginia
Unit FK12 and SP1 includes approximately 67 rkm (42 rmi) of the
North Fork Holston River from its confluence with Beaver Creek,
upstream of Saltville, in Smyth County, VA, upstream to Ceres, Bland
County, VA. The unit is within the Tennessee River system and is
critical habitat for the fluted kidneyshell and slabside pearlymussel.
This unit is included in the geographical area occupied by both species
at the time of listing. This unit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings, road easements, and a small portion that is adjacent
to the George Washington and Jefferson National Forests. The Nature
Conservancy and the Virginia Outdoors Foundation also own a small
portion of adjacent property. A portion of this unit (58 rkm (36 rmi))
has been designated as a NEP for the yellowfin madtom (53 FR 29335).
The channel within Unit FK12 and SP1 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the fluted kidneyshell and slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with
agricultural activities, silviculture-related activities, natural gas
and oil exploration activities in headwater reaches, lack of adequate
riparian buffers, construction and maintenance of State and county
roads,
[[Page 59574]]
and nonpoint source pollution originating in headwater reaches.
Unit FK13 and SP2: Middle Fork Holston River, Washington, Smyth, and
Wythe Counties, Virginia
Unit FK13 and SP2 includes approximately 89 rkm (55 rmi) of the
Middle Fork Holston River from its inundation at South Holston Lake in
Washington County, VA, upstream to its headwaters in Wythe County, VA.
The unit is within the Tennessee River system and is critical habitat
for the fluted kidneyshell and slabside pearlymussel. This unit is
included in the geographical area occupied by both the fluted
kidneyshell and slabside pearlymussel at the time of listing. This unit
is located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings and road
easements.
The channel within Unit FK13 and SP2 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the fluted kidneyshell and slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with
agricultural activities, lack of adequate riparian buffers,
silviculture-related activities, and nonpoint source pollution.
Unit FK14 and SP3: Big Moccasin Creek, Scott and Russell Counties,
Virginia
Unit FK14 and SP3 includes approximately 33 rkm (21 rmi) of Big
Moccasin Creek from the Highway 71 Bridge crossing in Scott County, VA,
upstream to the Route 612 Bridge crossing near Collinwood in Russell
County, VA. The unit is within the Tennessee River system and is
critical habitat for the fluted kidneyshell and slabside pearlymussel.
This unit is included in the geographical area occupied by slabside
pearlymussel at the time of listing. This unit is considered unoccupied
by the fluted kidneyshell, but within the species' historical range.
Live fluted kidneyshell have not been collected in Big Moccasin Creek
since the early 1900s (Ortmann 1918, p. 608). However, this unit is
designated as critical habitat for the fluted kidneyshell because it is
considered essential for the conservation of the species (see Criteria
Used To Identify Critical Habitat above for our rationale). This unit
is located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings and road
easements.
The channel within Unit FK14 and SP3 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the slabside pearlymussel, are known from this
unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitats may
require special management considerations or protection to address
potential adverse effects associated with agricultural activities
(livestock), lack of adequate riparian buffers, silviculture-related
activities, natural gas and oil exploration activities in headwater
reaches, illegal off-road vehicle use and other recreational
activities, and nonpoint source pollution originating in headwater
reaches.
Unit FK15: Copper Creek, Scott County, Virginia
Unit FK15 includes 55.5 rkm (34.5 rmi) of Copper Creek from its
confluence with the Clinch River upstream to the Highway 71 Bridge
crossing in Scott County, VA. The unit is within the Tennessee River
system and is critical habitat for the fluted kidneyshell. This unit is
included in the geographical area occupied by the species at the time
of listing. This unit is located almost entirely on private land,
except for any small amount that is publicly owned in the form of
bridge crossings and road easements. A portion of this unit (21 rkm (13
rmi)) has been designated as critical habitat for the Cumberlandian
combshell, rough rabbitsfoot, purple bean, and oyster mussel, and this
unit (55.5 rkm (34.5 rmi)) also makes up a portion of the designated
critical habitat for the yellowfin madtom (42 FR 45526, 42 FR 47840, 69
FR 53136).
The channel within Unit FK15 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
hosts for the fluted kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell and its habitat may
require special management considerations or protection to address
potential adverse effects associated with agricultural activities
(livestock), silviculture-related activities, lack of adequate riparian
buffers, construction and maintenance of State and county roads, and
nonpoint source pollution originating in headwater reaches.
Unit FK16 and SP4: Clinch River, Hancock County, Tennessee, and Scott,
Russell, and Tazewell Counties, Virginia
Unit FK16 and SP4 includes approximately 263 rkm (163 rmi) of the
Clinch River from rkm 255 (rmi 159) immediately below Grissom Island in
Hancock County, TN, upstream to its confluence with Indian Creek near
Cedar Bluff, Tazewell County, VA. The unit is within the Tennessee
River system and is critical habitat for the fluted kidneyshell and
slabside pearlymussel. This unit is included in the geographical area
occupied by both species at the time of listing. Approximately 6 rkm (4
rmi) of this unit is in public ownership, including portions of the
Kyles Ford State Managed Area, George Washington National Forest,
Jefferson National Forest, Cleveland Barrens State Natural Area
Preserve (SNAP), and the Pinnacle SNAP. The Nature Conservancy also
owns a small portion of adjacent property. The unit completely overlaps
critical habitat for the Cumberlandian combshell, rough rabbitsfoot,
purple bean, and oyster mussel, and the entire length of this unit has
been designated as critical habitat for the slender chub and yellowfin
madtom (42 FR 45526, 42 FR 47840, 69 FR 53136).
The channel within Unit FK16 and SP4 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the fluted kidneyshell and slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with coal
mining, silviculture-related activities, natural gas and oil
exploration activities in headwater reaches, agricultural activities
(livestock), lack of adequate riparian buffers, construction and
maintenance of State and county roads, and nonpoint source pollution
originating in headwater reaches.
Unit FK17 and SP5: Powell River, Claiborne and Hancock Counties,
Tennessee, and Lee County, Virginia
Unit FK17 and SP5 includes approximately 153 rkm (95 rmi) of the
[[Page 59575]]
Powell River from the U.S. 25E Bridge in Claiborne County, TN, upstream
to rkm 256 (rmi 159) (upstream of Rock Island in the vicinity of Pughs)
in Lee County, VA. The unit is within the Tennessee River system and is
critical habitat for the fluted kidneyshell and slabside pearlymussel.
This unit is included in the geographical area occupied by both species
at the time of listing. This unit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings, road easements, and a small portion that is adjacent
to the Cedars SNAP. The Nature Conservancy also owns a small portion of
adjacent property. The unit completely overlaps critical habitat for
the Cumberlandian combshell, rough rabbitsfoot, purple bean, and oyster
mussel, and the entire length of this unit has been designated as
critical habitat for the slender chub and yellowfin madtom (42 FR
45526, 42 FR 47840, 69 FR 53136).
The channel within Unit FK17 and SP5 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the fluted kidneyshell and slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with coal
mining, natural gas and oil exploration activities in headwater
reaches, agricultural activities (livestock), lack of adequate riparian
buffers, construction and maintenance of State and county roads, and
nonpoint source pollution originating in headwater reaches.
Unit FK18 and SP6: Nolichucky River, Cocke, Hamblen, and Greene
Counties, Tennessee
Unit FK18 and SP6 includes approximately 52 rkm (32 rmi) of the
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi)
upstream of Enka Dam, where it divides Hamblen and Cocke Counties, TN,
upstream to its confluence with Pigeon Creek, just upstream of the
Highway 321 Bridge crossing, in Greene County, TN. The unit is within
the Tennessee River system and is critical habitat for the fluted
kidneyshell and slabside pearlymussel. This unit is included in the
geographical area occupied by both species at the time of listing. The
fluted kidneyshell population is a result of a successful
reintroduction program implemented by TWRA and other conservation
partners. This unit is located almost entirely on private land, except
for any small amount that is publicly owned in the form of bridge
crossings, road easements, and a small portion that is within Mullins
Island Wildlife Management Area. A portion of this unit (8 rkm (5 rmi))
has been designated as a critical habitat for the oyster mussel and
Cumberlandian combshell (69 FR 53136).
The channel within Unit FK18 and SP6 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the slabside pearlymussel and the fluted
kidneyshell, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with
agricultural activities, silviculture-related activities, rock mining,
lack of adequate riparian buffers, construction and maintenance of
State and county roads, and nonpoint source pollution originating in
headwater reaches.
Unit FK19: Holston River, Knox, Grainger, and Jefferson Counties,
Tennessee
Unit FK19 includes approximately 85 rkm (53 rmi) of the Holston
River from its confluence with the French Broad River in Knox County,
TN, upstream to the base of Cherokee Dam at rkm 83.7 (rmi 52.3) along
the Grainger and Jefferson County, TN, line. The unit is within the
Tennessee River system. This unit is considered unoccupied by the
fluted kidneyshell and slabside pearlymussel, but within the species'
historical ranges. Live fluted kidneyshell have not been collected in
the Holston River since the early 1900s (Ortmann 1918, p. 614). As
discussed below, we consider Unit FK19 essential for the conservation
of the fluted kidneyshell, but not the slabside pearlymussel, and so it
is designated as critical habitat only for the fluted kidneyshell. This
unit is located almost entirely on private land, except for any small
amount that is publicly owned in the form of bridge crossings and road
easements. The unit completely overlaps a designated nonessential
experimental population for 15 mussels, 1 snail, and 5 fishes (72 FR
52434).
We consider this unit essential for the conservation of the fluted
kidneyshell due to the need to re-establish the species within other
portions of its historical range in order to reduce threats from
stochastic events. Although live fluted kidneyshell have not been
collected in the Holston River since the early 1900s (Ortmann 1918, p.
614), the Tennessee Valley Authority (TVA) has improved conditions for
aquatic species within this unit. Between 1988 and 1995, TVA
implemented reservoir release improvements below Cherokee Dam on the
Holston River. These improvements included the establishment of minimum
flows and increasing the amount of dissolved oxygen in the tailwater
below the reservoir (Scott et al. 1996, p. 21).
The unit currently supports populations of three federally listed
species (threatened snail darter and endangered pink mucket and
sheepnose). In addition, other mussel species co-occur with these
species along with a diverse fish fauna, including hosts for the fluted
kidneyshell. These host fishes are bottom-dwelling species that are
able to move into refugia of low flows during high discharges from the
hydropower dam upstream. Therefore, the fluted kidneyshell glochidia
may come into contact and infest the host fishes. The slabside
pearlymussel and its host fishes are known from the Holston River
drainage; however, hydropower operations make this habitat unsuitable
for mid-water column fishes, such as the shiners that are hosts for the
slabside pearlymussel (Layzer and Scott 2006, pp. 481, 488-9).
Therefore, we are not designating Unit FK19 as critical habitat for the
slabside pearlymussel at this time.
Unit FK20: French Broad River, Knox and Sevier Counties, Tennessee
Unit FK20 includes approximately 56 rkm (35 rmi) of the French
Broad River from its confluence with the Holston River in Knox County,
TN, upstream to the base of Douglas Dam at rkm 51.7 (rmi 32.3) in
Sevier County, TN. The unit is within the Tennessee River system. This
unit is considered unoccupied by the fluted kidneyshell and slabside
pearlymussel, but within the species' historical ranges. Fluted
kidneyshell are only known from archaeological records in the French
Broad River (Parmalee 1988 in Layzer and Scott 2006, pp. 481-482). As
discussed below, we consider Unit FK20 essential for the conservation
of the fluted kidneyshell, but not the slabside pearlymussel, and so it
is designated as critical habitat only for
[[Page 59576]]
the fluted kidneyshell. This unit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings and road easements and a small portion that is within
Forks of the River Wildlife Management Area. The unit completely
overlaps a NEP for 15 mussels, 1 snail, and 5 fishes (72 FR 52434).
We consider this unit essential for the conservation of the fluted
kidneyshell due to the need to re-establish the species within other
portions of its historical range in order to reduce threats from
stochastic events. Fluted kidneyshell are only known from
archaeological records in the French Broad River (Parmalee 1988 in
Layzer and Scott 2006, pp. 481-482). However, between 1987 and 1995,
TVA implemented reservoir release improvements below Douglas Dam on the
French Broad River. These improvements included the establishment of
minimum flows and increasing the amount of dissolved oxygen in the
tailwater below the reservoir (Scott et al. 1996, pp. 11-12), improving
conditions for the fluted kidneyshell and other aquatic species.
The unit does currently support populations of the federally
threatened snail darter and endangered pink mucket. In addition, other
mussel species co-occur with these species and a diverse fish fauna,
including hosts for the fluted kidneyshell. These host fishes are
bottom-dwelling species that are able to move into refugia of low flows
during high discharges from the hydropower dam upstream. Therefore, the
fluted kidneyshell glochidia may come into contact and infest the host
fishes. The slabside pearlymussel and its host fishes are known from
the French Broad River drainage; however, hydropower operations make
this habitat unsuitable for mid-water column fishes, such as the
shiners that are hosts for the slabside pearlymussel (Layzer and Scott
2006, pp. 481, 488-9). Therefore, we are not designating Unit FK20 as
critical habitat for the slabside pearlymussel at this time.
Unit FK21 and SP7: Hiwassee River, Polk County, Tennessee
Unit FK21 and SP7 includes approximately 24 rkm (15 rmi) of the
Hiwassee River from the Highway 315 Bridge crossing upstream to the
Highway 68 Bridge crossing in Polk County, TN. The unit is within the
Tennessee River system and is critical habitat for the fluted
kidneyshell and slabside pearlymussel. This unit is included in the
geographical area occupied by slabside pearlymussel at the time of
listing. This unit is considered unoccupied by the fluted kidneyshell
at the time of listing, but within the species' historical range.
Fluted kidneyshell are only known from archaeological records in the
Hiwassee River (Parmalee and Bogan 1998, p. 205). This unit is
considered essential for the conservation of the fluted kidneyshell
(see Criteria Used To Identify Critical Habitat above for our
rationale). A portion of this unit is considered a ``cut-off'' reach,
because most of the water flow bypasses the reach through a tunnel from
Apalachia Dam to the Apalachia powerhouse for the production of
electricity. This unit is located entirely on federal lands within the
Cherokee National Forest (CNF). Land and resource management decisions
and activities within the CNF are guided by CNF's LRMP (USFS 2004b, pp.
28-37, entire).
The channel within Unit FK21 and SP7 has an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2). Diverse fish fauna, including fish hosts for the slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitats may
require special management considerations or protection to address
potential adverse effects associated with silviculture-related
activities, nonpoint source pollution, water diversion through
Apalachia tunnel, and potential canopy loss caused by infestations of
the hemlock woolly adelgid. Another threat to the species and their
habitat which may require special management of the PCEs is the
potential for significant changes in the existing flow regime and water
quality due to upstream impoundment. As discussed in the final listing
rule published elsewhere in today's Federal Register under Summary of
Factors Affecting the Species, ``Impoundments,'' mollusk declines below
dams are associated with changes and fluctuation in flow regime,
scouring and erosion, reduced dissolved oxygen levels and water
temperatures, and changes in resident fish assemblages. These
alterations can cause mussel declines for many miles below the dam.
Unit SP8: Sequatchie River, Marion, Sequatchie, and Bledsoe Counties,
Tennessee
Unit SP8 includes approximately 151 rkm (94 rmi) of the Sequatchie
River from the Highway 41, 64, 72, 2 Bridge crossing in Marion County,
TN, upstream to the Ninemile Cross Road Bridge crossing in Bledsoe
County, TN. The unit is within the Tennessee River system. This unit is
included in the geographical area occupied by slabside pearlymussel at
the time of listing. This unit is located almost entirely on private
land, except for any small amount that is publicly owned in the form of
bridge crossings and road easements.
Unit SP8 has an abundance of riffle habitats (PCE 1), with
relatively silt-free sand and gravel substrates (PCE 2), and adequate
instream flows (PCE 3). A diverse fish fauna, including fish hosts for
the slabside pearlymussel, are known from this unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitat may
require special management considerations or protection to address
potential adverse effects caused by agricultural activities, coal
mining, silvicultural activities, lack of adequate riparian buffers,
construction and maintenance of State and county roads, and nonpoint
source pollution arising from a wide variety of human activities.
Unit SP9: Paint Rock River, Madison, Marshall, and Jackson Counties,
Alabama
Unit SP9 includes approximately 86 rkm (53 rmi) of the Paint Rock
River from the Highway 431 Bridge crossing along the Madison and
Marshall County line, AL, upstream to the confluence of Estill Fork and
Hurricane Creek in Jackson County, AL. The unit includes approximately
11 rkm (7 rmi) of Larkin Fork from its confluence with the Paint Rock
River upstream to its confluence with Bear Creek, in Jackson County,
AL; approximately 13 rkm (8 rmi) of Estill Fork from its confluence
with the Paint Rock River upstream to its confluence with Bull Run in
Jackson County, AL; and approximately 16 rkm (10 rmi) of Hurricane
Creek from its confluence with the Paint Rock River upstream to its
confluence with Turkey Creek in Jackson County, AL. The unit is within
the Tennessee River system and is critical habitat for the slabside
pearlymussel. The unit is included in the geographical area occupied by
the slabside pearlymussel at the time of listing. Approximately 6 rkm
(4 rmi) of this unit is federally or State-owned and adjacent to the
Fern Cave National Wildlife Refuge and Walls of Jericho State
Management Area; the remainder is privately owned, including a small
parcel owned by the Alabama Land Trust. A portion of this unit (80 rkm
(50 rmi)) is critical habitat for the rabbitsfoot (78 FR 57076).
The channel within Unit SP9 is relatively stable, with suitable
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE
1), with relatively silt-free sand and gravel substrates (PCE
[[Page 59577]]
2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the slabside pearlymussel, are known from this
unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitat may
require special management considerations or protection to address
potential adverse effects associated with agricultural activities,
silvicultural activities, off-road vehicle use and other recreational
activities, and nonpoint source pollution originating in headwater
reaches.
Unit FK22 and SP10: Elk River, Limestone County, Alabama, and Giles,
Lincoln, Franklin, and Moore Counties, Tennessee
Unit FK22 and SP10 includes approximately 164 rkm (102 rmi) of the
Elk River from its inundation at Wheeler Lake in Limestone County, AL,
upstream to its confluence with Farris Creek at the dividing line
between Franklin and Moore Counties, TN. The unit is within the
Tennessee River system and is critical habitat for the fluted
kidneyshell and slabside pearlymussel. This unit is included in the
geographical area occupied by slabside pearlymussel at the time of
listing. This unit is considered unoccupied by the fluted kidneyshell,
but within the species' historical range. Live fluted kidneyshell have
not been collected in the Elk River since the late-1960s (Isom et al.
1973, p. 440). The unit is considered essential for the conservation of
the fluted kidneyshell (see Criteria Used To Identify Critical Habitat
above for our rationale). This unit is located almost entirely on
private land, except for any small amount that is publicly owned in the
form of bridge crossings and road easements and a small portion that is
within TVA-owned lands near Wheeler Reservoir.
Unit FK22 and SP10 has an abundance of riffle habitats (PCE 1),
with relatively silt-free sand and gravel substrates (PCE 2), and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
hosts for the slabside pearlymussel, are known from this unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitats may
require special management considerations or protection to address
potential adverse effects associated with hydropower generation from
Tims Ford Dam, agriculture, nonpoint source pollution, and instream
gravel mining. Another threat to the species and their habitat which
may require special management of the PBFs is the potential for
significant changes in the existing flow regime and water quality due
to upstream impoundment. As discussed in the final listing rule
published elsewhere in today's Federal Register under Summary of
Factors Affecting the Species, ``Impoundments,'' mollusk declines below
dams are associated with changes and fluctuation in flow regime,
scouring and erosion, reduced dissolved oxygen levels and water
temperatures, and changes in resident fish assemblages. These
alterations can cause mussel declines for many miles below the dam.
Unit SP11: Bear Creek, Colbert County, Alabama, and Tishomingo County,
Mississippi
Unit SP11 includes approximately 42 rkm (26 rmi) of Bear Creek from
its inundation at Pickwick Lake at rkm 37 (rmi 23) in Colbert County,
AL, upstream through Tishomingo County, MS, and ending at the
Mississippi/Alabama State line. The unit is within the Tennessee River
system and is critical habitat for the slabside pearlymussel. This unit
is included in the geographical area occupied by the slabside
pearlymussel at the time of listing. This unit is located almost
entirely on private land, except for any small amount that is publicly
owned in the form of bridge crossings and road easements, and that
within Tishomingo State Park and the Natchez Trace Parkway. The unit
completely overlaps critical habitat for the oyster mussel and
Cumberlandian combshell (69 FR 53136), and overlaps with a portion (42
rkm (26 rmi)) of the critical habitat unit for the rabbitsfoot (78 FR
57076).
The channel within Unit SP11 has an abundance of riffle habitats
(PCE 1), with relatively silt-free sand and gravel substrates (PCE 2),
and adequate instream flows (PCE 3). A diverse fish fauna, including
fish hosts for the slabside pearlymussel, are known from this unit (PCE
5).
Within this unit, the slabside pearlymussel and its habitat may
require special management considerations or protection to address
potential adverse effects associated with releases from upstream
impoundments, agriculture, and nonpoint source pollution originating in
headwater reaches.
Unit FK23 and SP12: Duck River, Humphreys, Perry, Hickman, Maury,
Marshall, and Bedford Counties, Tennessee
Unit FK23 and SP12 includes approximately 348 rkm (216 rmi) of the
Duck River from its inundation at Kentucky Lake in Humphreys County,
TN, upstream to its confluence with Flat Creek near Shelbyville in
Bedford County, TN. The unit is within the Tennessee River system and
is critical habitat for the fluted kidneyshell and slabside
pearlymussel. This unit is included in the geographical area occupied
by both species at the time of listing. The fluted kidneyshell
population is a result of a successful reintroduction program
implemented by TWRA and other conservation partners, resulting in the
recruitment of the species in the Duck River. Approximately 64 rkm (39
rmi) of this unit is federally or State-owned and adjacent to the
Tennessee National Wildlife Refuge, Natchez Trace Parkway, Yanahli
Wildlife Management Area, and Henry Horton State Park; the remainder is
privately owned. A portion of this unit (74 rkm (46 rmi)) has been
designated as a critical habitat for the oyster mussel and
Cumberlandian combshell (69 FR 53136) and a portion of this unit (235
rkm (146 rmi)) is critical habitat for the rabbitsfoot (78 FR 57076).
The channel within Unit FK23 and SP12 is relatively stable, with
suitable instream habitat (PCE 1). There is an abundance of riffle
habitats (PCE 1), with relatively silt-free sand and gravel substrates
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna,
including fish hosts for the fluted kidneyshell and slabside
pearlymussel, are known from this unit (PCE 5).
Within this unit, the fluted kidneyshell, slabside pearlymussel,
and their habitats may require special management considerations or
protection to address potential adverse effects associated with
agricultural activities (livestock), water withdrawals, lack of
adequate riparian buffers, construction and maintenance of State and
county roads, and nonpoint source pollution originating in headwater
reaches.
Unit FK24 and SP13: Buffalo River, Humphreys and Perry Counties,
Tennessee
Unit FK24 and SP13 includes approximately 50 rkm (31 rmi) of the
Buffalo River from its confluence with the Duck River in Humphreys
County, TN, upstream to its confluence with Cane Creek in Perry County,
TN. The unit is within the Tennessee River system and is critical
habitat for the fluted kidneyshell and slabside pearlymussel. This unit
is included in the geographical area occupied by slabside pearlymussel
at the time of listing. This unit is considered unoccupied by the
fluted kidneyshell, but within the species' historical range. Live
fluted kidneyshell have not been collected in the Buffalo River since
the
[[Page 59578]]
early 1920s (Ortmann 1924, p. 28). The unit is considered essential for
the conservation of the fluted kidneyshell (see Criteria Used To
Identify Critical Habitat above for our rationale). This unit is
located almost entirely on private land, except for any small amount
that is publicly owned in the form of bridge crossings and road
easements.
Unit FK24 and SP13 has an abundance of riffle habitats (PCE 1) and
adequate instream flows (PCE 3). A diverse fish fauna, including fish
hosts for the slabside pearlymussel, are known from this unit (PCE 5).
Within this unit, the slabside pearlymussel and its habitats may
require special management considerations or protection to address
potential adverse effects associated with agriculture, destabilized
substrates, and nonpoint source pollution.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species listed under the Act
or result in the destruction or adverse modification of designated
critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeal have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)),
and we do not rely on this regulatory definition when analyzing whether
an action is likely to destroy or adversely modify critical habitat.
Under the provisions of the Act, the key factor in determining whether
an action will destroy or adversely modify critical habitat is whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions that require a Federal
permit (such as a permit from the U.S. Army Corps of Engineers under
section 404 of the CWA (33 U.S.C. 1251 et. seq.) or a permit from the
Service under section 10 of the Act) or that involve some other Federal
action (such as funding from the Federal Highway Administration,
Federal Aviation Administration, or the Federal Emergency Management
Agency). Federal actions not affecting listed species or critical
habitat, and actions on State, tribal, local, or private lands that are
not federally funded or authorized, do not require section 7
consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the PBFs to an
extent that appreciably reduces the conservation value of critical
habitat for fluted kidneyshell or slabside pearlymussel. As discussed
above, the role of critical habitat is to support life-history needs
and provide for the conservation of these species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the fluted kidneyshell or slabside pearlymussel. These
activities include, but are not limited to:
(1) Actions that would alter the geomorphology of their stream and
river habitats. Such activities could include, but are not limited to,
instream excavation or dredging, impoundment, channelization, sand and
gravel mining, clearing riparian vegetation, and discharge of fill
materials. These activities could cause aggradation or degradation of
the channel bed elevation or significant bank erosion and result in
entrainment or burial of these mussels and could cause other direct or
cumulative adverse effects to these species and their life cycles.
(2) Actions that would significantly alter the existing flow regime
where these species occur. Such activities could include, but are not
limited to, impoundment, urban development, water diversion, water
withdrawal,
[[Page 59579]]
water draw-down, and hydropower generation. These activities could
eliminate or reduce the habitat necessary for growth and reproduction
of these mussels and their fish hosts.
(3) Actions that would significantly alter water chemistry or water
quality (e.g., temperature, pH, contaminants, and excess nutrients).
Such activities could include, but are not limited to, hydropower
discharges, or the release of chemicals, biological pollutants, or
heated effluents into surface water or connected groundwater at a point
source or by dispersed release (nonpoint source). These activities
could alter water conditions that are beyond the tolerances of these
mussels and their fish hosts or both, and result in direct or
cumulative adverse effects to the species throughout their life cycles.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects, gravel and sand mining, oil and gas
development, coal mining, livestock grazing, timber harvest, and other
watershed and floodplain disturbances that release sediments or
nutrients into the water. These activities could eliminate or reduce
habitats necessary for the growth and reproduction of these mussels or
their fish hosts or both, by causing excessive sedimentation and burial
of the species or their habitats, or nutrification leading to excessive
filamentous algal growth. Excessive filamentous algal growth can cause
reduced nighttime dissolved oxygen levels through respiration, and
prevent juvenile mussels from settling into stream sediments.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.''
There are no Department of Defense lands with a completed INRMP
within the critical habitat designation. Therefore, we are not
exempting any lands from this final designation of critical habitat for
the fluted kidneyshell or slabside pearlymussel pursuant to section
4(a)(3)(B)(i) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a DEA of the proposed critical
habitat designation and related factors (RTI International 2013a). The
draft analysis was made available for public review from April 29
through May 29, 2013 (78 FR 25041). Following the close of the comment
period, a final analysis of the potential economic effects of the
designation (FEA) was developed, taking into consideration the public
comments and any new information (RTI International 2013b). The FEA is
summarized below and is available at http://www.regulations.gov or by
contacting the Tennessee Ecological Services Field Office directly (see
FOR FURTHER INFORMATION CONTACT).
The intent of the FEA is to evaluate the economic impacts of all
potential conservation efforts for the fluted kidneyshell and slabside
pearlymussel; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the final critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (e.g., under the Federal listing and other Federal, State,
and local regulations). The baseline, therefore, represents the costs
incurred regardless of whether critical habitat is designated. The
``with critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat. The analysis forecasts both
baseline and incremental impacts likely to occur with the designation
of critical habitat. The FEA provides estimated costs of the
foreseeable potential economic impacts of the critical habitat
designation for these two species over the next 20 years, which was
determined to be the appropriate period for analysis because planning
information available to forecast activity levels for projects beyond a
20-year timeframe is limited.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. The FEA quantifies economic impacts of fluted
kidneyshell and slabside pearlymussel conservation efforts related to
section 7 consultation for the following categories of activity: (1)
Road maintenance and construction; (2) dam operation; (3) commercial,
industrial, residential, and associated utility development; (4)
agricultural and recreational development; (5) mining;
[[Page 59580]]
(6) Federal management plan administration; (7) State water quality
standards; and (8) restoration and conservation. The FEA evaluates
potential economic impacts of the designation, considering land
ownership, reasonably foreseeable land use activities, potential
Federal agency actions within the area and section 7 consultation
requirements, baseline conservation measures (i.e., measures that would
be implemented regardless of the critical habitat designation), and
incremental conservation measures (i.e., measures that would be
attributed exclusively to the critical habitat designation).
The present value of the total incremental cost of critical habitat
designation is estimated in the FEA at $3.5 million over 20 years
assuming a 7 percent discount rate, or $175,000 on an annualized basis.
Road maintenance and construction activities are likely to be subject
to the greatest incremental impacts at $1.94 million over 20 years,
followed by commercial, industrial, residential, and associated utility
development at $1.1 million; restoration and conservation at $221,000;
mining at $132,000; agricultural and recreational development at
$75,900; Federal management plan administration at $24,200; dam
operation at $21,500; and State water quality standards at $6,800.
Approximately 55 percent of direct incremental costs are estimated to
result from future consultations for road maintenance and construction
projects. Please refer to the FEA (http://www.regulations.gov at Docket
No. FWS-R4-ES-2013-0026) for a more detailed discussion of potential
economic impacts.
An additional $400,000 in indirect incremental costs associated
with water quality permitting for road maintenance and construction is
estimated for the unoccupied Unit FK3 (Rockcastle River, Kentucky).
Approximately 75 percent of the indirect incremental costs are
estimated to result from consultations in the three units that are not
occupied by other federally listed species (i.e., Wolf River and Town
Branch, and West Fork Obey River, TN).
The FEA did not identify any disproportionate costs that are likely
to result from the designation. Consequently, the Secretary is not
exerting her discretion to exclude any areas from this designation of
critical habitat for the fluted kidneyshell or slabside pearlymussel
based on economic impacts.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that no lands within the designation of critical habitat for
the fluted kidneyshell and slabside pearlymussel are owned or managed
by the Department of Defense, and, therefore, we anticipate no impact
on national security. Consequently, the Secretary is not exerting her
discretion to exclude any areas from the final designation based on
impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans that specifically address
management needs for the fluted kidneyshell or slabside pearlymussel,
and the final designation does not include any tribal lands or trust
resources. Therefore, we anticipate no impact on tribal lands, HCPs, or
other management plans from this critical habitat designation.
Accordingly, the Secretary is not exercising her discretion to exclude
any areas from the final designation based on other relevant impacts.
Nonessential Experimental Populations
Section 10(j) of the Act provides for the designation of specific
reintroduced populations of listed species as ``experimental
populations.'' This section was designed to provide us with an
innovative means to introduce a listed species into unoccupied habitat
within its historical range when doing so would foster the conservation
and recovery of the species. Experimental populations provide us with a
flexible, proactive means to meet recovery criteria while maintaining
the cooperation of stakeholders, such as other agencies,
municipalities, and landowners, which is essential for eventual success
of the reintroduced population.
When we designate a population as experimental, section 10(j) of
the Act requires that we determine whether that population is either
essential or nonessential to the continued existence of the species, on
the basis of the best available information. Nonessential experimental
populations (NEPs) located outside National Wildlife Refuge System or
National Park System lands are treated, for the purposes of section 7
of the Act, as if they are proposed for listing as a threatened
species, while within National Wildlife Refuges or National Parks the
species is treated as a threatened species. Threatened status allows us
to develop special regulations under section 4(d) of the Act that we
consider necessary and advisable for the protection of the species.
Moreover, section 7(a)(2) of the Act, which requires Federal agencies
to ensure that their activities are not likely to jeopardize the
continued existence of a listed species, would apply to the populations
on National Wildlife Refuge System and National Park System lands. On
the other hand, experimental populations determined to be ``essential''
to the survival of the species would be treated as threatened species
and remain subject to the consultation provisions of section 7(a)(2) of
the Act, whether or not they are located on national wildlife refuges
or parks.
As mentioned earlier in the unit descriptions and referenced in
Table 3, there are two NEPs for other listed aquatic species that
overlap with this critical habitat designation: the NEP for the
yellowfin madtom in the North Fork of the Holston River (53 FR 29335),
which overlaps with Units FK12 and SP1, and the NEP for 21 listed
aquatic species (including the yellowfin madtom) in the lower French
Broad and Holston Rivers (72 FR 52434), which overlaps with Units FK19
and FK20. These NEPs were not established specifically for the
conservation of the fluted kidneyshell or slabside pearlymussel, which
were candidate species when the NEP rules were published, but rather to
promote the reintroduction of their target listed species into
historical habitat. The NEPs would have to be amended through a
rulemaking process to include the fluted kidneyshell or slabside
pearlymussel.
The North Fork of the Holston River is considered occupied by both
the slabside pearlymussel and the fluted kidneyshell, presently
contains numerous PCEs (see Final Critical
[[Page 59581]]
Habitat Designation above), and is therefore being designated as
critical habitat. The lower Holston River (below Cherokee Dam) and
French Broad River (below Douglas Dam) are being designated as
unoccupied habitat for the fluted kidneyshell because we have
determined these river reaches are essential to the conservation of the
species (see Criteria Used To Identify Critical Habitat above for our
rationale). Both rivers provide some of the last remaining large river
habitat for the fluted kidneyshell. Since the NEPs do not provide any
level of protection to the fluted kidneyshell or slabside pearlymussel,
the Secretary is not exercising her discretion to exclude any areas
from the final designation based on the presence of existing NEPs.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C
801 et seq.), whenever an agency must 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 (small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities. In this
final rule, we are certifying that the critical habitat designation for
fluted kidneyshell and slabside pearlymussel will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as 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 on 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the critical habitat designation, but the per-entity
economic impact is not significant, the Service may certify. Likewise,
if the per-entity economic impact is likely to be significant, but the
number of affected entities is not substantial, the Service may also
certify.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the E.O. regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In conclusion, based on our interpretation of directly regulated
entities under the RFA and relevant case law, this designation of
critical habitat will only directly regulate Federal agencies which are
not by definition small business entities. As such, we certify that
this designation of critical habitat will not have a significant
economic impact on a substantial number of small business entities.
Therefore, a regulatory flexibility analysis is not required. However,
though not necessarily required by the RFA, in our FEA for this rule we
considered and evaluated the potential effects to third parties that
may be involved with consultations with Federal action agencies related
to this action.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species
are present, Federal agencies already are
[[Page 59582]]
required to consult with us under section 7 of the Act on activities
they authorize, fund, or carry out that may affect fluted kidneyshell
or slabside pearlymussel. Federal agencies also must consult with us if
their activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities (see Application of the ``Adverse
Modification'' Standard section).
In our FEA of the critical habitat designation (see ``Exclusions
Based on Economic Impacts,'' above), we evaluated the potential
economic effects on small business entities resulting from conservation
actions related to the designation of critical habitat of the fluted
kidneyshell and slabside pearlymussel (RTI 2013). The analysis is based
on the estimated impacts associated with the rulemaking as described in
Appendix A of the FEA and evaluates the potential for economic impacts
related to: Commercial, industrial, residential, and associated utility
development; agricultural and recreational development; mining; and
restoration and conservation.
The incremental costs over 20 years at a 7 percent discount rate
for project proponents in unoccupied critical habitat units are
estimated to be: $785,802 for commercial, industrial, residential, and
associated utility development; $26,395 for agricultural and
recreational development; $6,169 for mining; and $89,927 for
restoration and conservation. In summary, this FEA estimates a worst
case scenario of approximately $908,000 in impacts to all small
businesses within the study region over 20 years, discounted at 7
percent, with an annualized cost of approximately $85,736 across all
entities. It is unlikely that increased annual costs at these levels
will have a significant mpact on small entities in either occupied or
unoccupied critical habitat units. Please refer to the FEA of the
critical habitat designation for a more detailed discussion of
potential economic impacts (RTI 2013).
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
conclude that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for fluted
kidneyshell and slabside pearlymussel will not have a significant
economic impact on a substantial number of small entities, and a
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration, which include: (1) Reductions in crude oil
supply in excess of 10,000 barrels per day; (2) reductions in fuel
production in excess of 4,000 barrels per day; (3) reductions in coal
production in excess of 5 million tons per year; (4) reductions in
natural gas production in excess of 25 million cubic feet per year; (5)
reductions in electricity production in excess of 1 billion kilowatt
hours per year or in excess of 500 megawatts of installed capacity; (6)
increases in energy use required by the regulatory action that exceed
thresholds (1) through (6) above; (7) increases in the cost of energy
production in excess of one percent; (8) increases in the cost of
energy distribution in excess of one percent; and (9) other similarly
adverse outcomes.
Appendix A of the FEA discusses the potential for critical habitat
to affect the energy industry through the additional cost of
considering adverse modification in section 7 consultation. For coal
production, we estimated incremental costs of $132,000 over the next 20
years (7 percent discount rate), with 11 consultations anticipated
annually. Based on crude oil and natural gas production levels
occurring within critical habitat units and consultation history for
these activities, we do not expect the designation of critical habitat
for these two species to reduce production in excess of ``significant
adverse effects'' levels set by OMB. Finally, critical habitat
designation is not expected to result in the closure of any
hydroelectric facilities, so impacts to generation capacity are not
anticipated. Total incremental costs to hydroelectric dams are
estimated at approximately $21,000 over 20 years (7 percent discount
rate). Overall, the additional costs are unlikely to increase the costs
of energy production or distribution in the United States in excess of
one percent.
The energy analysis completed in the FEA and summarized above
highlights no significant adverse impacts to energy production in any
of the major sectors. Thus, based on information in the economic
analysis, no energy-related impacts associated with fluted kidneyshell
and slabside pearlymussel conservation activities within critical
habitat are expected. As such, the designation of critical habitat is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; Aid to Families with Dependent Children (AFDC) work programs;
Child Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal entities or private
[[Page 59583]]
parties. Under the Act, the only regulatory effect is that Federal
agencies must ensure that their actions do not destroy or adversely
modify critical habitat under section 7 of the Act. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply, nor would critical habitat shift the costs of the large
entitlement programs listed above onto State governments.
(2) This rule will not significantly or uniquely affect small
governments because these mussel species occur primarily in State-owned
river channels or in remote privately owned stream channels. The
designation of critical habitat imposes no obligations on State or
local governments. By definition, Federal agencies are not considered
small entities, although the activities they fund or permit may be
proposed or carried out by small entities. Consequently, the critical
habitat designation will not significantly or uniquely affect small
government entities. Therefore, a Small Government Agency Plan is not
required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the fluted kidneyshell and slabside pearlymussel
in a takings implications assessment.
Critical habitat designation does not affect landowner actions that
do not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. Based on the best available information, the
takings implications assessment concludes that the designation of
critical habitat for the fluted kidneyshell and slabside pearlymussel
does not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism summary
impact statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in Alabama, Kentucky,
Mississippi, Tennessee, and Virginia. We did not receive any comments
from any State agencies on the proposed rule. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, the rule
identifies the elements of PBFs essential to the conservation of the
fluted kidneyshell and slabside pearlymussel. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose 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
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (42 U.S.C. 4321 et seq.) in connection with designating critical
habitat under the Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same
[[Page 59584]]
controls as Federal public lands, to remain sensitive to Indian
culture, and to make information available to Tribes.
We have determined that there are no Tribal lands currently
occupied by the species that contain the PBFs essential to the
conservation of these species, and no Tribal lands unoccupied by the
fluted kidneyshell and slabside pearlymussel that are essential for the
conservation of these two species. Therefore, we are not designating
critical habitat for these species on Tribal lands.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the
Tennessee Ecological Services Field Office.
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]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding entries for ``Kidneyshell, fluted''
and ``Pearlymussel, slabside'' in alphabetical order under ``CLAMS'' to
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
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Kidneyshell, fluted.............. Ptychobranchus U.S.A. (AL, KY, TN, Entire............. E 825 17.95(f) NA
subtentum. VA).
* * * * * * *
Pearlymussel, slabside........... Pleuronaia U.S.A. (AL, KY, MS, Entire............. E 825 17.95(f) NA
dolabelloides. TN, VA).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (f) by adding entries for ``Fluted
Kidneyshell (Ptychobranchus subtentum)'' and ``Slabside Pearlymussel
(Pleuronaia dolabelloides)'' in that order immediately following the
entry for Altamaha spinymussel (Elliptio spinosa), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Fluted Kidneyshell (Ptychobranchus subtentum)
(1) Critical habitat units are depicted on the maps below for
Limestone County, Alabama; Jackson, Laurel, McCreary, Pulaski,
Rockcastle, and Wayne Counties, Kentucky; Bedford, Claiborne, Cocke,
Fentress, Franklin, Giles, Grainger, Greene, Hamblen, Hancock, Hickman,
Humphreys, Jefferson, Knox, Lincoln, Marshall, Maury, Moore, Morgan,
Overton, Perry, Pickett, Polk, Scott, and Sevier Counties, Tennessee;
and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington, and Wythe
Counties, Virginia.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of fluted
kidneyshell consist of five components:
(i) Riffle habitats within large, geomorphically stable stream
channels (channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation).
(ii) Stable substrates of sand, gravel, and cobble with low to
moderate amounts of fine sediment and containing flow refugia with low
shear stress.
(iii) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of rivers
with the floodplain, allowing the exchange of nutrients and sediment
for habitat maintenance, food availability for all life stages, and
spawning habitat for native fishes.
(iv) Water quality with low levels of pollutants and including a
natural temperature regime, pH (between 6.0 to 8.5), oxygen content
(not less than 5.0 milligrams/liter), hardness, and turbidity necessary
for normal behavior, growth, and viability of all life stages.
(v) The presence of abundant fish hosts, which may include the
barcheek darter, fantail darter, rainbow darter, redline darter,
bluebreast darter, dusky darter and banded sculpin, necessary for
recruitment of the fluted kidneyshell.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, dams, roads, and other paved areas) and the land
on which they are located existing within the legal boundaries on
October 28, 2013.
(4) Critical habitat map units. Data layers defining map units were
created with USGS National Hydrography Dataset (NHD+) GIS
data. The 1:100,000 river reach (route) files were used to calculate
river kilometers and miles. ESRIs ArcGIS 10.0 software was used to
determine longitude and latitude coordinates using decimal degrees. The
projection used in mapping all units
[[Page 59585]]
was USA Contiguous Albers Equal Area Conic USGS version, NAD 83,
meters. The following data sources were referenced to identify features
(like roads and streams) used to delineate the upstream and downstream
extents of critical habitat units: NHD+ flowline and
waterbody data, 2011 Navteq roads data, USA Topo ESRI online basemap
service, DeLorme Atlas and Gazetteers, and USGS 7.5 minute topographic
maps. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the field office Internet site
(http://www.fws.gov/cookeville), at http://www.regulations.gov at
Docket No. FWS-R4-ES-2013-0026, and at the Service's Tennessee Fish and
Wildlife Office. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) An overview of critical habitat locations for the fluted
kidneyshell in Alabama, Tennessee, Kentucky, and Virginia follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR26SE13.064
(6) Unit FK1: Horse Lick Creek, Rockcastle and Jackson Counties,
Kentucky.
(i) The unit includes approximately 19 river kilometers (rkm) (12
river miles (rmi)) of Horse Lick Creek, in Rockcastle and Jackson
Counties, KY. It includes the mainstem of Horse Lick Creek from its
confluence with the Rockcastle River (-84.13780, 37.31991) upstream to
Clover Bottom Creek (-84.12200, 37.40879).
(ii) Map of Units FK1 and FK2 follows:
[[Page 59586]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.065
(7) Unit FK2: Middle Fork Rockcastle River, Jackson County,
Kentucky.
(i) The unit includes 12.5 rkm (7.7 rmi) of the Middle Fork
Rockcastle River from its confluence with the Rockcastle River (-
84.11895, 37.33581) upstream to its confluence with Indian Creek and
Laurel Fork (-84.04897, 37.36765) in Jackson County, KY.
(ii) Map of Units FK1 and FK2 is provided at paragraph (6)(ii) of
this entry.
(8) Unit FK3: Rockcastle River, Pulaski, Laurel, and Rockcastle
Counties, Kentucky.
(i) The unit includes approximately 70 rkm (43 rmi) of the
Rockcastle River from the backwaters of Lake Cumberland near its
confluence with Cane Creek along the Laurel and Pulaski County line, KY
(-84.30594, 37.03423), upstream to its confluence with Horse Lick Creek
along the Laurel and Rockcastle County line, KY (-84.13766, 37.31944).
(ii) Map of Unit FK3 follows:
[[Page 59587]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.066
[[Page 59588]]
(9) Unit FK4: Buck Creek, Pulaski County, Kentucky.
(i) This unit includes 61 rkm (38 rmi) of Buck Creek from State
Route 192 (-84.42681, 37.05977) upstream to Route 328 (-84.55492,
37.32430), Pulaski County, KY.
(ii) Map of Unit FK4 follows:
[GRAPHIC] [TIFF OMITTED] TR26SE13.067
[[Page 59589]]
(10) Unit FK5: Rock Creek, McCreary County, Kentucky.
(i) The unit includes approximately 19 rkm (12 rmi) of Rock Creek
from its confluence with White Oak Creek (-84.69103, 36.65145) upstream
to the low water crossing at rkm 25.6 (rmi 15.9) (-84.58888, 36.70800)
in McCreary County, KY.
(ii) Map of Units FK5 and FK6 follows:
[GRAPHIC] [TIFF OMITTED] TR26SE13.068
(11) Unit FK6: Little South Fork Cumberland River, McCreary and
Wayne Counties, Kentucky.
(i) The unit includes 65.5 rkm (40.7 rmi) of the Little South Fork
Cumberland River from its confluence with the Big South Fork Cumberland
River (-84.58269, 36.82690), where it is the dividing line between
Wayne and McCreary Counties, upstream to its confluence with Dobbs
Creek (-84.85344, 36.62588) in Wayne County, KY.
(ii) Map of Units FK5 and FK6 is provided at paragraph (10)(ii) of
this entry.
(12) Unit FK7: Big South Fork Cumberland River, Fentress, Morgan,
[[Page 59590]]
and Scott Counties, Tennessee, and McCreary County, Kentucky.
(i) The unit includes approximately 45 rkm (28 rmi) of the Big
South Fork of the Cumberland River from its confluence with Laurel
Crossing Branch downstream of Big Shoals (-84.53642, 36.64114),
McCreary County, KY, upstream to its confluence with Clear Fork and New
River (-84.62394, 36.42475), Scott County, TN. This unit also includes
32.3 rkm (20.0 rmi) of Clear Fork from its confluence with the Big
South Fork and New River (-84.62394, 36.42475) in Scott County, TN,
upstream to its confluence with Crooked Creek (-84.78637, 36.32533)
along the Fentress and Morgan County line, TN. This unit also includes
14.7 rkm (9.1 rmi) of the New River from its confluence with the Big
South Fork (-84.62394, 36.42475) upstream to the Highway 27 Bridge
crossing (-84.55290, 36.38279) in Scott County, TN.
(ii) Map of Unit FK7 follows:
[GRAPHIC] [TIFF OMITTED] TR26SE13.069
[[Page 59591]]
(13) Unit FK8: Wolf River and Town Branch, Pickett and Fentress
Counties, Tennessee.
(i) The unit includes 41.0 rkm (25.5 rmi) of the Wolf River from
its inundation at Dale Hollow Lake (-85.14414, 36.60670) in Pickett
County, TN, upstream to its confluence with Delk Creek (-84.91064,
36.52784) in Fentress County, TN. This unit also includes 3.4 rkm (2.0
rmi) of Town Branch from its confluence with Wolf River (-85.11787,
36.58321) upstream to its headwaters (-85.12136, 36.55947) in Pickett
County, TN.
(ii) Map of Unit FK8 follows:
[GRAPHIC] [TIFF OMITTED] TR26SE13.070
(14) Unit FK9: West Fork Obey River, Overton County, Tennessee.
(i) The unit includes approximately 19 rkm (12 rmi) of the West
Fork Obey River from the Highway 52 Bridge crossing (-85.17410,
36.39731) upstream to its confluence with Dry Hollow Creek (-85.20747,
36.25989) in Overton County, TN.
(ii) Map of Unit FK9 follows:
[[Page 59592]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.071
(15) Unit FK10: Indian Creek, Tazewell County, Virginia.
(i) The unit includes 6.7 rkm (4.2 rmi) of Indian Creek from its
confluence with the Clinch River (-81.76608, 37.08893) upstream to the
fourth Norfolk Southern Railroad crossing at Van Dyke (-81.71975,
37.11206) in Tazewell County, VA.
(ii) Map of Units FK10 and FK11 follows:
[[Page 59593]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.072
(16) Unit FK11: Little River, Russell and Tazewell Counties,
Virginia.
(i) The unit includes approximately 50 rkm (31 rmi) of Little River
from its confluence with the Clinch River (-81.92582, 37.00223) in
Russell County, VA, upstream to its confluence with Liberty and Maiden
Spring Creeks (-81.67240, 37.03760) in Tazewell County, VA.
(ii) Map of Units FK10 and FK11 is provided at paragraph (15)(ii)
of this entry.
(17) Unit FK12: North Fork Holston River, Smyth and Bland Counties,
Virginia.
(i) The unit includes approximately 67 rkm (42 rmi) of the North
Fork Holston River from its confluence with Beaver Creek (-81.70277,
36.90825), upstream of Saltville, in Smyth County, VA, upstream to
Ceres (-81.33775, 37.01035), Bland County, VA.
(ii) Map of Unit FK12 follows:
[[Page 59594]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.073
(18) Unit FK13: Middle Fork Holston River, Washington, Smyth, and
Wythe Counties, Virginia.
(i) The unit includes approximately 89 rkm (55 rmi) of the Middle
Fork Holston River from its inundation at South Holston Lake (-
81.90427, 36.66338) in Washington County, VA, upstream to its
headwaters (-81.31345, 36.88666) in Wythe County, VA.
(ii) Map of Unit FK13 follows:
[[Page 59595]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.074
(19) Unit FK14: Big Moccasin Creek, Scott and Russell Counties,
Virginia.
(i) The unit includes approximately 33 rkm (21 rmi) of Big Moccasin
Creek from the Highway 71 Bridge crossing (-82.48361, 36.69109) in
Scott County, VA, upstream to the Route 612 Bridge crossing (-82.32348,
36.73740) near Collinwood in Russell County, VA.
(ii) Map of Unit FK14 follows:
[[Page 59596]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.075
(20) Unit FK15: Copper Creek, Scott County, Virginia.
(i) The unit includes 55.5 rkm (34.5 rmi) of Copper Creek from its
confluence with the Clinch River (-82.74538, 36.65544) upstream to the
Highway 71 Bridge crossing (-82.43514, 36.73473) in Scott County, VA.
(ii) Map of Unit FK15 follows:
[[Page 59597]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.076
(21) Unit FK16: Clinch River, Hancock County, Tennessee, and Scott,
Russell, and Tazewell Counties, Virginia.
(i) The unit includes approximately 263 rkm (163 rmi) of the Clinch
River from rkm 255 (rmi 159) immediately below Grissom Island (-
83.40106, 36.43081) in Hancock County, TN, upstream to its confluence
with Indian Creek near Cedar Bluff (-81.74999, 37.07995), Tazewell
County, VA.
(ii) Map of Unit FK16 follows:
[[Page 59598]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.077
(22) Unit FK17: Powell River, Claiborne and Hancock Counties,
Tennessee, and Lee County, Virginia.
(i) The unit includes approximately 153 rkm (95 rmi) of the Powell
River from the U.S. 25E Bridge (-83.63102, 36.54143) in Claiborne
County, TN, upstream to rkm 256 (rmi 159) (-82.98111, 36.75730,
upstream of Rock Island in the vicinity of Pughs) in Lee County, VA.
(ii) Map of Unit FK17 follows:
[[Page 59599]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.078
(23) Unit FK18: Nolichucky River, Cocke, Hamblen, and Greene
Counties, Tennessee.
(i) The unit includes approximately 52 rkm (32 rmi) of the
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi)
upstream of Enka Dam (-83.19630, 36.12970), where it divides Hamblen
and Cocke Counties, TN, upstream to its confluence with Pigeon Creek,
just upstream of the Highway 321 Bridge crossing (-82.92926, 36.07545),
in Greene County, TN.
(ii) Map of Unit FK18 follows:
[[Page 59600]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.079
(24) Unit FK19: Holston River, Knox, Grainger, and Jefferson
Counties, Tennessee.
(i) The unit includes approximately 85 rkm (53 rmi) of the Holston
River from its confluence with the French Broad River (-83.84967,
35.95903) in Knox County, TN, upstream to the base of Cherokee Dam at
rkm 83.7 (rmi 52.3) (-83.49855, 36.16666) along the Grainger and
Jefferson County, TN, line.
(ii) Map of Units FK19 and FK20 follows:
[[Page 59601]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.080
(25) Unit FK20: French Broad River, Knox and Sevier Counties,
Tennessee.
(i) The unit includes approximately 56 rkm (35 rmi) of the French
Broad River from its confluence with the Holston River (-83.84967,
35.95903) in Knox County, TN, upstream to the base of Douglas Dam at
rkm 51.7 (rmi 32.3) (-83.53821, 35.96073) in Sevier County, TN.
(ii) Map of Units FK19 and FK20 is provided at paragraph (24)(ii)
of this entry.
(26) Unit FK21: Hiwassee River, Polk County, Tennessee.
(i) The unit includes approximately 24 rkm (15 rmi) of the Hiwassee
River from the Highway 315 Bridge crossing (-84.50234, 35.18875)
upstream to the Highway 68 Bridge crossing (-84.31728, 35.16811) in
Polk County, TN.
(ii) Map of Unit FK21 follows:
[[Page 59602]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.081
(27) Unit FK22: Elk River, Limestone County, Alabama, and Giles,
Lincoln, Franklin, and Moore Counties, Tennessee.
(i) The unit includes approximately 164 rkm (102 rmi) of the Elk
River from its inundation at Wheeler Lake (-87.06503, 34.89788) in
Limestone County, AL, upstream to its confluence with Farris Creek (-
86.31996, 35.16288) at the dividing line between Franklin and Moore
Counties, TN.
(ii) Map of Unit FK22 follows:
[[Page 59603]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.082
(28) Unit FK23: Duck River, Humphreys, Perry, Hickman, Maury,
Marshall, and Bedford Counties, Tennessee.
(i) The unit includes approximately 348 rkm (216 rmi) of the Duck
River from its inundation at Kentucky Lake (-87.88011, 36.00244) in
Humphreys County, TN, upstream to its confluence with Flat Creek (-
86.48778, 35.47209) near Shelbyville in Bedford County, TN.
(ii) Map of Unit FK23 follows:
[[Page 59604]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.083
(29) Unit FK24: Buffalo River, Humphreys and Perry Counties,
Tennessee.
(i) The unit includes 50 rkm (31 rmi) of the Buffalo River from its
confluence with the Duck River (-87.84261, 35.99477) in Humphreys
County, TN, upstream to its confluence with Cane Creek (-87.78718,
35.72298) in Perry County, TN.
(ii) Map of Unit FK24 follows:
[[Page 59605]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.084
Slabside Pearlymussel (Pleuronaia dolabelloides)
(1) Critical habitat units are depicted on the maps below for
Colbert, Jackson, Limestone, Madison, and Marshall Counties, Alabama;
Tishomingo County, Mississippi; Bedford, Bledsoe, Claiborne, Cocke,
Franklin, Giles, Greene, Hamblen, Hancock, Hickman, Humphreys, Lincoln,
Marion, Marshall, Maury, Moore, Perry, Polk, and Sequatchie Counties,
Tennessee; and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington,
and Wythe Counties, Virginia.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
slabside pearlymussel consist of five components:
(i) Riffle habitats within large, geomorphically stable stream
channels (channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation).
(ii) Stable substrates of sand, gravel, and cobble with low to
moderate amounts of fine sediment and containing flow refugia with low
shear stress.
(iii) A natural hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
benthic habitats where the species is found, and connectivity of rivers
with the floodplain, allowing the exchange of nutrients and sediment
for habitat maintenance, food availability for all life stages, and
spawning habitat for native fishes.
(iv) Water quality with low levels of pollutants and including a
natural
[[Page 59606]]
temperature regime, pH (between 6.0 to 8.5), oxygen content (not less
than 5.0 milligrams/liter), hardness, and turbidity necessary for
normal behavior, growth, and viability of all life stages.
(v) The presence of abundant fish hosts, which may include the
popeye shiner, rosyface shiner, saffron shiner, silver shiner,
telescope shiner, Tennessee shiner, whitetail shiner, white shiner, and
eastern blacknose dace, necessary for recruitment of the slabside
pearlymussel.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, dams, roads, and other paved areas) and the land
on which they are located existing within the legal boundaries on
October 28, 2013.
(4) Critical habitat map units. Data layers defining map units were
created with USGS National Hydrography Dataset (NHD\+\) GIS data. The
1:100,000 river reach (route) files were used to calculate river
kilometers and miles. ESRIs ArcGIS 10.0 software was used to determine
longitude and latitude coordinates using decimal degrees. The
projection used in mapping all units was USA Contiguous Albers Equal
Area Conic USGS version, NAD 83, meters. The following data sources
were referenced to identify features (like roads and streams) used to
delineate the upstream and downstream extents of critical habitat
units: NHD\+\ flowline and waterbody data, 2011 Navteq roads data, USA
Topo ESRI online basemap service, DeLorme Atlas and Gazetteers, and
USGS 7.5 minute topographic maps. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the field office
Internet site (http://www.fws.gov/cookeville), at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0026, and at the
Service's Tennessee Fish and Wildlife Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) An overview of critical habitat locations for the slabside
pearlymussel in Mississippi, Alabama, Tennessee, and Virginia follows:
[[Page 59607]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.085
(6) Unit SP1: North Fork Holston River, Smyth and Bland Counties,
Virginia.
(i) The unit includes approximately 67 river kilometers (rkm) (42
river miles (rmi)) of the North Fork Holston River from its confluence
with Beaver Creek (-81.70277, 36.90825), upstream of Saltville, in
Smyth County, VA, upstream to Ceres (-81.33775, 37.01035), Bland
County, VA.
(ii) Map of Unit SP1 follows:
[[Page 59608]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.086
(7) Unit SP2: Middle Fork Holston River, Washington, Smyth, and
Wythe Counties, Virginia.
(i) The unit includes approximately 89 rkm (55 rmi) of the Middle
Fork Holston River from its inundation at South Holston Lake (-
81.90427, 36.66338) in Washington County, VA, upstream to its
headwaters (-81.31345, 36.88666) in Wythe County, VA.
(ii) Map of Unit SP2 follows:
[[Page 59609]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.087
(8) Unit SP3: Big Moccasin Creek, Scott and Russell Counties,
Virginia.
(i) The unit includes approximately 33 rkm (21 rmi) of Big Moccasin
Creek from the Highway 71 Bridge crossing (-82.48361, 36.69109) in
Scott County, VA, upstream to the Route 612 Bridge crossing (-82.32348,
36.73740) near Collinwood in Russell County, VA.
(ii) Map of Unit SP3 follows:
[[Page 59610]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.088
(9) Unit SP4: Clinch River, Hancock County, Tennessee, and Scott,
Russell, and Tazewell Counties, Virginia.
(i) The unit includes approximately 263 rkm (163 rmi) of the Clinch
River from rkm 255 (rmi 159) immediately below Grissom Island (-
83.40106, 36.43081) in Hancock County, TN, upstream to its confluence
with Indian Creek near Cedar Bluff (-81.74999, 37.07995), Tazewell
County, VA.
(ii) Map of Unit SP4 follows:
[[Page 59611]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.089
(10) Unit SP5: Powell River, Claiborne and Hancock Counties,
Tennessee, and Lee County, Virginia.
(i) The unit includes approximately 153 rkm (95 rmi) of the Powell
River from the U.S. 25E Bridge (-83.63102, 36.54143) in Claiborne
County, TN, upstream to rkm 256 (rmi 159) (-82.98111, 36.75730,
upstream of Rock Island in the vicinity of Pughs) in Lee County, VA.
(ii) Map of Unit SP5 follows:
[[Page 59612]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.090
(11) Unit SP6: Nolichucky River, Cocke, Hamblen, and Greene
Counties, Tennessee.
(i) The unit includes approximately 52 rkm (32 rmi) of the
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi)
upstream of Enka Dam (-83.19630, 36.12970), where it divides Hamblen
and Cocke Counties, TN, upstream to its confluence with Pigeon Creek,
just upstream of the Highway 321 Bridge crossing (-82.92926, 36.07545),
in Greene County, TN.
(ii) Map of Unit SP6 follows:
[[Page 59613]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.091
(12) Unit SP7: Hiwassee River, Polk County, Tennessee.
(i) The unit includes approximately 24 rkm (15 rmi) of the Hiwassee
River from the Highway 315 Bridge crossing (-84.50234, 35.18875)
upstream to the Highway 68 Bridge crossing (-84.31728, 35.16811) in
Polk County, TN.
(ii) Map of Unit SP7 follows:
[[Page 59614]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.092
(13) Unit SP8: Sequatchie River, Marion, Sequatchie, and Bledsoe
Counties, Tennessee.
(i) The unit includes approximately 151 rkm (94 rmi) of the
Sequatchie River from the Highway 41, 64, 72, 2 Bridge crossing (-
85.60583, 35.06576) in Marion County, TN, upstream to the Ninemile
Cross Road Bridge crossing (-85.08304, 35.69162) in Bledsoe County, TN.
(ii) Map of Unit SP8 follows:
[[Page 59615]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.093
(14) Unit SP9: Paint Rock River, Madison, Marshall, and Jackson
Counties, Alabama.
(i) The unit includes approximately 86 rkm (53 rmi) of the Paint
Rock River from the Highway 431 Bridge crossing (-86.39109, 34.49926)
along the Madison and Marshall County line, AL, upstream to the
confluence of Estill Fork and Hurricane Creek in Jackson County, AL (-
86.17048, 34.89813). The unit includes approximately 11 rkm (7 rmi) of
Larkin Fork from its confluence with the Paint Rock River (-86.20833,
34.86218) upstream to its confluence with Bear Creek (-86.22512,
34.94205) in Jackson County, AL; approximately 13 rkm (8 rmi) of Estill
Fork from its confluence with the Paint Rock River (-86.17048,
34.89813) upstream to its confluence with Bull Run (-86.15283,
34.99118) in Jackson County, AL; and approximately 16 rkm (10 rmi) of
Hurricane Creek from its confluence with the Paint Rock River (-
86.17048, 34.89813) upstream to its confluence with Turkey Creek (-
86.09441, 34.98370) in Jackson County, AL.
(ii) Map of Unit SP9 follows:
[[Page 59616]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.094
(15) Unit SP10: Elk River, Limestone County, Alabama, and Giles,
Lincoln, Franklin, and Moore Counties, Tennessee.
(i) The unit includes approximately 164 rkm (102 rmi) of the Elk
River from its inundation at Wheeler Lake (-87.06503, 34.89788) in
Limestone County, AL, upstream to its confluence with Farris Creek (-
86.31996, 35.16288) at the dividing line between Franklin and Moore
Counties, TN.
(ii) Map of Unit SP10 follows:
[[Page 59617]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.095
(16) Unit SP11: Bear Creek, Colbert County, Alabama, and Tishomingo
County, Mississippi.
(i) The unit includes approximately 42 rkm (26 rmi) of Bear Creek
from its inundation at Pickwick Lake at rkm 37 (rmi 23) (-88.08373,
34.68909) in Colbert County, AL, upstream through Tishomingo County,
MS, and ending at the Mississippi-Alabama State line (-88.15388, 34.
49139).
(ii) Map of Unit SP11 follows:
[[Page 59618]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.096
(17) Unit SP12: Duck River, Humphreys, Perry, Hickman, Maury,
Marshall, and Bedford Counties, Tennessee.
(i) The unit includes approximately 348 rkm (216 rmi) of the Duck
River from its inundation at Kentucky Lake (-87.88011, 36.00244) in
Humphreys County, TN, upstream to its confluence with Flat Creek (-
86.48778, 35.47209) near Shelbyville in Bedford County, TN.
(ii) Map of Unit SP12 follows:
[[Page 59619]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.097
(18) Unit SP13: Buffalo River, Humphreys and Perry Counties,
Tennessee.
(i) The unit includes 50 rkm (31 rmi) of the Buffalo River from its
confluence with the Duck River (-87.84261, 35.99477) in Humphreys
County, TN, upstream to its confluence with Cane Creek (-87.78718,
35.72298) in Perry County, TN.
(ii) Map of Unit SP13 follows:
[[Page 59620]]
[GRAPHIC] [TIFF OMITTED] TR26SE13.098
* * * * *
Dated: September 17, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-23357 Filed 9-25-13; 8:45 am]
BILLING CODE 4310-55-C