[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Proposed Rules]
[Pages 48294-48349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15143]
[[Page 48293]]
Vol. 88
Wednesday,
No. 142
July 26, 2023
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Green Floater and Designation of
Critical Habitat; Proposed Rule
Federal Register / Vol. 88, No. 142 / Wednesday, July 26, 2023 /
Proposed Rules
[[Page 48294]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2023-0012; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF80
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Green Floater and Designation of
Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the green floater (Lasmigona subviridis), a mussel species from as
many as 10 States in the eastern United States and the District of
Columbia, as a threatened species with a rule issued under section 4(d)
of the Endangered Species Act of 1973, as amended (Act). This document
also serves as our 12-month finding on a petition to list the green
floater. After a review of the best available scientific and commercial
information, we find that listing the species is warranted. We also
propose to designate critical habitat for the green floater under the
Act. In total, approximately 2,553 kilometers (1,586 miles) of streams
in Maryland, New York, North Carolina, Pennsylvania, Virginia, and West
Virginia fall within the boundaries of the proposed critical habitat
designation. We also announce the availability of a draft economic
analysis of the proposed designation of critical habitat for the green
floater. If we finalize this rule as proposed, it would add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species and its designated critical
habitat.
DATES: We will accept comments received or postmarked on or before
September 25, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 11, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2023-0012,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R5-ES-2023-0012, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012. For the proposed
critical habitat designation, the coordinates or plot points or both
from which the maps are generated are included in the decision file for
this proposed critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012 and on our
internet site at https://www.fws.gov/office/new-york-ecological-services-field.
FOR FURTHER INFORMATION CONTACT: Ian Drew, Field Supervisor, U.S. Fish
and Wildlife Service, New York Ecological Services Field Office, 3817
Luker Road, Cortland, NY 13045; telephone 607-753-9334. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
green floater meets the Act's definition of a threatened species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and making a critical habitat
designation can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose the listing of the green
floater as a threatened species with a rule under section 4(d) of the
Act (a ``4(d) rule''), and we propose the designation of critical
habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat degradation
(Factor A), resulting from the cumulative impacts of land use change
and associated watershed-level effects on water quality, habitat
connectivity, and stream conditions, poses the greatest risk to the
future viability of the green floater. Habitat degradation can occur as
a result of increased surface runoff, sedimentation, and pollution, and
decreased substrate stability, both instream and along streambanks.
These degraded conditions negatively impact the green floater by, for
example, smothering the organism or washing the organism downstream. In
the future, climate change (Factor A) is expected to exacerbate the
degradation of the green floater's habitat through increased water
temperatures, changes and shifts in seasonal patterns of precipitation
and runoff, and extreme weather events such as flood or droughts.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may
[[Page 48295]]
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments, including additional information, concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) The historical and current status of this species.
(4) Regulations that may be necessary and advisable to provide for
the conservation of the green floater and that we can consider in
developing a 4(d) rule for the species. In particular, we seek
information concerning the extent to which we should include any of the
section 9 prohibitions in the 4(d) rule or whether we should consider
any additional exceptions from the prohibitions in the 4(d) rule.
(5) Specific information on the species' habitat, including:
(a) The amount and distribution of green floater habitat;
(b) Any additional areas occurring within the range of the species
(the States of Alabama, Georgia, Maryland, New Jersey, New York, North
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia, and the
District of Columbia) that should be included in the designation
because they (i) are occupied at the time of listing and contain the
physical or biological features that are essential to the conservation
of the species and that may require special management considerations,
or (ii) are unoccupied at the time of listing and are essential for the
conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
species. This information may help us evaluate the potential to include
areas not occupied at the time of listing. Additionally, please provide
specific information regarding whether or not unoccupied areas would,
with reasonable certainty, contribute to the conservation of the
species and contain at least one physical or biological feature
essential to the conservation of the species. We also seek comments or
information regarding whether areas not occupied at the time of listing
qualify as habitat for the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(8) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determinations may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is endangered
instead of threatened, or we may conclude that the
[[Page 48296]]
species does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, or may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the 4(d) rule if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species. In our final rule,
we will clearly explain our rationale and the basis for our final
decision, including why we made changes, if any, that differ from this
proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
In our November 21, 1991, candidate notice of review (CNOR;
published at 56 FR 58804) we identified the green floater as a Category
2 candidate species. Category 2 candidate species were those taxa for
which listing was possibly appropriate, but for which conclusive data
on biological vulnerability and threats were not available to support
proposed rules. In the February 28, 1996, CNOR (61 FR 7596), we
discontinued the designation of species as Category 2 candidates;
therefore, the green floater was no longer a candidate species.
On April 20, 2010, we were petitioned to list 404 aquatic species
in the southeastern United States, including the green floater. In
response to the petition, we published a partial 90-day finding on
September 27, 2011 (76 FR 59836), in which we announced our finding
that the petition contained substantial information that listing might
be warranted for numerous species, including the green floater.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the green floater (Service 2021, entire). The SSA team was composed of
Service biologists, in consultation with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the green floater SSA report. We
sent the SSA report to five independent peer reviewers and received one
response. Results of this structured peer review process can be found
at https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012. In
preparing this proposed rule, we incorporated the results of this
review, as appropriate, into the SSA report, which is the foundation
for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from one
peer reviewer on the draft SSA report. We reviewed all comments we
received from the peer reviewer for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewer generally concurred with our methods and conclusions and
provided additional information and other editorial suggestions. No
substantive changes to our analysis and conclusions within the SSA
report were necessary, and peer reviewer comments are addressed in
version 1.0 of the SSA report (Service 2021, entire).
I. Proposed Listing Determination
Background
The green floater is a freshwater mussel found in small streams to
large rivers in the eastern United States. It is historically native to
the District of Columbia and 10 States (Alabama, Georgia, Maryland, New
Jersey, New York, North Carolina, Pennsylvania, Tennessee, Virginia,
and West Virginia). Today, however, green floaters are considered
extirpated in Alabama and Georgia, and there are no recent records from
New Jersey or the District of Columbia.
Green floaters are small freshwater mussels with ovate trapezoidal
shaped shells. Their shells are yellowish brown to olive green with
green rays (Bogan and Ashton 2016, p. 43). Adults rarely exceed 5.5
centimeters (cm) (2.2 inches (in)) (Johnson 1970, p. 344) but can grow
to 7.0 cm (2.8 in) in length (Watters et al. 2009, p. 347). Like all
freshwater mussels, the green floater is an omnivore that feeds on a
wide variety of microscopic particulate matter (i.e., bacteria and
algae).
The best available information suggests the green floater is a
short-lived, fast-growing species compared to similar mussels. The
green floater is considered a long-term brooder because individuals
produce eggs that develop as larvae in the adult mussels and are then
released after several months (Haag 2012, pp. 40-41, 203-204). In
contrast, short-term brooders are similar in that larvae develop in the
adult mussels, but the brood period is shorter, lasting several days or
weeks. While some mussels can live to 100 years old, green floaters
typically live just 3 to 4 years (Watters et al. 2009, p. 349). In
laboratory settings, green floaters can mature and release sperm at
less than 1 year of age (Mair 2020, pers. comm.)
Green floaters are hermaphroditic (Ortmann 1919, p. 122; van der
Schalie 1970, p. 106) and have the ability to self-fertilize, which
increases the probability of fertilization (Haag 2012, p. 191).
Spawning and reproduction occur during the late summer or early fall.
In the winter, green floaters can directly metamorphose larvae, called
glochidia, meaning that adults keep the glochidia in their gills until
they mature into juveniles and then release them into the water column
in the spring (Barfield and Watters 1998, p. 22; Lellis and King 1998,
p. 23; Haag 2012, p. 150). For most freshwater mussels, glochidia are
released into the water column and must attach to the gills of a host
fish in order to undergo metamorphosis and transform into juveniles.
Several weeks or months
[[Page 48297]]
later, the juveniles detach from the fish and burrow into the
substrate. Green floater adults have the ability to expel glochidia
that use fish hosts, too (J. Jones 2020, unpublished data), but it is
not known what proportion of green floaters use this method of
reproduction. The added ability to directly metamorphose glochidia
without requiring an intermediate fish host is unique to the green
floater. This life strategy may allow the green floater to occur in
small streams with small populations and few fish (Haag 2012, pp. 150,
191), although the use of fish hosts is necessary for periodic upstream
dispersal.
Green floaters likely maximize population growth during periods of
favorable conditions (Haag 2012, pp. 208, 284). Adult green floaters
can produce between 2,600 and 33,300 juveniles per individual each year
(R. Mair, Service, unpublished data), and the number of juveniles
produced can vary greatly from year to year. For example, researchers
at Harrison Lake National Fish Hatchery in Virginia observed that the
average number of juveniles released per individual jumped from 4,600
to 22,500 per individual in a 2-year span. These numbers do not
represent the total number of juveniles expected to survive to
adulthood, a number which is unknown but is likely to be a small
proportion of the juveniles released. When they are found in natural
environments, green floaters can occur singly or in small aggregations
of a few individuals.
Streams with slow to medium flows and good water quality provide
the best habitat for green floaters (Ortmann 1919, p. 124; Johnson
1970, p. 345; Clarke 1985, p. 56; Kerferl 1990, p. 47). They are often
found in sand or small gravel substrates where they establish a
foothold and bury themselves as deep as 38 cm (15 in) (Haag 2012, p.
31; Lord 2020, pers. comm.). Their mobility is limited, and fast
flowing currents or high-water events can cause them to be washed
downstream (Strayer 1999, pp. 468, 472). When they occur in larger
streams and rivers, they are found in quieter pools and eddies, away
from strong currents (WVDNR 2008, p. 2).
For more information, please refer to the SSA report (version 1.0;
Service 2021, pp. 1-30), which presents a thorough review of the
taxonomy, life history, and ecology of the green floater.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
[[Page 48298]]
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the green floater's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate change, pathogens). In general, species viability
will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we use the best available information to characterize viability
as the ability of a species to sustain populations in the wild over
time. We use this information to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R5-
ES-2023-0012 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
several plausible future scenarios.
Species Needs
We assessed the best available information to identify the physical
and biological needs to support all life stages for the green floater.
Green floaters occur in a variety of habitats across the species' large
range, but they require specific conditions for the habitat to be
suitable. Water flow, streambed substrate, water quality, water
temperature, and conditions that support their host fish are all
important habitat components for the health of green floaters.
Green floaters occur in small streams to large rivers, pools,
eddies, and canals with current speeds that are low or moderate
(Ortmann 1919, p. 124; Clarke 1985, p. 56; WVDNR 2008, p. 2). The
optimal current is stable, not flashy, and responds slowly to
precipitation events (Strayer 1993, pp. 241, 244). Green floaters
require slow and stable flows because they spend most of their lives
buried just below the surface of the streambed with their posterior end
angled upward and their anterior end in the substrate. This position
allows them to siphon water through their incurrent aperture, secrete
waste through their excurrent aperture, and stabilize themselves using
their foot. The incoming current speeds must be adequate to deliver a
steady supply of food and oxygen.
Green floaters are able to survive high flow events by burying into
the substrate. Adult green floaters have been found buried between 8
and 13 cm (3 and 5 in) while juveniles have been found as deep as 38 cm
(15 in) (Barber 2020, pers. comm.; Lord 2020, pers. comm.). They are
associated with substrates composed primarily of sand or small gravel
(Holst 2020, pers. comm.). They can be found in both quiet, backwater
areas (e.g., eddies) with more silt and large, boulder-dominated
streams, but some amount of sand or gravel is necessary for them to
establish a foothold (Clayton 2020, pers. comm.). If they become
dislodged from the substrate, they can take up to 30 minutes to rebury
themselves, possibly requiring less time in sand and silt substrates
(Haag 2012, p. 32). If they become dislodged during a high water event
or flood, they could be washed downstream (Strayer 1999, pp. 468, 472).
Like all freshwater mussels, green floaters are sensitive to
certain water quality parameters and need clean water with low levels
of contaminants, adequate dissolved oxygen, and low salinity. Juvenile
mussels may be more sensitive than adults to the presence of
contaminants, especially copper and ammonia, which can cause
physiological effects or death (Goudreau et al. 1993, pp. 224, 226-227;
Jacobson et al. 1993, p. 882). The specific dissolved oxygen
requirements for green floaters are unknown; however, other freshwater
mussels begin to exhibit stress when dissolved oxygen levels fall below
6 milligrams per liter (mg/L) (Chen et al. 2001, pp. 213-214). Stress
is apparent through behavioral changes such as gaping (i.e., opening of
the shells to maintain oxygen levels) and lying on the surface of the
substrate (Sparks and Strayer 1998, pp. 131-133). Green floaters are
also intolerant to brackish water and require the low salinity levels
that occur naturally in freshwater streams.
Green floaters require water temperatures that are warm enough for
glochidia release but not so warm that they kill or stress the adults.
Research from lab and field studies indicate that the appropriate
temperature for glochidia release is likely between 15 and 20 degrees
Celsius ([deg]C) (59 and 68 degrees Fahrenheit ([deg]F)). Adult mussels
begin to exhibit the gaping behaviors described above when water
temperatures get too warm. Lethal maximum water temperatures for green
floaters have not been studied but are expected to be between 25.3 and
42.7 [deg]C (77.5 and 106.0 [deg]F), similar to those reported for
comparable species. Maximum temperatures are related to the duration of
exposure. Mussels can survive temperatures on the higher end of the
spectrum for short periods of time (i.e., minutes or hours) and can
survive temperatures on the lower end for days or weeks. Juvenile
mussels may be more sensitive to warm temperatures.
Adequate water quality and temperatures are important habitat
components for the health of host fish as well, which green floaters
require for upstream dispersal. In laboratory studies, green floaters
successfully used mottled sculpin (Cottus bairdii), rock bass
(Ambloplites rupestris), central
[[Page 48299]]
stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis) for glochidia
metamorphosis (J. Jones 2020, unpublished data). These species all
occur within the range of the green floater and could function as hosts
in natural settings as well.
The green floater historically occurred in four major drainages:
the Atlantic Slope (i.e., watersheds along the east coast of the United
States), St. Lawrence-Great Lakes, Mississippi River (Clarke 1985, p.
57), and Gulf (i.e., hydrologically connected to the Gulf of Mexico)
(Brim Box and Williams 2000, p. 59). We delineated analysis units for
the green floater in these drainages based on recent occupancy
information. We used data from surveys conducted by partners, including
State agencies, Federal agencies, nonprofit organizations, and
contractors, between 1999 to 2019. This period covers approximately
three generations of green floaters, which are thought to live up to 7
years (Watters et al. 2009, p. 349). Using these survey data, we
determined the green floater historically existed in 179 watersheds
across 10 States and the District of Columbia; 85 of these watersheds
have had no sightings since 1999 (see figure 1, below, and Service
2021, appendix C).
BILLING CODE 4333-15-P
[[Page 48300]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.000
BILLING CODE 4333-15-C
To assess resiliency, we evaluated relevant environmental and
demographic factors to determine the condition of populations across
the range of the species. Green floater populations must be able to
survive varying habitat conditions (i.e., good and bad years) to
respond to and recover from stochastic events (e.g., seasonal events
such as heavy rain or severe drought). They must have a healthy
demography, i.e., a population that includes organisms at a range of
life stages and occupy areas with suitable habitat conditions for all
life stages and seasons. Healthy demography is achieved by having a
sufficient number
[[Page 48301]]
of adults, recruitment (i.e., presence of adults and juveniles), and
habitat connectivity that supports genetic exchange within and between
populations. Genetic exchange is needed to preserve genetic diversity,
without which the health of populations can decrease. Barriers, such as
large dams and blocked culvert pipes, can impede genetic exchange by
limiting the dispersal of juvenile mussels and preventing host fish
migration. Some populations are found between barriers and downstream
of dams, but the healthiest green floater populations are likely to be
found in free-flowing streams and rivers.
To assess representation, we evaluated the ecological and genetic
diversity across the current range of the species. It is important to
have sufficiently resilient populations (referred to in figure 1,
above, as analysis units) where both genetic and ecological differences
are apparent to maintain the existing adaptive capacity. To evaluate
representation in the current condition of the green floater, we
consider both genetic information and the geographic distribution of
populations. The green floater must have healthy populations
distributed across the range to capture the breadth of genetic,
climate, elevation, and habitat diversity, and sufficient connectivity
for periodic genetic exchange across the range of the species.
To assess redundancy, we considered the number and distribution of
populations across the range of the species and the potential for
catastrophic events to impact the green floater's ability to persist.
To have high redundancy, the species needs to have multiple populations
distributed across a large area relative to the scale of anticipated
catastrophic events.
Factors Influencing Species Viability
Excessive Sedimentation
Excessive sedimentation is one of the primary factors affecting
green floater viability. Sedimentation originates from instream (e.g.,
bank erosion, shifting channels) and upland sources (e.g., soil
erosion). Increases in sediment load can accumulate on the stream/river
bottom and may lead to bottom scour; lead to embeddedness of rocks,
gravel, and cobble; and affect some baseline water quality parameters
(e.g., turbidity). Excess sedimentation can harm mussels in multiple
ways: suspended particles can abrade mussels and clog the gills and
respiratory systems of both mussels and host fish, while deposited
sediment can bury mussels and smother host fish eggs (Wood and Armitage
1997, p. 211; Burkhead and Jelks 2001, p. 965). Even where
sedimentation does not clog gills so severely as to kill mussels, it
may still significantly impact their feeding efficiency and filtering
clearance rates (Aldridge et al. 1987, p. 25; Brim Box and Mossa 1999,
pp. 100-101).
Increases in suspended sediment can also adversely affect mussels'
ability to feed and reproduce. Mussels must have their valves open to
feed, but in heavily silted water, they are forced to close their
valves to wait for conditions to improve. Mussels in turbid water have
been observed closing their valves up to 90 percent of the time,
compared to 50 percent of the time for individuals in silt-free
environments (Ellis 1936, p. 40). Extended valve closure can lead to
decreased health or starvation. Increases in suspended particles can
also reduce mussels' ability to encounter sperm, become gravid, and
reproduce (Landis et al. 2013, p. 74).
However, a reduced sediment load can also destabilize the stream
channel. When a decrease in sediment supply coincides with increased
stream flow, the imbalance can cause streams to narrow and deepen
(Rakovan and Renwick 2011, p. 40), channeling the flow of water and
making the habitat unsuitable for green floaters. Other activities,
like dredging, channelization, or storm damage, can also adversely
affect physical habitat. Changes in primary productivity (i.e., algae
and aquatic plant growth) as a result of nutrient loads or reduced
stream flows can limit the suitability of stream habitats for the green
floater and other aquatic species (Bogan 1993, p. 604; Wood and
Armitage 1997, pp. 209-210; Taylor et al. 2007, p. 374). Fine sediment
suspension and deposition affect the primary producers by reducing the
amount of sunlight and damaging leaves of plants, which reduces
photosynthesis (Lewis 1973, p. 253; Davies-Colley et al. 1992, p. 232),
and, in extreme cases, by smothering and eliminating algae and plants
(Yamada and Nakamura 2002, p. 489).
During periods of stress, green floaters bury themselves deeper in
the substrate and take refuge in interstitial spaces (i.e., small
openings between rocks and gravels). While in interstitial spaces, they
rely on available pore water (i.e., the water in interstitial spaces
between rock and gravel substrates) for oxygen and food particles.
Interstitial spaces provide essential habitat for adults and juvenile
green floaters by protecting them from high water events and periods of
drought, and allowing water loaded with oxygen and food particles to
reach the mussels. Excess sedimentation adversely affects mussel
habitat by blocking or filling in the interstitial spaces. Excess sand
or silt can reduce or block these areas (Brim Box and Mossa 1999, p.
100), which may cause them to become unsuitable for green floaters by
having reduced dissolved oxygen levels and limited food availability
(Strayer and Malcom 2012, p. 1781).
Pollutants bound to fine sediment and pore water inside
interstitial spaces can also be toxic to mussels. The degree of
bioavailability of pollutants bound to sediments can be affected by
environmental characteristics such as oxygen, temperature, hardness,
alkalinity, dissolved organic carbon, chloride, and acidity (Farris and
van Hassel 2006, p. 206; Archambault et al. 2017, p. 403).
Excessive sedimentation can be caused by land-disturbing activities
associated with development (i.e., residential/commercial, energy, and
transportation development). These types of activities increase the
amount of impervious surfaces and leave areas of bare, unvegetated soil
exposed to direct rainfall. Energy development, agriculture, and
forestry activities all take place within the range of the green
floater. Energy development is a source of sediment because solar
farms, oil and gas pipelines, and transmission lines can cause soil
disturbance during installation and maintenance of equipment.
Agriculture activities can also cause excessive sedimentation when best
management practices are not implemented to minimize soil erosion and
increased overland flow, and some forestry practices have the potential
to result in increased siltation in riparian systems through the cycle
of forest thinning, final harvest, site preparation, and re-planting
activities. However, implementation of best management practices and
establishment of streamside management zones can minimize the impacts
from forestry (Service 2018 and 2019, chapter 6). Adherence to these
best management practices and streamside management zones broadly
protects water quality, particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017,
entire; Schilling et al. 2021, entire).
Impervious surfaces (e.g., roads, concrete) are a source of
pollutants such as oil and gas because the surfaces prevent liquids
from entering the ground. During precipitation events, the pollutants
collect in the rainfall, and because water is unable to absorb into the
impervious surfaces too, the mixture flows into overland and subsurface
drainage runoff. In addition, sediments, which come from the bare,
unvegetated
[[Page 48302]]
soil, join the polluted runoff and flow into rivers and streams. The
increased surface and drainages waters lead to higher stream flows
which erode streambanks and riverbanks, increasing turbidity and
decreasing streambed stability, all of which negatively impact green
floaters.
Water Quality Degradation
In addition to impacts to water quality from sedimentation, water
quality can be degraded due to contamination or changes in temperature.
Chemical contaminants are widespread and are a major reason for the
current declining status of freshwater mussel species nationwide
(Augspurger et al. 2007, p. 2025). Chemical contamination of waterways
can greatly impact aquatic organisms, and freshwater mussels appear to
be more sensitive to some of these chemical contaminants than other
test organisms. As sedentary benthic feeders, mussels are exposed to
toxic pollutants that enter aquatic environments through direct
discharges and stormwater runoff. Contaminants can enter waterways
through both point and nonpoint sources, including spills, industrial
discharges, municipal effluents, agricultural runoff, and atmospheric
deposition from precipitation. These sources contribute excess
nutrients, organic compounds, heavy metals, pesticides, and a wide
variety of newly emerging contaminants (e.g., antibiotics and hormones
from wastewater treatment facilities) to the aquatic environment.
Green floaters are negatively affected by low levels of dissolved
oxygen. Dissolved oxygen levels become reduced when nutrients in the
water column increase, causing eutrophication and algal blooms. Both
natural and anthropogenic sources of organic matter can increase
nutrient levels in waterways, but most nutrient pollution is the result
of ongoing and large-scale discharges of nitrogen from anthropogenic
sources, such as fertilizers and livestock waste. Depletion of
dissolved oxygen affects the chemistry and increases the
bioavailability of some contaminants. Dissolved oxygen may have the
greatest impact on juvenile mussels, which are more sensitive to low
levels than adults (Dimock and Wright 1993, p. 189; Sparks and Strayer
1998, pp. 131-133). When there is low dissolved oxygen, juveniles
exhibit stress behaviors, such as surfacing, gaping, and exposing their
foot and siphons, that expose them to predators (Sparks and Strayer
1998, pp. 132-133).
Freshwater mollusks, including the green floater, are sensitive to
chemical pollutants, including chlorine, ammonia, copper, fungicides,
and herbicide surfactants (Augspurger et al. 2007, pp. 2025-2028).
These chemicals occur in sediments and water and are ingested when
mussels filter and feed on particles (Yeager et al. 1994, p. 217;
Newton et al. 2003, p. 2553). Ammonia occurs naturally in aquatic
systems as a waste product from bacteria. Additional ammonia is
deposited into streams through surface water runoff from sources such
as industrial, municipal, and agricultural wastewater; decomposition of
organic nitrogen; and atmospheric ammonia (Newton 2003, p. 2543; Yao
and Zhang 2019, p. 22139). Ammonia is suspended in the atmosphere and
returns to the ground as either gaseous ammonia or ammonium ions in
precipitation (Air Quality Research Subcommittee 2000, pp. 8-9).
Domestic livestock is the largest global contributor to atmospheric
ammonia and a growing source of atmospheric deposition (Bouwman et al.
1997, p. 561). Excess nitrogen (in the form of nitrates) in waterways
causes plants and algae to flourish and die off, using up dissolved
oxygen sources in the water, depleting sources of oxygen for other
aquatic organisms, causing eutrophication, and increasing the risk of
die offs of fish and aquatic invertebrates (USGS 2022, unpaginated).
Excessive inputs of organic matter can also cause ammonia in waterways
to reach levels that are detrimental to freshwater mussels (Haag 2012,
p. 379). However, the degree of ammonia toxicity varies depending on
temperature and pH conditions, which influence the proportion of
ammonia in its less toxic (ionized ammonium, NH4+) or more
toxic (un-ionized ammonia, NH3) state (Augspurger et al.
2003, pp. 2569-70; Haag 2012, p. 379). When temperature and pH levels
increase, concentrations of the more highly toxic un-ionized ammonia
also increase and can reach levels that are lethal to the green floater
and other freshwater mussels (Strayer 2020, pers. comm.). High
concentrations of un-ionized ammonia are thought to be a contributing
cause of widespread decline of mussels in the Hudson River (Strayer and
Malcom 2012, p. 1786). When un-ionized ammonia reached concentrations
of 0.2 mg/L, recruitment in wild mussel populations failed (Strayer and
Malcom 2012, p. 1787). Juvenile mussels are highly sensitive to un-
ionized ammonia, and chronic exposure at concentrations of 0.57 mg/L in
25 [deg]C (77 [deg]F) water was lethal to juveniles in the lab
(Augspurger et al. 2003, p. 2572). The Lasmigona genus, of which the
green floater is a member, was the most sensitive of 12 genera tested
for ammonia toxicity of juveniles and adults (Augspurger et al. 2003,
p. 2573).
In addition to ammonia, manganese, nickel, chlorine, and sodium
dodecyl sulfate have also been linked to mussel declines and/or
toxicity (Archambault et al. 2017, entire; Gibson 2015, pp. 90-91;
Gibson et al. 2016, p. 33). Sediments that contain manganese and
ammonia as a result of mining and agriculture can negatively affect
mussel survival and biomass, as observed in the Clinch River and its
tributaries (Archambault et al. 2017, pp. 403-405). Manganese and
nickel generally enter waterways in the wastewater from various
industries, including alloy, glass, and battery manufacturing; via
atmospheric deposition as a result of the combustion of fossil fuels;
and in the runoff from agriculture and mining operations (Rollin 2011,
pp. 618-619). Long-term exposure to ammonia and manganese could reduce
immunity and fecundity in mussels (Archambault et al. 2017, p. 405).
Sodium dodecyl sulfate, a surfactant found in household detergents and
herbicides, can be lethal to some mussels after acute exposure (Gibson
et al. 2016, p. 30).
State and Federal regulatory mechanisms (e.g., the Clean Water Act
(33 U.S.C. 1251 et seq.)) have helped to reduce the negative effects of
point source discharges since the 1970s. However, while new water
quality criteria are being developed that consider more sensitive
aquatic species, most criteria currently do not have any limits
associated with them. On August 22, 2013, the U.S. Environmental
Protection Agency (EPA) published in the Federal Register (78 FR 52192)
national recommended ambient water quality criteria for the protection
of aquatic life from the effects of ammonia in fresh water. These
criteria incorporate the latest scientific knowledge on the toxicity of
ammonia to freshwater aquatic species, including freshwater mollusks.
So far, few States have adopted the new criteria, which are
considerably more stringent than previous criteria. Nickel and chlorine
have been shown to be toxic to juvenile mussels at levels below the
EPA's current water quality criteria (Gibson 2015, pp. 90-91). Water
quality criteria for other compounds that are harmful to mussels, such
as sodium dodecyl sulfate, do not currently exist (Gibson et al. 2016,
p. 33).
Increased water temperature caused by loss of riparian trees,
impoundments, climate change, stormwater, wastewater effluents, and low
flows during drought
[[Page 48303]]
periods can exacerbate low dissolved oxygen levels and negatively
affect juvenile and adult green floaters. Higher water temperatures
increase metabolic processes in freshwater mussels and can outstrip
energy reserves if they remain above the natural thermal tolerance of a
mussel for extended periods of time. Because ammonia toxicity in
freshwater environments increases as temperature and pH increase
(Newton 2003, p. 2543), temperature increases may exacerbate existing
pollution, compounding the threats to green floater growth and
survival.
Salt, which enters waterways from road runoff and industrial
discharges, can be toxic to freshwater mussels, and concentrations
observed in streams and rivers have resulted in death of glochidia in
laboratory settings (Gillis 2011, pp. 1704-1707). The largest chloride
spikes happen in the winter (Kaushal et al. 2005, pp. 13518-13519),
when road salt washes into waterways, keeping chloride levels elevated
in months when green floaters release glochidia.
Discharges of high salinity wastewater (called brine), a waste
product from oil and gas drilling operations, into streams can also
adversely affect freshwater mussels. In Pennsylvania, mussel abundance
and diversity were found to be lower downstream of a brine treatment
facility (Patnode et al. 2015, p. 59). In northern Appalachia, natural
gas operations have negatively affected groundwater and surface water
quality through wastewater disposal and increased sedimentation (Vidic
et al. 2013, p. 1235009-6; Olmstead et al. 2013, p. 4966), likely
impacting mussels in the region.
Organic contaminants such as polycyclic aromatic hydrocarbons
(PAHs) and polychlorinated biphenyls (PCBs) are toxic to humans and
organisms and can bioaccumulate in plants and animals (Newton and Cope
2007, entire; Maryland DNR 2020, unpaginated). These toxins contaminate
water via petroleum spills and discharges, industrial and municipal
wastewater, and atmospheric deposition (e.g., coal plants,
incinerators) (Albers 2003, p. 346). Natural sources of PAHs are forest
and grassland fires, oil seeps, volcanoes, plants, fungi, and bacteria.
Anthropogenic sources are petroleum, electric power generation, burning
of waste, home heating oil, coke (a fuel derived from coal), carbon,
coal tar, asphalt, and internal combustion engines (Albers 2003, p.
345). Oil and gas that drip from automobiles onto pavement eventually
enter waterways, especially in urban environments. Where roads cross
over streams, PAHs are found in significantly higher concentrations
than in upstream reaches (Archambault et al. 2018, p. 470). Cumulative
concentrations of PAHs in streams can cause adverse effects to mussels,
including reduced immune system function and reduced reproduction
(Archambault et al. 2018, p. 474).
In use between approximately 1929 until 1978, PCBs are long-lasting
toxic compounds that have significantly degraded major waterbodies
throughout the range of the green floater. Despite having been banned,
PCBs have accumulated and persist in sediment, affecting aquatic life
(including mussels) to this day (Jahn 2020, pers. comm.). For example,
up to 1.3 million pounds of PCBs were discharged into the Hudson River
between the 1940s and 1970s (USEPA 2016, entire). The area is now a
Federal Superfund remediation site, and cleanup activities, which began
in 2009, include dredging of the riverbed. Because PCBs exist in the
sediment, they are released into the water and continue to persist in
the environment.
Alteration of Water Flows
Mussels typically experience low flow and high flow periods and are
adapted to deal with seasonal variability. However, extreme drought or
flooding can adversely affect mussel populations that are already
stressed (Hastie et al. 2001, p. 114; Golladay et al. 2004, p. 504) and
can eliminate appropriate habitats. Green floaters may be able to
survive extreme low or high flow events if the duration is short (in
the case of stream drying), but populations that experience these
events regularly or for extended durations may be at risk.
Very low water levels can be caused by severe drought or water use.
During low water flow periods, mussel mortality is primarily caused by
dehydration, thermal stress, and exposure to predation (Golladay et al.
2004, p. 504; Pandolfo et al. 2010, p. 965; Galbraith et al. 2015, pp.
49-50). Water withdrawals are associated with public and private water
uses, sewage treatment, and power generation (e.g., dams), and may be
exacerbated by climate change (Neff et al. 2000, p. 207). Rapid
dewatering can lead to increased stress and mortality, especially in
more sensitive mussel species (Galbraith et al. 2015, p. 50), and
prevent dispersal. While green floaters can survive short periods of
low flows, persistent low flows can cause them to experience oxygen
deprivation and increased water temperatures, ultimately stranding them
in place if conditions do not improve or they are unable to relocate.
If deeper water is unavailable, they may bury themselves for long
periods of time, which can cause mortality, stress, and reduced
reproduction and recruitment in the population.
High flows can be caused by extreme precipitation (i.e., snowmelt
or rainfall) events or regulated dam releases. These events cause water
levels to rise, increasing flow velocities which can substantially
change, destabilize, or destroy mussel habitat. High flow velocities
can completely change the course of the stream, scour streambeds, erode
stream banks, and fill interstitial spaces with sediment. Where a
channel is no longer connected to floodplains, peak flows are higher
and faster, which can degrade or eliminate green floater habitat
(Clayton 2020, pers. comm.).
High flows may also result in dislodgement or displacement of
mussels. Flooding can bury mussels in silt, crush them with large rocks
moved by the current, or dislodge and relocate them to downstream areas
that may or may not provide suitable habitat (Hastie et al. 2001, pp.
113-114).
Barriers, such as improperly installed or maintained culverts, and
impoundments associated with dams (reservoirs), reduce the diversity
and abundance of mussels by altering habitat both upstream and
downstream (Bogan 1993, p. 605; Neves et al. 1997, p. 63). Culverts and
dams can inundate upstream shallow-water habitats, increasing sediment
deposition behind the barrier. The excess sediment can smother green
floaters by filling the interstitial spaces where they occur, thereby
depriving them of oxygen and nutrients. Besides sedimentation, the
increase in depth can degrade mussel habitat in a few ways. For
instance, in large reservoirs, deep water is very cold and often devoid
of oxygen and necessary nutrients. Smaller reservoirs often accumulate
excess nutrients, and hence lower dissolved oxygen, and have higher
water temperatures than adjacent stream reaches, all of which can
stress mussel populations.
Dams and other barriers also tend to reduce the water available to
mussel populations downstream. In addition, the frequency, duration,
timing, and location of water releases from dams can affect the
suitability of downstream habitats for green floaters. Sudden, high-
volume releases can increase scour in some places by washing away
sediment, then smother other areas by depositing sediment, filling
interstitial spaces, and burying the sandy and gravelly habitats that
mussels prefer. Large fluctuations in flow regimes from dam releases
can also cause seasonal dissolved oxygen depletion, lead to significant
variation in water temperatures, and change the
[[Page 48304]]
species of fish present in the stream, all of which can lead to
unsuitable conditions and negatively impact green floaters. The
instability of sediment from scour, flushing, and deposition of eroded
bank material can result in juvenile mussels failing to settle and stay
in interstitial spaces (Hastie et al. 2001, p. 114).
Nevertheless, there are cases of populations of other mussel
species thriving in stable conditions downstream of some dams,
especially small, low head dams (Gangloff 2013, p. 476 and references
therein; Bowers-Altman 2020, pers. comm.). Smaller dams have fewer
adverse effects because they do not tend to act as complete barriers
for water flow. Small dams and their impoundments can benefit mussel
habitat by filtering and lowering nutrient loads, oxygenating streams
during low-water periods, and stabilizing stream beds (Gangloff 2013,
pp. 478-479). Impoundments can also benefit the habitat by retaining
fine sediments and associated toxins, inhibiting the spread of invasive
species, and slowing or weakening water flows during flood events
(Fairchild and Velinsky 2006, p. 328; Jackson and Pringle 2010,
entire). Although dams and impoundments are considered to have an
overall negative impact across the range of the green floater, altered
or reduced hydrologic connectivity can be preferable to natural
connectivity regimes in highly developed landscapes.
Loss and Fragmentation of Habitat
Habitat fragmentation isolates mussel populations, which
contributes to their risk of extirpation from stochastic events (Haag
2012, pp. 336-338). Streams are naturally dynamic, frequently creating,
destroying, or shifting areas of quality habitat over a particular
timeframe. However, human-caused factors can lead to permanent
fragmentation of suitable habitat. For instance, barriers (e.g., dams,
improperly installed or maintained culverts with poor fish passage) can
disrupt the connectivity of green floater habitat and isolate mussel
populations by preventing host fish from moving upstream or downstream.
Dams have caused genetic isolation in river systems for fish and could
have the same effect on mussel populations. The alteration in fish
populations can be a threat to the survival of mussels and their
overall reproductive success over time (Haag 2009, pp. 117-118).
Fragmentation has other causes, too. Pollution or other habitat
degradation at specific points can completely separate stream reaches
from one another (Fagan 2002, p. 3246). Similarly, drought conditions
can temporarily fragment habitat by reducing or eliminating flows and
preventing movement of fish hosts carrying glochidia. Where mussel
populations are small, habitat fragmentation can cause local
extirpation because populations cannot be reestablished by colonization
from other areas. Connectivity between mussel beds or occupied habitats
is thus particularly important where reaches of suitable habitat are
created and destroyed frequently.
Invasive Species
Several invasive species, including zebra and quagga mussels
(Dreissena spp.), Asian clams (Corbicula fluminea), invasive crayfish
species (especially the rusty crayfish (Faxonius rusticus)), and
various species of bass, catfish, and carp are present in the green
floater's range and are likely to prey upon or compete with green
floater and alter the green floater's habitat (Strayer 2020, pers.
comm). Although the extent of the effects of these invasive species on
the green floater are unknown, their influence on the green floater is
likely to be detrimental and is expected to increase in the future.
Populations of these species and others are expanding their ranges and
becoming established in more watersheds inhabited by green floaters
over time. When invasive species are introduced to natural systems,
they may have many advantages over native species, such as the ability
to adapt to varying environments and a high tolerance of conditions
that allows them to thrive outside of their native range. There may not
be natural predators adapted to control the invasive species; thus,
they have the potential to live longer and reproduce more often,
rapidly increasing their populations and range. Native species may
become an easy food source for invasive species, and the invasive
species can carry diseases that could potentially spread to native
species. Some invasive species can drastically alter aquatic habitats
by affecting flow dynamics and can contaminate streams by dying in mass
mortality events that change the amount of dissolved oxygen and ammonia
in the water.
Effects of Climate Change
There are a multitude of ongoing and anticipated changes in the
environment resulting from climate change. Likely impacts of these
changes on aquatic systems that could affect green floaters include
increases in water temperatures, changes in seasonal precipitation, and
changes in extreme precipitation events. Sedentary freshwater mussels
have limited refugia from disturbances such as droughts and floods, and
since their physiological processes are constrained by water
temperature, increases in water temperature caused by climate change
can further stress vulnerable populations and lead to shifts in mussel
community structure (Galbraith et al. 2010, p. 1176). Extreme events
have become more common as the climate changes, and both floods and
droughts can degrade habitat and affect water quality parameters, like
dissolved oxygen (see ``Alteration of Water Flows,'' above). Low water
flows (e.g., following a prolonged summer drought) can expose mussels
to intense opportunistic predation (Wicklow et al. 2017, pp. 45, 47,
55, 137). All of these predicted impacts of climate change are already
occurring in the range of the green floater, and they are expected to
worsen over time (Poff et al. 2002, pp. ii-v), and human alteration of
channels and flow regimes may limit the ability of green floater and
host fish species to adapt and relocate.
Inherent Factors
Green floaters exhibit several inherent traits that likely
influence population viability, including hermaphroditism, direct
development of juvenile mussels in the marsupia (i.e., brood chamber in
the outer gills), and low fecundity compared to some other mussel
species. When habitat conditions are favorable, their abilities to
develop glochidia without host fish and to self-fertilize allow green
floaters to persist in small streams with small populations and few
fish, which positively impacts the species' viability (Haag 2012, pp.
150, 191). However, low fecundity rates limit the ability of
populations to quickly rebound after stochastic events. In addition,
hermaphroditism can lead to lower genetic diversity, and reliance on
juvenile development without a host fish can lead to a diminished
distribution.
Green floaters are frequently found in low numbers within their
occupied habitats, with some found in mussel beds along with other
mussel species and some found individually. Smaller population size
puts sites at greater risk of extirpation from demographic or
environmental stochasticity (e.g., periods of poor reproductive success
or periods of severe flooding or drought) or genetic drift. The
smallest populations of green floaters also face greater threats from
anthropogenic changes and management activities that affect habitat. In
addition, smaller populations may have reduced genetic diversity and
[[Page 48305]]
fitness and thus are more susceptible to environmental changes.
Conservation Efforts and Regulatory Mechanisms
There are several regulatory mechanisms that protect the green
floater or its habitat. The green floater is State-listed as endangered
or threatened in 8 States (Maryland, New Jersey, New York, North
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia) of the
10 States where it historically occurred. In these eight States, the
green floater receives some level of protection due to the State
listing, though this varies by State. The green floater has been
identified on the lists of Northeast and Southeast Regional Species of
Greatest Conservation Need, which enables States in those regions to
prioritize research and conservation of the species through State
wildlife action plans.
Green floaters may be afforded some protection by the Clean Water
Act's (CWA) dredge or fill permitting framework. CWA section 404
established a program to regulate the discharge of dredged and fill
material into waters of the United States. Permits to fill wetlands or
streams are issued by the U.S. Army Corps of Engineers, and mitigation
is required to offset impacts above minimal levels. Such mitigation
could include preservation or restoration of stream reaches inhabited
by the green floater. CWA section 401 requires that an applicant for a
Federal dredge or fill permit under section 404 obtain a certification
that any discharges from the facility will not violate water-quality
standards, including some established by States. Current State water
quality standards are designed to be protective of aquatic organisms;
however, freshwater mollusks may be more susceptible to the effects of
some pollutants than organisms for which the CWA standards were
developed. In addition, several State laws require setbacks or buffers
for development in or near aquatic systems but allow variances/waivers
for those restrictions. Accordingly, both Federal and State laws and
regulations afford some protection to water quality in the green
floater's habitat; however, because these laws do not prohibit
development, and because it is not known whether existing water quality
standards are adequate to protect the green floater, the impacts caused
and protections afforded by the regulatory framework are not precisely
known.
Several States are taking additional actions to improve habitat for
freshwater mussels, including green floaters. For example, the West
Virginia Department of Natural Resources has created a West Virginia
Conservation Strategy (2019) and works with partners to implement
watershed protection, stream protection, the restoration and
maintenance of natural flow regimes, and the reduction of pollutants
(e.g., road salt, industrial and agricultural effluents, and sewage) to
improve aquatic habitat for mussels. In a bridge project on the
Rappahannock River, for instance, the Virginia Department of Wildlife
Resources collected and relocated a total of 30 green floaters. Agency
staff subsequently documented recruitment of green floaters at the
relocation site in the Rappahannock River (Watson 2020, pers. comm.).
A variety of agencies and organizations (e.g., the Service, the
U.S. Department of Agriculture's Natural Resources Conservation
Service, The Nature Conservancy, Trout Unlimited, and American Rivers)
fund and implement projects to remove barriers to fish passage, plant
and maintain sufficient riparian buffers, and improve water quality by
capturing and treating wastewater and sediment before they enter rivers
and streams. These efforts have the effect of improving habitat for
freshwater mussels, among other aquatic species. For instance, Federal
and State agencies (Delaware, the District of Columbia, Maryland,
Pennsylvania, New York, Virginia, and West Virginia), local
governments, nonprofit organizations, and academic institutions have
worked together since 1983 to implement the Chesapeake Bay Watershed
Agreement, with the goal of reducing pollution (in particular, nutrient
pollution), restoring wetland and other aquatic habitats, and promoting
environmentally friendly land-use practices in the Chesapeake Bay
watershed. In 2017, a system was put in place to monitor progress and
document adaptive management strategies. These efforts have
demonstrated continued improvement of the habitat over time, which has
likely benefited green floater populations in the area.
Several captive breeding efforts have been conducted to determine
the feasibility of propagating green floaters. In 2017 and 2018, the
White Sulphur Springs National Fish Hatchery grew over 80,000 juvenile
green floaters in West Virginia. The Harrison Lake National Fish
Hatchery in Richmond has successfully propagated and released juvenile
green floaters into Virginia rivers and streams. These efforts have the
potential to restore populations of green floater in the future;
however, they are currently limited in scope, and long-term population
increases in the wild have yet to be documented.
Summary
Our analysis of the factors influencing the green floater revealed
multiple threats to the current and future viability of the species:
habitat loss or fragmentation; changes in water flows; degraded water
quality; and impacts of climate change. Factors like low fecundity that
are inherent to the species contribute to the likelihood of populations
becoming extirpated, especially when populations consist of just a few
individuals. Secondary factors that may pose a threat are the impacts
that invasive species may have on the green floater. Other potential
factors such as disease and predation were also considered but the
extent of these issues and their effects on green floater populations
are unknown. There are conservation programs and water quality
standards that may benefit freshwater mussels but few that target the
green floater specifically.
Many of the above-summarized risk factors may act synergistically
or additively on the green floater. The combined impact of multiple
stressors is likely more harmful than a single stressor acting alone.
For the green floater, the inherent factor of having low fecundity is
likely to work in conjunction with each of the other stressors to limit
the species' ability to recover from catastrophes (e.g., severe floods,
droughts) or to expand the population when conditions are favorable.
For a full explanation of the impact of stressors on the viability of
the species, see chapter 4 of the SSA report (Service 2021, pp. 36-57).
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Current Condition
To evaluate the current condition of the green floater, we
considered the resiliency of the known population, the redundancy of
populations or analysis
[[Page 48306]]
units, and the ecological or genetic representation within the species
across its range. We assessed the resiliency of the 179 analysis units
by evaluating the number of live green floaters reported per year and
trend, the length of occupied stream segments, and habitat quality that
were established based on evidence from documented studies, available
unpublished information, and expert opinion (see Service 2021, appendix
C). Metrics were evaluated in sequential order. Abundance and trend
data from surveys were considered the most accurate indicators of
current condition and the occupied habitat and habitat quality metrics
were only assessed if abundance and trend data were lacking. Then
current condition categories of high, medium, low, presumed extirpated,
and historical/unknown were assigned to the analysis units. Condition
categories were assigned as high, medium, or low resiliency in places
where one or more live individuals were found in a geographic area
since 1999. High resiliency indicates that green floaters are abundant
(more than 100 individuals) in the analysis unit and that the
population appears to be stable or increasing. For analysis units that
meet the requirements for high resiliency, the amount of occupied
habitat and habitat quality are not considered. Medium resiliency
indicates either that green floaters are common (10 to 100 individuals)
in the analysis unit and the population is stable or increasing, or
that green floaters are abundant in the analysis unit and the
population is decreasing. Medium resiliency also indicates that
occupied steams are greater or equal to 1 km (0.62 mi) in length. Low
resiliency indicates that green floaters are rare (fewer than 10
individuals) and that the likelihood of the population withstanding a
stochastic event is low. Low resiliency also indicates that occupied
steams are less than 1 km (0.62 mi) in length or observations are
highly fragmented, and that the habitat is considered by experts to be
less suitable for green floaters. Presumed extirpated was assigned to
geographic areas where green floaters have not been found recently
(1999 to 2019), and multiple surveys have been conducted and local
experts do not expect to find them there in the future. Historical/
unknown was assigned to geographic areas in which green floaters have
not been found recently (1999 to 2019), but sufficient surveys have not
been conducted to declare the analysis unit as having the condition
``presumed extirpated.''
The results of our analysis show that across the range of the green
floater, 16 percent of analysis units are designated as having medium
(13 percent) or high (3 percent) resiliency. The condition of the other
84 percent of analysis units is low (36 percent), presumed extirpated
(14 percent), or historical/unknown (34 percent). In many of the
analysis units where the green floater's condition is designated as
medium or high, distribution is not continuous and small groups of
green floaters are found in pockets of habitat. It is common to find
fewer than 10 live individuals at a location in a survey year, and in
many analysis units, few green floaters are found over long stretches
of river. For example, in several analysis units in New York (including
the Cohocton and Unadilla Rivers), green floaters were found in very
low numbers dispersed over 20 to 30 miles of suitable habitat. In
addition, there is one analysis unit in West Virginia (Knapp Creek) in
which green floaters were found in 2014 in high numbers but, due to
habitat alterations, were not found the subsequent year. In these
unique cases, information provided by local experts helped determine
the appropriate condition category.
Green floaters have not been found in approximately half (47
percent) of the analysis units since before 1999. However, many of
these analysis units were categorized as historical/unknown because not
enough surveys have been conducted to determine with high confidence
that the species no longer occurs. Of the 179 analysis units, 60 are
considered historical/unknown. Using present land use (e.g., landscape
attributes and water quality) and climate projections, we modeled the
probabilities of the historical/unknown units being in each category
(high, medium, low, or presumed extirpated). The results suggest that
almost all of the analysis units designated as historical/unknown are
likely in low condition, with a small subset of eight analysis units
having a high likelihood of being presumed extirpated. The analysis
indicates that green floaters currently occupy the majority (53 to 82
percent) of analysis units in their historical range (see full results
in table 1).
Table 1--Summary of the Current Condition of the Resiliency of Green
Floater Analysis Units, Including Modeled Results for Analysis Units in
the Historical/Unknown Category
------------------------------------------------------------------------
Number of analysis units
------------------------------------------
Presumed
High Medium Low extirpated
------------------------------------------------------------------------
Current condition of high, 6 24 64 25
medium, low, and presumed
extirpated analysis units...
Modeled condition of * 1 * 1 51 8
historical/unknown analysis
units.......................
------------------------------------------
Totals................... 7 25 115 33
------------------------------------------------------------------------
* One analysis unit (South Branch Potomac, West Virginia) was predicted
to have lower risk of being in the presumed extirpated or low
categories. Therefore, the unit is likely in medium or high condition,
but the model was not designed to predict one over the other.
The green floater must be able to respond to physical (e.g.,
climate conditions, habitat conditions or structure across large areas)
and biological changes (e.g., novel diseases, pathogens, predators) in
its environment into the future. The species' adaptive capacity is
shown through its multiple reproductive strategies (i.e., direct
development of glochidia and use of host fish) and ability to occur
over a large geographical range. The green floater occurs in both sides
of the Eastern Continental Divide in the Atlantic Slope and Mississippi
River drainages, a rare distribution for mussels, where it endures a
wide array of climatic conditions (e.g., temperatures) and elevational
gradients (e.g., 200 to 900 meters (650 to 3,000 feet) above sea level
in West Virginia). We assume that there is little connectivity between
populations separated by the Continental Divide now and there is
significant genetic information indicating the species does not exist
as a single continuous population as well. A zone of discontinuity
exists suggesting individuals in the northern part of the
[[Page 48307]]
range are evolving separately from those in the southern parts (King et
al. 1999, pp. S69-73, S76).
We considered the green floater's reproductive strategies as well
as its broad historical geographic range to determine the breadth of
the species' representation and adaptive capacity in five regions,
which we refer to as representation units (Great Lakes, Mid-Atlantic,
South Atlantic, Mississippi, and Gulf). The boundaries of these units
are based on the major watersheds and locations of known genetic
differences among green floater populations. The genetic differences
that exist among populations north and south of the Potomac River
indicate that populations in the Mid-Atlantic and South Atlantic
representation units may be adapted to local environmental conditions
(e.g., temperature).
As discussed in the paragraphs above, the majority of the analysis
units considered in the resiliency analysis are categorized as low or
presumed extirpated, and these are scattered throughout four
representation units (Great Lakes, Mid-Atlantic, South Atlantic, and
Mississippi). The green floater is likely extirpated entirely from the
Gulf representation unit. Analysis units designated as medium and high
are unevenly distributed across the representation units: 17 are found
in the Mid-Atlantic, 9 are found in the South Atlantic, 4 are found in
the Mississippi, and none are found in the Great Lakes representation
unit.
We considered the green floater's current redundancy by assessing
the number of and distribution of healthy populations across the
species' range. Thirty of the 179 analysis units (16 percent) were
found to be sufficiently resilient (in medium or high condition). Green
floater populations in six of these analysis units (designated as high
condition) are thought to be capable of expanding their range if
suitable adjacent habitat is available. Should a large-scale
catastrophic event occur, the species would be best able to recover
without human intervention in the Mid-Atlantic, South Atlantic, and
Mississippi representation units.
Future Condition Projections
To assess the future condition of the green floater, we projected
changes in land use and climate to model future conditions for each
analysis unit to year 2060. We first modeled the probability that an
analysis unit would be classified in each condition category based on
historical land use and climate patterns. These probabilities produced
by the present condition model represent the species' current (or
baseline) risk profile. We then modeled future condition for each
analysis unit out to year 2060 and incorporated a range of plausible
scenarios for each parameter, including land use projections under four
emission scenarios (A1B, A2, B1, and B2), and climate projections under
12 climate scenarios derived from six global climate models (bcc-csm1-
1-m, BNU-ESM, CanESM2, GFDL-ESM2G, GFDL-ESM2M, inmcm4) and two
representative concentration pathways (RCP 4.5 and 8.5) (see Service
2021, Appendix D). The presentation of the results focused on the
probability that an analysis unit would be classified as either
presumed extirpated or low condition, combining the two categories
discussed in the current condition analysis. Presumed extirpated and
low were grouped together in the results to accurately represent the
uncertainty of the model for each category.
The variables most likely to have negative effects on green floater
condition were the percentage of developed land, the patch density of
developed land (i.e., proportional cover of development and its spatial
pattern), and mean runoff, which likely reflect deteriorating habitat
quality from increased erosion, decreased substrate stability, and poor
water quality.
The results of the present condition model indicated that all
analysis units (179 total), except 4 in West Virginia and North
Carolina, have a mean probability greater than 50 percent of being
classified as presumed extirpated or low resiliency based on
surrounding land use. Sixty-four of the 94 analysis units with
confirmed occurrence are currently classified as having low resiliency,
and the remaining 30 appear to be at high risk of becoming so, based on
land use patterns. Most analysis units (97 of 179) are located within
the Mid-Atlantic representative unit, which is the central region that
has the greatest future risk. According to the future condition model,
2 of the 179 analysis units (1 percent) are projected to be in high
condition in 2060, 4 analysis units (2 percent) are projected to be in
medium condition, and 173 analysis units (97 percent) are projected to
be in presumed extirpated or low condition. The future risk of an
analysis unit being classified as presumed extirpated or low condition
at 2060 was generally similar to baseline risk throughout the range;
however, variation tended to be wider for most analysis units due to
the added uncertainty across multiple future scenarios. The major
rangewide trends indicate there is a high risk that future populations
will have low resiliency in the central portion of the range and,
according to the future condition model, a projected increase in risk
in the remaining southern portion. Most populations have already been
extirpated from regions where there is projected increase in
development (the metro areas of Washington, District of Columbia;
Philadelphia, Pennsylvania; New York, New York; and Albany, New York).
The major exceptions are analysis units in the southern portion of the
range surrounding Greensboro, North Carolina; Raleigh-Durham, North
Carolina; and Lynchburg, Virginia. The risk of extirpation (presumed
extirpated) is projected to increase 20 to 30 percent in populations in
these metro areas (James, Dan, Eno, Neuse, and Tar River watersheds) by
2060. This suggests that increased risk in the southern portion of the
range could have large impacts on species-level resilience and
representation.
In summary, there are very few locations where the green floater is
expected to continue to be healthy and sufficiently resilient into the
future. By the year 2060, 97 percent of the known locations are likely
to have low resiliency or will be extirpated. We anticipate a continued
declining status of the green floater due to ongoing and increasing
threats primarily related to increases in developed land use. Due to
the biology and current distribution of the species, it is unlikely
that green floaters will be able to disperse and shift their range in
response to predicted habitat changes or novel threats in most
watersheds.
Determination of Green Floater's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
[[Page 48308]]
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, our analysis indicates that the most important risk factor
affecting the green floater's current and future status and trends is
the destruction and modification of its habitat (Factor A). The primary
drivers of the status of the species to the present have been excessive
sedimentation, water quality degradation, alteration of water flows,
loss and fragmentation of habitat, invasive species, and the effects of
climate change (Factor A). Land-disturbing activities associated with
development (e.g., residential/commercial, energy, and transportation
development) have contributed to soil erosion and excessive
sedimentation in many areas of the green floater's range. Development
and an increase in impervious surfaces have created conditions in which
heavy rain events cause higher stream flows, which have eroded
streambanks and riverbanks, increased turbidity, and decreased
streambed stability at numerous sites. These conditions have also
caused sediment and pollutants from a wide variety of anthropogenic
sources (e.g., mining, agriculture, wastewater, industrial discharge,
oil and gas drilling operations) to wash into rivers and streams. Many
of these stressors have directly killed green floaters while others
have reduced the fitness of individuals or reduced fecundity.
We considered whether the green floater is presently in danger of
extinction and determined that, despite the stressors acting upon the
species, proposing endangered status is not appropriate. Green floaters
currently occupy the majority (53 to 82 percent) of analysis units in
their historical range. They are currently found in seven States,
primarily occurring in the Atlantic Slope. Individuals have recently
been found in New York, Pennsylvania, Maryland, West Virginia,
Virginia, North Carolina, and Tennessee, although the range has
contracted, and the species occurs as disjunct populations in rivers
and streams in these States. Green floaters have been observed recently
(since 1999) in 94 of the 179 analysis units and are likely to occur in
another 52 units for which the status was modeled based on current land
use patterns. Populations in 30 of the observed locations (32 percent)
are currently healthy and resilient to stochastic events. Populations
in six of the observed locations (6 percent) are likely capable of
expanding their range if suitable adjacent habitat is available. These
moderately to highly resilient populations are scattered across the
Mid-Atlantic, South Atlantic, and Mississippi regions, an area covering
both sides of the Eastern Continental Divide in the Atlantic Slope and
Mississippi River drainages. Given the number and distribution of
sufficiently resilient populations, the green floater is likely to
persist at multiple locations should a large-scale catastrophic event
occur, and it is unlikely that a single catastrophic event would affect
the entire species across its large range.
The species' current representation (adaptive capacity) is evident
through its use of two reproductive strategies (i.e., direct
development of glochidia and use of host fish) and continued
persistence over a large geographical range where the climatic and
habitat conditions vary widely. While threats are currently acting on
the species and many of those threats are expected to continue into the
future (see below), we did not find that the green floater is currently
in danger of extinction throughout all of its range. With 30 moderately
or highly resilient populations in three physiographic regions, the
current condition of the species provides for enough resiliency,
redundancy, and representation such that it is not currently at risk of
extinction.
While the green floater is not currently in danger of extinction,
under the Act we must determine whether the species is likely to become
in danger of extinction within the foreseeable future throughout all of
its range (i.e., whether the species warrants listing as threatened).
In the foreseeable future, we anticipate the status of the green
floater to continue to decline due to ongoing and increasing threats
primarily related to increases in developed land use (Factor A). By the
year 2060, 173 (97 percent) of green floater analysis units have a mean
probability greater than 50 percent of being in low condition or
extirpated, and only 6 analysis units (3 percent) are expected to be
moderately or highly resilient. Green floater populations in the Mid-
Atlantic and South Atlantic regions that are currently the most highly
resilient, especially those near growing metropolitan areas in North
Carolina and Virginia, are expected to experience the greatest change.
Loss of green floaters from these regions could impact the species'
resilience and representation by severely decreasing its distribution
in the central and southern parts of the range.
Concurrent with the growing threat of loss and degradation of
habitat caused by development, climate change (Factor A) is expected to
further exacerbate the degradation of green floater habitat through
increased water temperatures, changes and shifts in seasonal patterns
of precipitation and runoff, and extreme weather events such as flood
or droughts. These changes will make the habitat less hospitable to the
species in the future by disrupting fundamental ecological processes
upon which the species relies to meet basic needs such as food and
oxygen. The effects of climate change on the environment are expected
to disrupt and limit green floater reproduction as well. Because of
biological factors inherent to the species' life history, the green
floater has likely always occurred in smaller populations compared to
other mussel species. However, in conjunction with the climate-related
stressors such as floods and droughts, small population size puts the
species at high risk of becoming extirpated from sites where the
habitat is in poor condition, such as those conditions expected with
increased development. The cumulative effect of these threats will be
continued decreases in the green floater's resiliency, redundancy, and
representation, which will negatively impact the species' viability
into the future. Thus, after assessing the best available information,
we conclude that the green floater is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Service determines that a
species is threatened throughout all of its range, the Service will not
analyze whether the species is endangered in a significant portion of
its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species
[[Page 48309]]
is in danger of extinction in that portion. Depending on the case, it
might be more efficient for us to address the ``significance'' question
or the ``status'' question first. We can choose to address either
question first. Regardless of which question we address first, if we
reach a negative answer with respect to the first question that we
address, we do not need to evaluate the other question for that portion
of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the green floater, we choose to address
the status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify any portions of the range where the species
may be endangered.
We evaluated the range of the green floater to determine if the
species is in danger of extinction now in any portion of its range. The
range of a species can theoretically be divided into portions in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the definition of an endangered species.
For the green floater, we considered whether the threats or their
effects on the species are greater in any biologically meaningful
portion of the species' range. We examined the following threats:
excessive sedimentation, water quality degradation, alteration of water
flows, the loss and fragmentation of habitat, invasive species, climate
change, and factors inherent to the species, including cumulative
effects.
We identified one portion of the species' range that warranted
further consideration as a potentially significant portion of the
range. We identified the Great Lakes representation unit as a portion
of the range for further analysis because no populations with moderate
or high resiliency are located there. We analyzed whether the Great
Lakes representation unit might be a biologically meaningful portion of
the species' range where threats are impacting individuals differently
from how they are affecting the species elsewhere in its range.
Overall, we found that the loss and degradation of suitable habitats
caused by the threats is pervasive across the green floater's range and
we did not identify any threats that were concentrated in any of the
five representation units analyzed or other portions of the range,
including the Great Lakes. However, although we did not identify any
particular threats that are concentrated in the Great Lakes
representation unit, all six analysis units in that area have low
resiliency. It is possible that the threats affecting the Great Lakes
region could be having a disproportionate impact in that area compared
to the rest of the species' range. Therefore, the species' response to
those threats may be causing the species in that portion of the range
to have a different biological status than its biological status
rangewide.
Because we concluded that the biological status of the green
floater in the Great Lakes representation unit may differ from its
biological status rangewide, we next evaluated whether or not this area
is significant. Of the representation units that are currently occupied
by green floaters, the Great Lakes unit is the smallest, covering the
smallest land area and containing only 6 percent of the analysis units
with confirmed occupancy rangewide. Although all representation units
provide some contribution to the species' resiliency, representation,
and redundancy, the Great Lakes representation unit encompasses only a
small portion of the total range, the habitat there is not high quality
relative to the other portions of the range, and the unit does not
constitute high or unique value habitat for the species. Therefore, we
concluded that the Great Lakes representation unit is not significant
in the context of our ``significant portion of the range'' analysis.
The Gulf representation unit, which is part of the green floater's
larger historical range, has no resilient populations, but because it
is completely extirpated, we cannot consider it as part of this
analysis to be a significant portion of the range.
While there may be some variation in the intensity of threats in
the five representation units, we found that the loss and degradation
of suitable habitats caused by the threats is pervasive across the
species' range. Consequently, no portion of the species' range provides
a basis for determining that the species is in danger of extinction in
a significant portion of its range, and we determine that the species
is likely to become in danger of extinction within the foreseeable
future throughout all of its range. This does not conflict with the
courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not need to consider
whether any portions are significant, and, therefore, we did not apply
the aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the green floater meets the Act's definition
of a threatened species. Therefore, we propose to list the green
floater as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
[[Page 48310]]
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New York Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Alabama, Georgia,
Maryland, New Jersey, New York, North Carolina, Pennsylvania,
Tennessee, Virginia, and West Virginia would be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the green floater. Information on our grant programs that
are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
Although the green floater is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of discretionary actions for the green floater that may be
subject to conference and consultation procedures under section 7 are
land management or other landscape-altering activities on Federal lands
administered by the U.S. Fish and Wildlife Service, U.S. Forest
Service, and National Park Service, as well as actions on State,
Tribal, local, or private lands that require a Federal permit (such as
a permit from the U.S. Army Corps of Engineers under section 404 of the
Clean Water Act or a permit from the Service under section 10 of the
Act) or that involve some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation Administration, or
the Federal Emergency Management Agency). Federal actions not affecting
listed species or critical habitat--and actions on State, Tribal,
local, or private lands that are not federally funded, authorized, or
carried out by a Federal agency--do not require section 7 consultation.
Examples of Federal agency actions that may require consultation for
the green floater could include replacing and repairing bridges and
culverts, road construction projects, and managing vegetation near
streams. Federal agencies should coordinate with the local Service
Field Office (see FOR FURTHER INFORMATION CONTACT, above) with any
specific questions on section 7 consultation and conference
requirements.
It the policy of the Service, as published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the extent known at the
time a species is listed, specific activities that will not be
considered likely to result in violation of section 9 of the Act. To
the extent possible, activities that will be considered likely to
result in violation will also be identified in as specific a manner as
possible. The intent of this policy is to increase public awareness of
the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing. Although most of
the prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of
any regulation under section 4(d) pertaining to any threatened species
of fish or wildlife, or threatened species of plant, respectively.
Section 4(d) of the Act directs the Secretary to promulgate protective
regulations that are necessary and advisable for the conservation of
threatened species. As a result, we interpret our policy to mean that,
when we list a species as a threatened species, to the extent possible,
we identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
[[Page 48311]]
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the New York
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the green floater by encouraging management of the
habitat in ways that meet both stream management considerations and the
conservation needs of the green floater. The provisions of this
proposed rule are one of many tools that we would use to promote the
conservation of the green floater. This proposed 4(d) rule would apply
only if and when we make final the listing of the green floater as a
threatened species.
As mentioned above in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they authorize, fund, 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, even
before the listing of any species or the designation of its critical
habitat is finalized, section 7(a)(4) of the Act requires Federal
agencies to confer with the Service on any agency action that is likely
to jeopardize the continued existence of any species proposed to be
listed under the Act or result in the destruction or adverse
modification of critical habitat proposed to be designated for such
species.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, as with an endangered species,
if a Federal agency determines that an action is ``not likely to
adversely affect'' a threatened species, it will require the Service's
written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (50 CFR
402.14(a)).
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the green
floater's conservation needs. As discussed above in Summary of
Biological Status and Threats, we have concluded that the green floater
is likely to become in danger of extinction within the foreseeable
future primarily due to habitat degradation caused by development and
climate change. Section 4(d) requires the Secretary to issue such
regulations as she deems necessary and advisable to provide for the
conservation of each threatened species and authorizes the Secretary to
include among those protective regulations any of the prohibitions that
section 9(a)(1) of the Act prescribes for endangered species. We find
that, if finalized, the protections, prohibitions, and exceptions in
this proposed rule as a whole satisfy the requirement in section 4(d)
of the Act to issue regulations deemed necessary and advisable to
provide for the conservation of the green floater.
The protective regulations we are proposing for green floater
incorporate prohibitions from the Act's section 9(a)(1) to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. This protective regulation
includes all of these prohibitions because the green floater is at risk
of extinction within the foreseeable future and putting these
prohibitions in place will help prevent further declines, preserve the
species' remaining populations, slow its rate of decline, and decrease
synergistic, negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the green floater by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally.
[[Page 48312]]
Regulating take would help preserve the species' remaining populations,
slow their rate of decline, and decrease synergistic, negative effects
from other ongoing or future threats. Therefore, we propose to prohibit
take of the green floater, except for take resulting from those actions
and activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition against take of endangered
wildlife, as set forth in 50 CFR 17.21 and certain other specific
activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
green floater, are not expected to rise to the level that would have a
negative impact (i.e., would have only de minimis impacts) on the
species' conservation. The proposed exceptions to these prohibitions
include streambank restoration projects and bridge and culvert
replacement or removal projects (described below) that are expected to
have negligible impacts to the green floater and its habitat.
A major threat to the green floater is the degradation of stream
habitat, particularly the erosion of banks, which leads to excessive
sedimentation and poor water quality that can bury green floaters or
deprive them of oxygen and nutrients. Stream bank restoration projects
that stabilize and vegetate bare or incised stream banks help to reduce
bank erosion and concomitant instream sedimentation and improve habitat
conditions for the species. Streambank projects that use vegetation and
bioengineering techniques (e.g., instream structures to redirect flows)
rather than hardscapes (e.g., rock revetments and riprap) to stabilize
the habitat create more suitable conditions for green floaters.
Vegetated banks contribute to cooler water temperatures and provide
habitat for other wildlife. When streambanks are stable, the streams
are more resilient to damage caused by catastrophic events related to
climate change like heavy precipitation and floods.
Bridge and culvert replacement or removal projects can benefit the
green floater by restoring water flow to stream segments that have
become disconnected from the larger watershed or improving fish passage
or both. In places where bridges and culverts have collapsed, become
blocked, or in some other way prevent the flow of water, green floater
glochidia are not able to disperse to other suitable habitat, and
reproduction and gene flow become limited. Water flows that are too
slow to hold adequate oxygen can cause green floaters to become
stressed or die. Before conducting instream activities in places where
green floaters may occur, surveys are required to determine if they are
present. Survey plans must be submitted to and approved by the local
Service field office before conducting surveys. All surveys must be
conducted by a qualified and permitted biologist, as allowed by Section
10(a)(1)(A) of the Act. If green floaters are found, the biologist must
coordinate with their local Service field office regarding salvage and
relocation of individuals to suitable habitat before project
implementation. Should green floaters be relocated, monitoring must be
conducted after project implementation. In most cases where water flows
are very low, we would not expect conditions to support live green
floaters. This step is meant to prevent unintended harm where
individuals have survived and preserve potential adaptive traits to
low-quality habitats.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve green floater that may result in
otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the green
floater. However, interagency cooperation may be further streamlined
through planned programmatic consultations for the species between us
and other Federal agencies, where appropriate. We ask the public,
particularly State agencies and other interested stakeholders that may
be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that we could
provide or use, respectively, to streamline the implementation of this
proposed 4(d) rule (see Information Requested, above).
III. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures
[[Page 48313]]
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 each Federal agency 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 also
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. Rather, designation
requires that, where a landowner requests Federal agency funding or
authorization for an action that may affect an area designated as
critical habitat, the Federal agency consult with the Service under
section 7(a)(2) of the Act. If the action may affect the listed species
itself (such as for occupied critical habitat), the Federal agency
would have already been required to consult with the Service even
absent the designation because of the requirement to ensure that the
action is not likely to jeopardize the continued existence of the
species. Even if the Service were to conclude after consultation that
the proposed activity is likely to result in destruction or adverse
modification of the critical habitat, the Federal action agency and the
landowner are not required to abandon the proposed activity, or to
restore or recover the species; instead, they must 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).
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.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for 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 ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. 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 the 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 those planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for
[[Page 48314]]
seed germination, protective cover for migration, or susceptibility to
flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or absence of a particular level of nonnative species
consistent with conservation needs of the listed species. The features
may also be combinations of habitat characteristics and may encompass
the relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
As described above under Summary of Biological Status and Threats,
the green floater occurs in small streams to large rivers with stable
flow regimes and suitable substrates. When they occur in larger streams
and rivers, they are found in quieter pools and eddies, away from
strong currents. Their mobility is limited, and fast flowing currents
or high-water events can cause them to lose their foothold and be
washed downstream.
The primary habitat elements that influence resiliency of the green
floater include water flow, streambed substrate, water quality, water
temperature, and conditions that support their host fish. All life
stages of green floaters require aquatic habitats with stable sand and
gravel substrates, a sufficient amount of clean water with slow to
moderate flow and refugia (i.e., eddies and ponded areas in streams),
and sufficient food resources (i.e., microscopic particulates from
plankton, bacteria, detritus, or dissolved organic matter). Based on
what is known from studying surrogate species, glochidia require
temperatures between 59 and 68 [deg]F (15 and 20 [deg]C) for release,
and juvenile mussels cannot survive temperatures above 86 [deg]F (30
[deg]C). Green floaters have the ability reproduce by directly
metamorphosing glochidia without requiring an intermediate fish host,
but the use of fish hosts is necessary for upstream dispersal of the
species. These features are also described above as species needs under
Summary of Biological Status and Threats, and a full description is
available in the SSA report (Service 2021, pp. 18-35).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of green floater from studies of the species' habitat,
ecology, and life history as described below. Additional information
can be found in the SSA report (Service 2021, entire; available on
https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012). We
have determined that the following physical or biological features are
essential to the conservation of green floater:
(1) Flows adequate to maintain both benthic habitats and stream
connectivity, allow glochidia and juveniles to become established in
their habitats, allow the exchange of nutrients and oxygen to mussels,
and maintain food availability and spawning habitat for host fishes.
The characteristics of such flows include a stable, not flashy, flow
regime, with slow to moderate currents to provide refugia during
periods of higher flows.
(2) Suitable sand and gravel substrates and connected instream
habitats characterized by stable stream channels and banks and by
minimal sedimentation and erosion.
(3) Sufficient amount of food resources, including microscopic
particulate matter (plankton, bacteria, detritus, or dissolved organic
matter).
(4) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including, but not limited to, those general to other
mussel species:
Adequate dissolved oxygen;
Low salinity;
Low temperature (generally below 86 [deg]F (30 [deg]C));
Low ammonia (generally below 0.5 parts per million total
ammonia-nitrogen), PAHs, PCBs, and heavy metal concentrations; and
No excessive total suspended solids and other pollutants,
including contaminants of emerging concern.
(5) The presence and abundance of fish hosts necessary for
recruitment of the green floater (including, but not limited to,
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris),
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis)).
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 which may require special management considerations or
protection. The features essential to the conservation of the green
floater may require special management considerations or protection to
reduce the following threats: (1) land-disturbing activities associated
with development (i.e., residential/commercial, energy, and
transportation development); (2) agriculture and forestry activities
that do not implement best management practices to minimize soil
erosion and increased overland flow and (3) barriers that fragment
streams and rivers (e.g., dams and improperly installed or maintained
culverts); (4) contaminants from point and non-point sources (e.g.,
spills, industrial discharges, municipal effluents, agricultural
runoff, and atmospheric deposition from precipitation); (5) impacts of
climate change; and (6) potential effects of nonnative species.
Special management considerations or protection may be required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to, protecting and restoring streams and streambank habitats,
including stable sand and gravel substrates; maintaining and restoring
slow to moderate, not flashy, water flows in streams that may support
the species; maintaining and restoring connectivity between streams;
reducing or removing contaminants from waterways and sediments;
coordinating with landowners and local managers to implement best
management practices during agriculture and forestry activities; and
minimizing the likelihood that agriculture or energy development
projects will impact the quality or quantity of suitable habitat.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical
[[Page 48315]]
area occupied by the species at the time of listing and any specific
areas outside the geographical area occupied by the species to be
considered for designation as critical habitat. We are not currently
proposing to designate any areas outside the geographical area occupied
by the species because we have not identified any unoccupied areas that
meet the definition of critical habitat, and we have determined that
the occupied areas are sufficient to conserve the species.
We anticipate that recovery will require maintaining and, where
necessary, improving habitat and habitat connectivity to ensure the
long-term viability of the green floater. We have determined that the
areas containing one or more of the essential physical or biological
features and occupied by the green floater are sufficient to maintain
the species' resiliency, redundancy, and representation and to conserve
the species. Therefore, we are not currently proposing to designate any
areas outside the geographical area occupied by the species.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat stream
segment boundaries using the following criteria: Evaluate suitability
of streams within the hydrologic units occupied at the time of listing
and delineate those areas that contain some or all of the physical or
biological features necessary to support life-history functions
essential to the conservation of the species. All stream segments
proposed for designation contain one or more of the physical or
biological features and support multiple life-history processes.
From the complete list of occupied watersheds (see Service 2021,
appendix C), which were based on HUC 10 watersheds, we identified a
subset of watersheds that provide the most highly suitable green
floater habitat and present the best opportunities for the species'
recovery. This subset includes all the analysis units classified as
being in medium or high condition according to the SSA report (version
1.0; Service 2021, pp. 61-76). This subset also includes analysis units
classified or modeled as being in low condition that are between or
adjacent to units in medium or high condition. These low condition
areas represent areas where green floaters are expected to be able to
increase in numbers with the protections afforded by the Act,
potentially increasing the future resiliency of the species. We then
also identified analysis units classified or modeled as being in low
condition in the SSA report, but that are disconnected from watersheds
determined to be in better condition, that present opportunities to
increase the species' future resiliency, redundancy, and
representation.
The critical habitat designation does not include all rivers and
streams currently occupied by the species, nor all rivers and streams
known to have been occupied by the species historically. Instead, it
includes only the occupied rivers and streams within the current range
that we determined have the physical or biological features that are
essential to the conservation of these species and meet the definition
of critical habitat. These rivers and streams contain populations most
likely to be self-sustaining over time and populations that will allow
for the maintenance and expansion of the species. Adjacent units and
disconnected units in low condition that are not being proposed as
critical habitat have been omitted because they are located near highly
developed areas or have very low-quality habitat that is unlikely to be
restored to a condition suitable to support a healthy population of
green floaters. Analysis units where green floater occupancy has not
been confirmed since before 1999 have also been omitted because they
are not considered currently occupied. The time period between 1999 and
2019 was selected to represent recent occurrences because this period
covers approximately three generations of green floaters and is notable
for the relative increase in mussel survey effort. We are not
designating any areas outside the areas confirmed occupied by the green
floater during this time period because we determined that these areas
are sufficient to conserve the species.
In the selected analysis units, we identified the coordinates of
the occupied rivers and streams and then refined the length of each
segment by matching the starting and ending points to locations of
known green floater occurrences collected between 1999 and 2019. We
then expanded the area upstream to the next named tributary and
downstream to the next confluence, stream intersection, or barrier. We
assumed that where green floaters have been observed or collected, the
entire stream is occupied upstream to the next named tributary and
downstream to the next confluence, stream intersection, or barrier.
Thus, we have interpreted ``occupied'' in a conservative manner and
have assumed green floaters to be present in all stream segments with
similar conditions that are physically accessible to the ones in which
they have been documented.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
the physical or biological features necessary for green floaters. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat stream and river
segments that we have determined are occupied at the time of listing
(i.e., currently occupied) and that contain one or more of the physical
or biological features that are essential to support life-history
processes of the species.
Stream and river segments are proposed for designation based on one
or more of the physical or biological features being present to support
the green floater's life-history processes. All of the segments contain
one or more of the physical or biological features necessary to support
the green floater's particular use of that habitat. Because all of the
proposed segments are currently occupied by the species, they are
likely to contain all of the physical or biological features necessary
to support the species to some degree, but the quality of those
physical or biological features may not be in optimal condition. For
example, a unit may have some sand and gravel substrates but the
suitability of these substrates for green floaters may be improved if
sources of sedimentation and erosion were minimized.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the 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 https://www.regulations.gov at Docket No. FWS-R5-ES-
2023-0012 and on our
[[Page 48316]]
internet site at https://www.fws.gov/office/new-york-ecological-services-field.
Proposed Critical Habitat Designation
We are proposing to designate approximately 2,553 river km (1,586
river mi) in eight units as critical habitat for the green floater. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
green floater. The eight areas we propose as critical habitat are the
following watersheds: (1) Southwestern Lake Ontario, (2) Susquehanna,
(3) Potomac, (4) Kanawha, (5) Lower Chesapeake, (6) Chowan-Roanoke, (7)
Neuse-Pamlico, and (8) Upper Tennessee. Table 2 shows the proposed
critical habitat units and subunits and the approximate area of each.
Table 2--Proposed Critical Habitat Units for the Green Floater
[All proposed units are occupied by the species]
------------------------------------------------------------------------
Adjacent riparian
Critical habitat unit land ownership by Approximate river km
type (mi)
------------------------------------------------------------------------
Unit 1: Southwestern Lake
Ontario Watershed (NY):
1. Genesee River........ Private............. 55.6 (34.6)
Unit 2: Susquehanna
Watershed (NY and PA):
2a. Susquehanna River... Public (State)...... 10.3 (6.4)
Private............. 335.5 (208.5)
2b. Fivemile Creek...... Private............. 13.9 (8.7)
2c. Cohocton River...... Public (State, 6.6 (4.1)
Local). 41.1 (25.6)
Private.............
2d. Tioga River......... Public (State)...... 0.6 (0.4)
Private............. 15.1 (9.4)
2e. Chemung River....... Public (State, 11.0 (6.8)
Local). 62.0 (38.5)
Private.............
2f. Catatonk Creek...... Private............. 34.2 (21.2)
2g. Tunkhannock Creek... Private............. 4.5 (2.8)
2h. Tioughnioga River... Public (Local)...... 0.2 (0.1)
Private............. 59.2 (36.8 )
2i. Chenango River...... Public (State)...... 6.3 (3.9)
Private............. 134.7 (83.7)
2j. Unadilla River...... Private............. 93.7 (58.2)
2k. Upper Susquehanna Private............. 99.3 (61.7)
River.
2l. Pine Creek.......... Public (State)...... 39.1 (24.3)
Private............. 76.4 (47.5)
2m. Marsh Creek......... Public (State)...... 1.7 (1.1)
Private............. 2.7 (1.7)
2n. West Branch Private............. 45.8 (28.5)
Susquehanna.
2o. Buffalo Creek....... Public (Local)...... 7.4 (4.6)
Private............. 5.8 (3.5)
2p. Penns Creek......... Public (Local)...... 0.3 (0.2)
Private............. 35.2 (21.9)
Unit 3: Potomac Watershed
(PA, MD, and WV):
3a. Potomac River....... Public (Federal, 52.7 (32.7)
State). 27.6 (17.1)
Private.............
3b. Patterson Creek..... Private............. 22.3 (13.9)
3c. Sideling Hill Creek. Public (State)...... 16.5 (10.3)
Private............. 34.8 (21.6)
3d. Cacapon River....... Private............. 123.0 (76.5)
3e. Licking Creek....... Private............. 6.7 (4.1)
3f. Back Creek.......... Private............. 46.8 (29.1)
Unit 4: Kanawha Watershed
(NC, VA, and WV):
4a. Greenbrier.......... Public (Federal, 258.0 (160.3)
State). 1.7 (1.1)
Private.............
4b. Deer Creek.......... Public (Federal, 17.4 (10.8)
State).
4c. Knapp Creek......... Public (Federal, 30.3 (18.8)
State, Local). 1.9 (1.2)
Private.............
4d. New River........... Public (State)...... 6.5 (4.0)
Private............. 9.0 (5.6)
4e. Little River Private............. 17.9 (11.1)
(Kanawha).
4f. South Fork New River Private............. 146.7 (90.5)
Unit 5: Lower Chesapeake
Watershed (VA):
5a. Tye River........... Public (Federal).... 0.6 (0.4)
Private............. 53.5 (33.2)
5b. Pedlar River........ Private............. 8.6 (5.4)
Unit 6: Chowan-Roanoke
Watershed (NC and VA):
6a. Dan River........... Public (State, 2.5 (1.6)
Local). 218.8 (135.9)
Private.............
6b. South Mayo.......... Public (State)...... 1.8 (1.1)
Private............. 2.8 (1.8)
6c. North Mayo.......... Public (State)...... 2.5 (1.6)
Private............. 3.4 (2.1)
[[Page 48317]]
6d. Mayo River.......... Public (State)...... 15.9 (9.9)
Private............. 9.2 (5.7)
6e. Meherrin River...... Private............. 106.1 (65.9)
Unit 7: Neuse-Pamlico
Watershed (NC):
7a. Neuse River......... Public (State, 16.0 (9.9)
Local). 10.8 (6.7)
Private.............
7b. Eno River........... Public (Federal, 33.1 (20.6)
State, Local). 21.3 (13.2)
Private.............
7c. Flat River.......... Public (Federal, 17.6 (10.9)
State, Local). 13.3 (8.3)
Private.............
7d. Little River (Neuse- Public (State, 7.4 (4.6)
Pamlico). Local). 1.2 (0.8)
Private.............
Unit 8: Upper Tennessee
Watershed (NC):
8. Watauga River........ Private............. 16.0 (9.9)
Total............... .................... 2,552.6 (1,586.1)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all proposed units, and reasons
why they meet the definition of critical habitat for the green floater,
below. Each of these proposed units and subunits are occupied by the
species and currently support the breeding, feeding, and sheltering
needs for the species.
Unit 1: Southwestern Lake Ontario Watershed
Unit 1 consists of 55.6 stream km (34.6 mi) of the Genesee River in
the Southwestern Lake Ontario watershed in Livingston County, New York,
from New York Route 36 downstream to the river's confluence with White
Creek. It includes the river channel up to the ordinary high water
mark. Riparian lands that border the unit are all (100 percent)
privately owned. This unit contains one or more of the physical or
biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 1 to address excess nutrients, sediment, and pollutants
that enter the river as well as recreation and management activities.
Sources of these types of pollution are wastewater, agricultural
runoff, and urban stormwater runoff that could come from the nearby
towns of Avon, Geneseo, and Mount Morris adjacent to the river or towns
located upstream. The Mount Morris Lake and Dam and Genesee River Gorge
are approximately 2.4 km (1.5 mi) upstream of Unit 1. Management
activities, such as debris and sediment removal at the dam and lake, as
well as water releases from the dam, have the potential to impact the
water quality and quantity in Unit 1.
Unit 2: Susquehanna Watershed
Unit 2 consists of 16 subunits of the Susquehanna watershed in New
York (Broome, Chemung, Chenango, Cortland, Delaware, Herkimer, Madison,
Otsego, Steuben, and Tioga Counties) and Pennsylvania (Bradford,
Clinton, Columbia, Dauphin, Lackawanna, Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder, Tioga, Union, and Wyoming Counties).
Each of the subunits in this unit contain one or more of the physical
or biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 2 to address excess nutrients, sediment, and pollutants
that enter the river, construction projects, and conservation
activities. Several major urban areas are encompassed by Unit 2,
including Scranton, Pennsylvania, and Binghamton, New York, in addition
to numerous small towns adjacent to rivers and streams that have the
potential to influence the water quality and quantity in the unit.
Future construction projects to repair or replace bridges, roads,
culverts, and embankments; to remove debris; and to repair or remove
hazard dams have the potential to impact habitat in this unit as well.
In New York, the U.S. Department of Agriculture's Natural Resources
Conservation Service supports several programs designed to restore and
conserve rivers and streams. Future restoration plans include
construction of stream crossings, planting of riparian buffers,
installation of streambank and shoreline protection, channel bed
stabilization, and clearing and snagging woody debris from streams.
During construction, these restoration activities may result in short-
term impacts to water quality but are expected to benefit the green
floater in the long term.
The subunits of Unit 2 overlap with numerous public lands for which
existing protections and management will likely maintain habitat
conditions that support the green floater (water quality, water
quantity/flow, instream substrate, and connectivity) into the future.
In Pennsylvania, these public lands include State-owned forests and
natural areas (e.g., Tioga and Tiadaghton State Forests, Pine Gorge
State Natural Area, Algerine Wild Area) and State Parks (e.g., Colton
Point and L. Harrison State Parks). In New York, public lands include
the Chenango Valley State Park and a series of easements associated
with the Federal Wetlands Reserve Program. Each of these land types
ensure some protection from development and land-disturbing activities.
Activities on Wetlands Reserve Program easements that would affect
vegetation or hydrology, or would alter wildlife patterns, would first
require a compatible use permit, and only activities consistent with
the long-term protection and enhancement of the easement area are
authorized.
Subunit 2a is a total length of 345.8 km (214.9 mi) of the
Susquehanna River in Tioga County, New York, and Columbia, Montour, and
Northumberland Counties, Pennsylvania. This subunit includes the river
channel up to the ordinary high water mark. The upper section of
subunit 2a flows from the entrance of Owego Creek to Harvey's Creek.
The lower section starts at Nescopeck Creek and flows to the confluence
of Fishing Creek. The land adjacent to the Susquehanna River in this
subunit is primarily private (97 percent), although
[[Page 48318]]
some land along the river is owned by the State of Pennsylvania (3
percent).
Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile Creek
in Steuben County, New York. This subunit includes the river channel up
to the ordinary high water mark. It starts at the entrance of an
unnamed tributary and ends at the confluence of Fivemile Creek and the
Cohocton River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2c consists of a 47.6-km (29.6-mi) segment of the Cohocton
River in Steuben County, New York. This subunit includes the river
channel up to the ordinary high water mark. It starts at the confluence
of Cotton Creek and Tenmile Creek and ends at the confluence of the
Tioga River and Middle Cohocton Creek. The land adjacent to the
Cohocton River in this subunit is primarily private (86 percent),
although some land along the river is owned by the State of New York (6
percent) and local governments (8 percent).
Subunit 2d consists of a 15.7-km (9.7-mi) segment of the Canisteo
and Tioga Rivers in Steuben County, New York. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of Tuscarora Creek at the Canisteo River and ends at the
confluence of the Tioga River and Chemung River. The land adjacent to
the Canisteo and Tioga Rivers in this subunit is primarily private (96
percent), although some land along the river is owned by the State (4
percent).
Subunit 2e consists of a 73.0-km (45.4-mi) segment of the Chemung
River in Steuben and Chemung Counties, New York, and Bradford County,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the confluence of the Tioga
River with the Cohocton River and ends at the confluence of the Chemung
River and the Susquehanna River. The land adjacent to the Tioga River
in this subunit is primarily private (85 percent), although some land
along the river is owned by the State (9 percent) and local governments
(6 percent).
Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk
Creek in Tioga County, New York, and Bradford County, Pennsylvania.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence of Miller Creek and Michigan Creek
and ends at the confluence of Fishing Creek and West Branch Owego
Creek. Riparian lands that border the subunit are all (100 percent)
privately owned.
Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Billings Mill
Brook and ends at the confluence of Tunkhannock Creek and the
Susquehanna River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2h consists of a 59.4-km (36.9-mi) segment of the
Tioughnioga River in Broome and Cortland Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga
River and the Chenango River. The land adjacent to the Tioughnioga
River in this subunit is primarily private (nearly 100 percent),
although some land along the river is owned by local governments (less
than 1 percent).
Subunit 2i consists of a 140.9-km (87.6-mi) segment of the Chenango
River in Broome, Chenango, and Madison Counties, New York. This subunit
includes the river channel up to the ordinary high water mark. It
starts in the Sangerfield River downstream of Ninemile Swamp and ends
at the confluence of the Chenango River and the Susquehanna River. The
land adjacent to the Chenango River in this subunit is primarily
private (96 percent), although some land along the river is owned by
the State of New York (4 percent).
Subunit 2j consists of a 93.7-km (58.2-mi) segment of the Unadilla
River in Chenango, Herkimer, and Otsego Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of North Winfield Creek and ends at the
confluence of the Unadilla River and the Susquehanna River. Riparian
lands that border the subunit are all (100 percent) privately owned.
Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties,
New York, and Susquehanna County, Pennsylvania. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the entrance of Starrucca Creek.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine Creek
in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Phoenix Run and ends at the confluence of
Pine Creek and the Susquehanna River. The land adjacent to Pine Creek
in this subunit is owned by private entities (66 percent) and the State
of Pennsylvania (34 percent).
Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek in
Tioga County, New York. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Asaph Run
and ends at the confluence of Marsh Creek and Pine Creek. The land
adjacent to Marsh Creek in this subunit is owned by private entities
(62 percent) and the State of Pennsylvania (38 percent).
Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West
Branch Susquehanna River in Lycoming, Northumberland, and Union
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Muncy Creek
and ends at the confluence of the West Branch Susquehanna River and the
Susquehanna River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo Creek
in Union County, Pennsylvania. This subunit includes the river channel
up to the ordinary high water mark. It starts at the intersection of
Johnson Mill Road and Buffalo Creek and ends at the confluence of
Buffalo Creek and the West Branch Susquehanna River. The last segment
of Buffalo Creek is also known as Mill Race. The land adjacent to
Buffalo Creek in this subunit is owned by local governments (56
percent), nongovernmental organizations (5 percent), and private
entities (39 percent).
Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns Creek
in Dauphin, Northumberland, Perry, Snyder, and Union Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of an unnamed
tributary near the intersection of Penns Creek Road and Wildwood Road
and ends at the confluence of Penns Creek and the Susquehanna River.
The land adjacent to Penns Creek in this subunit is primarily private
(99 percent), although some land along the creek is owned by local
governments (1 percent).
Unit 3: Potomac Watershed
Unit 3 consists of six subunits of the Potomac watershed in
Pennsylvania (Bedford and Fulton Counties),
[[Page 48319]]
Maryland (Allegany and Washington Counties), and West Virginia
(Berkeley, Hampshire, Hardy, Mineral, and Morgan Counties). Each of the
subunits in this unit contain one or more of the physical or biological
features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 3 to address excess nutrients, sediment, and pollutants
that enter the river, as well as maintenance and construction projects.
Sources of these types of pollution are wastewater, agricultural
runoff, and urban stormwater runoff that come from Cumberland,
Maryland; Martinsburg, West Virginia; and numerous small towns adjacent
to rivers and streams that influence the water quality and quantity in
the unit. The Potomac River is adjacent to the Chesapeake and Ohio
(C&O) Canal National Historical Park, a federally owned property
managed by the National Park Service. In support of a recent project to
stabilize a retaining wall within the banks of the Potomac River,
National Park Service staff surveyed for freshwater mussels and
observed 10 green floaters. Anticipated maintenance projects in the
National Historical Park include dredging of sediment and repairs of
utility lines, walls, and boat ramps along the C&O Canal. Future
construction projects throughout the watershed to repair or remove
hazard dams and canals, dredge sections of the river, install
pipelines, and replace bridges have the potential to impact water
quality and quantity in this unit as well.
The subunits of Unit 3 overlap with public lands for which
protections and management will likely enable habitat conditions that
support the green floater to remain high into the future. In Maryland,
overlapping public lands include State-owned forests and parks (e.g.,
Green Ridge State Forest and Fort Frederick State Park) and the C&O
Canal National Historical Park. Beginning in Pennsylvania and
continuing into Maryland, the forests and streams of Sideling Hill
Creek are maintained as a nature preserve by The Nature Conservancy.
These land types ensure some protection from development and land-
disturbing activities.
Subunit 3a consists of an 80.3-km (49.9-mi) segment of the Potomac
River in Washington County, Maryland, and Berkeley County, West
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of the Cacapon River and
ends at the entrance of Downey Branch. The land adjacent to the Potomac
River in this subunit is owned by the Federal (62 percent) and State (4
percent) governments and private entities (34 percent).
Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson
Creek in Mineral County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Cabin Run and ends at the confluence of Patterson Creek and the
Potomac River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling Hill
Creek in Allegany County, Maryland, and Bedford and Fulton Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the Rice Road crossing of West
Branch Sideling Hill Creek and ends at the confluence of Sideling Hill
Creek and the Potomac River. The land adjacent to Sideling Hill Creek
in this subunit is owned by State governments (32 percent),
nongovernmental organizations (7 percent), and private entities (61
percent).
Subunit 3d consists of a 123.0-km (76.5-mi) segment of the Cacapon
River in Washington County, Maryland; and Hardy, Hampshire, and Morgan
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Trout Run
and ends at the confluence of the Cacapon River and the Potomac River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking Creek
in Washington County, Maryland. This subunit includes the river channel
up to the ordinary high water mark. It starts at the crossing of
Pecktonville Road and ends at the confluence of Licking Creek and the
Potomac River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back Creek in
Berkeley County, West Virginia. This subunit includes the river channel
up to the ordinary high water mark. It starts at the entrance of Big
Run and ends at the confluence of Back Creek and the Potomac River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Unit 4: Kanawha Watershed
Unit 4 consists of six subunits of the Kanawha watershed in North
Carolina (Allegany, Ashe, and Watauga Counties), Virginia (Carroll and
Grayson Counties), and West Virginia (Greenbrier, Monroe, Pocahontas,
and Summers Counties). Each of the subunits in this unit contain one or
more of the physical or biological features essential to the species'
conservation.
Special management considerations or protection may be required
within Unit 4 to address excess nutrients, sediment, and pollutants
that enter the river, as well as land-disturbing activities. Sources of
these types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff from the nearby towns of Boone, North Carolina;
Lewisburg, West Virginia; and numerous small towns in the watershed
that influence the water quality and quantity in the unit. Parts of the
Kanawha waterhead are encompassed by the Monongahela National Forest, a
federally owned property managed by the U.S. Forest Service.
Anticipated projects within the National Forest that could impact water
quality and quantity in this unit include vegetation management and
removal, and maintenance of locks and dams.
In addition to the Monongahela National Forest, the subunits of
Unit 4 overlap with numerous other public lands for which protections
and management will help maintain habitat conditions that support the
green floater. In West Virginia, overlapping public lands include
State-owned forests (e.g., Calvin Price and Seneca State Forests),
parks (e.g., Cass Scenic Railroad and Watoga State Parks), and wildlife
management areas (e.g., Rimel, Little River, and Neola Wildlife
Management Areas). In Virginia, overlapping public lands include the
New River Trail State Park. Each of these land types ensures some
protection from development and land-disturbing activities.
Subunit 4a consists of a 259.7-km (161.4-mi) segment of the
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Cove Run and
ends at the confluence of the Greenbrier River and the New River. The
land adjacent to the Greenbrier River in this subunit is owned by the
Federal (30 percent) and State (69 percent) governments and private
entities (1 percent).
Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer Creek in
Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Hospital Run and ends at the confluence of Deer Creek and the
Greenbrier River. The land adjacent to Deer Creek in this subunit is
[[Page 48320]]
owned by the Federal (34 percent) and State (66 percent) governments.
Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek in
Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the confluence
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek
and the Greenbrier River. The land adjacent to Knapp Creek in this
subunit is owned by the Federal (31 percent), State (62 percent), and
local (1 percent) governments and private entities (6 percent).
Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New River
in Carroll and Grayson Counties, Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at Sarasota
Lane and ends at the confluence of Chestnut Creek and the New River.
The land adjacent to the New River in this subunit is owned by the
State of Virginia (42 percent) and private entities (58 percent).
Subunit 4e consists of a 17.9-km (11.1-mi) segment of the Little
River in the Kanawha watershed in Alleghany County, North Carolina, and
Grayson County, Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Brush Creek
and ends at the confluence of the Little River and the New River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 4f consists of a 145.7-km (90.5-mi) segment of the South
Fork New River in Alleghany, Ashe, and Watauga Counties, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the confluence of the East Fork South
Fork New River, Middle Fork South Fork New River, and Winkler Creek and
ends at the confluence of the South Fork New River and North Fork New
River. Riparian lands that border the subunit are all (100 percent)
privately owned.
Unit 5: Lower Chesapeake Watershed
Unit 5 consists of two subunits of the Lower Chesapeake watershed
in Virginia (Amherst, Buckingham, and Nelson Counties). Each of the
subunits in this unit contain one or more of the physical or biological
features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 5 to address excess nutrients, sediment, and pollutants
that enter the river. Sources of these types of pollution are
wastewater, agricultural runoff, and urban stormwater runoff that come
from Lynchburg, Virginia, and numerous small towns adjacent to rivers
and streams that have the potential to influence the water quality and
quantity in the unit.
Unit 5 overlaps with public lands for which protections and
management will help to maintain habitat conditions that support the
green floater. The George Washington and Jefferson National Forest, a
federally owned property managed by the U.S. Forest Service, overlaps
with Subunit 5a.
Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye River
in Amherst, Buckingham, and Nelson Counties, Virginia. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of Coxs Creek and Campbell Creek and ends at
the confluence of the Tye River and the James River. The land adjacent
to the Tye River in this subunit is primarily private (99 percent),
although some land along the river is owned by the Federal government
(1 percent).
Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar
River in Amherst County, Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Horsley Creek and ends at the confluence of the Pedlar River and
James River. Riparian lands that border the subunit are all (100
percent) privately owned.
Unit 6: Chowan-Roanoke Watershed
Unit 6 consists of five subunits in the Chowan-Roanoke watershed of
North Carolina (Caswell, Rockingham, and Stokes Counties) and Virginia
(Brunswick, Greensville, Halifax, Henry, Patrick, Pittsylvania, and
Southampton Counties). Each of the subunits in this unit contain one or
more of the physical or biological features essential to the species'
conservation.
Special management considerations or protection may be required
within Unit 6 to address excess nutrients, sediment, and pollutants
that enter the river, as well as land-disturbing activities. Sources of
these types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff from the nearby towns Eden, North Carolina; Danville,
Virginia; and numerous small towns adjacent to rivers and streams that
have the potential to influence the water quality and quantity in the
unit. Land-disturbing activities to maintain locks and dams have the
potential to impact water quality and quantity in this unit as well.
The subunits of Unit 6 overlap with public lands for which
protections and management will likely enable habitat conditions that
support the green floater to remain high into the future. State Parks
along the Mayo River exist in both Virginia and North Carolina. In
North Carolina, overlapping public lands include the Hanging Rock State
Park. This designation as a State Park ensures some protection from
development and land-disturbing activities.
Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and
Halifax, Henry, Patrick, and Pittsylvania Counties, Virginia. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of Squall Creek and ends at the entrance of
County Line Creek. The land adjacent to the Dan River in this subunit
is primarily private (98 percent), although some land along the river
is owned by nongovernmental organizations (1 percent) and State and
local governments (1 percent).
Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South Mayo
River in Henry County, Virginia, and Rockingham County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Crooked Creek and ends at the
confluence of the South Mayo River and the Mayo River. The land
adjacent to the South Mayo River in this subunit is owned by State
governments (39 percent) and private entities (61 percent).
Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North Mayo
River in Henry County, Virginia, and Rockingham County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Jumping Branch and ends at the
confluence of the North Mayo River and the Mayo River. The land
adjacent to the North Mayo River in this subunit is owned by State
governments (42 percent) and private entities (58 percent).
Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo
River in Rockingham County, North Carolina. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of the North Mayo and South Mayo Rivers and ends at the
confluence of the Mayo River and the Dan River. The land adjacent to
the Mayo River in this subunit is owned by the State of North Carolina
(63 percent) and private entities (37 percent).
Subunit 6e consists of a 106.1-km (65.9-mi) segment of the Meherrin
River in Brunswick, Greensville, and Southampton Counties, Virginia.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Shining Creek and ends at the
entrance of Fountains Creek.
[[Page 48321]]
Riparian lands that border the subunit are all (100 percent) privately
owned.
Unit 7: Neuse-Pamlico Watershed
Unit 7 consists of four subunits of the Neuse-Pamlico watershed in
North Carolina (Durham, Johnston, Orange, Person, and Wake Counties).
Each of the subunits in this unit contain one or more of the physical
or biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 7 to address excess nutrients, sediment, and pollutants
that enter the river, as well as urban development. Several major urban
areas are encompassed by Unit 7, including the Raleigh-Durham metro
area, in addition to numerous small towns adjacent to rivers and
streams that have the potential to influence the water quality and
quantity in the unit. Growth and development in the Raleigh-Durham area
are expected to continue and special management protections may be
required to address potential decreases of forest cover and increases
of impervious surfaces.
The subunits of Unit 7 overlap with numerous public lands for which
protections and management will likely help maintain habitat conditions
that support the green floater. Overlapping public lands include State-
owned properties such as the Falls Lake Recreation Area, Occoneechee
Mountain and Mitchell Mill Natural Areas, Eno River State Park, and Eno
River Diabase Sill Plant Conservation Preserve. Numerous county-owned
properties (e.g., Neuse River Greenway, Lake Michie Recreation Area,
Durham County Parks, and Wake County Parks) overlap in Unit 7 as well.
The Falls Lake Natural Area is part of a larger reservoir that is owned
and managed by a network of partners, including the State and local
governments and the U.S. Army Corps of Engineers. Each of these land
types ensure some protection from development and land-disturbing
activities.
Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse
River in Johnston and Wake Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Crabtree Creek and ends near Prestwick Drive.
The land adjacent to the Neuse River in this subunit is owned by local
governments (50 percent), the State of North Carolina (10 percent),
nongovernmental organizations (10 percent), and private entities (30
percent).
Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno River
in Durham and Orange Counties, North Carolina. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of McGowan Creek and ends at Falls Lake. The land adjacent to
the Eno River in this subunit is owned by Federal (3 percent), State
(40 percent), and local (18 percent) governments, nongovernmental
organizations (1 percent), and private entities (38 percent).
Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat
River in Durham and Person Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of the North Flat River and South Flat River
and ends at Falls Lake. The land adjacent to the Flat River in this
subunit is owned by Federal (8 percent), State (18 percent), and local
(31 percent) governments, and private entities (43 percent).
Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little
River in the Neuse-Pamlico watershed in Wake County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence with Perry Creek and ends at the
entrance of Big Branch. The land adjacent to the Little River in this
subunit is owned by State (17 percent) and local (69 percent)
governments, nongovernmental organizations (3 percent), and private
entities (11 percent).
Unit 8: Upper Tennessee Watershed
Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in the
Upper Tennessee Watershed in Watauga County, North Carolina, from the
entrance of Baird Creek to the entrance of Beech Creek. It includes the
river channel up to the ordinary high water mark. Riparian lands that
border the unit are all (100 percent) privately owned. This unit
contains one or more of the physical or biological features essential
to the species' conservation.
Special management considerations or protection may be required
within Unit 8 to address excess nutrients, sediment, and pollutants
that enter the river. Sources of these types of pollution are
wastewater, agricultural runoff, and urban stormwater runoff from
numerous small towns and farms adjacent to rivers and streams.
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 authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
[[Page 48322]]
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 set forth requirements for Federal
agencies to reinitiate consultation if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not
considered in the biological opinion or written concurrence; or (4) a
new species is listed or critical habitat designated that may be
affected by the identified action. The reinitiation requirement applies
only to actions that remain subject to some discretionary Federal
involvement or control. As provided in 50 CFR 402.16, the requirement
to reinitiate consultations for new species listings or critical
habitat designation does not apply to certain agency actions (e.g.,
land management plans issued by the Bureau of Land Management in
certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, water withdrawal, and
hydropower generation. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of the green floater
and its fish hosts by decreasing or altering flows to levels that would
adversely affect their ability to complete their life cycles.
(2) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals (including pesticides, pharmaceuticals, metals,
and salts), biological pollutants, or heated effluents into the surface
water or connected groundwater at a point source or by dispersed
release (non-point source). These activities could alter water
conditions to levels that are beyond the tolerances of the mussel or
its host fish and result in direct or cumulative adverse effects to
these individuals and their life cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road and
other construction projects, oil and gas exploration and extraction,
channel alteration, timber harvest, off-road vehicle use, and other
watershed and floodplain disturbances. When appropriate best management
practices are not followed, these activities could eliminate or reduce
the habitat necessary for the growth and reproduction of the green
floater and its host fish by increasing the sediment deposition to
levels that would adversely affect their ability to complete their life
cycles.
(4) Actions that would significantly increase the algal community
within the stream channel. Such activities could include, but are not
limited to, release of nutrients into the surface water or connected
groundwater at a point source or by dispersed release (non-point
source). These activities can result in excessive algal growth, which
degrades or reduces habitat for the green floater and its fish hosts,
by generating nutrients during their decay and decreasing dissolved
oxygen levels to levels below the tolerances of the mussel and/or its
fish hosts. Algae can also directly compete with mussel offspring by
covering the sediment, thereby preventing the glochidia from settling
into the sediment.
(5) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, impoundment, road and bridge construction, pipeline and
utility maintenance, oil and gas extraction, mining, dredging, and
destruction of riparian vegetation. These activities may lead to
changes in water flows and levels that would degrade or eliminate the
mussel or its fish hosts and/or their habitats. These actions can also
lead to increased sedimentation and degradation in water quality to
levels that are beyond the tolerances of the green floater or its fish
hosts.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on the green
floater. Possible actions could include, but are not limited to,
stocking of nonnative fishes, stocking of sport fish, or other related
actions. These activities can introduce parasites or disease for host
fish, and could result in direct predation, or affect the growth,
reproduction, and survival, of green floaters.
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 (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (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. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of
[[Page 48323]]
Section 4(b)(2) of the Endangered Species Act (hereafter, the ``2016
Policy''; 81 FR 7226, February 11, 2016), both of which were developed
jointly with the National Marine Fisheries Service (NMFS). We also
refer to a 2008 Department of the Interior Solicitor's opinion
entitled, ``The Secretary's Authority to Exclude Areas from a Critical
Habitat Designation under Section 4(b)(2) of the Endangered Species
Act'' (M-37016).
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 discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, 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. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria for when a
regulation is considered a ``significant regulatory action,'' and if
any one of these criteria are met, the regulation requires additional
analysis, review, and approval. The criterion relevant here is whether
the designation of critical habitat may have an economic effect of $200
million or more in any given year. Therefore, our consideration of
economic impacts uses a screening analysis to assess whether a
designation of critical habitat for the green floater is likely to have
an annual effect on the economy of $200 million or more.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the green floater (IEc 2022, entire). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas is also likely to jeopardize the
continued existence of the species. Therefore, designating occupied
areas as critical habitat typically causes little if any incremental
impacts above and beyond the impacts of listing the species. As a
result, we generally focus the screening analysis on areas of
unoccupied critical habitat (unoccupied units or unoccupied areas
within occupied units). Overall, the screening analysis assesses
whether designation of critical habitat is likely to result in any
additional management or conservation efforts that may incur
incremental economic impacts. This screening analysis combined with the
information contained in our IEM constitute what we consider to be our
draft economic analysis (DEA) of the proposed critical habitat
designation for the green floater; our DEA is summarized in the
narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the green floater, first we
identified, in the IEM dated June 7, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) culvert and bridge replacement; (2) pipeline
maintenance;
[[Page 48324]]
(3) bank stabilization; (4) stream crossing; (5) watershed restoration;
(6) road construction and maintenance; (7) pesticide use; (8)
streambank and shoreline protection; (9) channel bed stabilization; and
(10) riparian forest buffer. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. If we
list the species, in areas where the green floater is present, Federal
agencies would be required to consult with the Service under section 7
of the Act on activities they authorize, fund, or carry out that may
affect the species. If, when we list the species, we also finalize this
proposed critical habitat designation, Federal agencies would be
required to consider the effects of their actions on the designated
habitat, and if the Federal action may affect critical habitat, our
consultations would include an evaluation of measures to avoid the
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the green
floater's critical habitat. Because the designation of critical habitat
for green floater is being proposed concurrently with the listing, it
has been our experience that it is more difficult to discern which
conservation efforts are attributable to the species being listed and
those which will result solely from the designation of critical
habitat. However, the following specific circumstances in this case
help to inform our evaluation: (1) The essential physical or biological
features identified for critical habitat are the same features
essential for the life requisites of the species, and (2) any actions
that would likely adversely affect the essential physical or biological
features of occupied critical habitat are also likely to adversely
affect the green floater itself. The IEM outlines our rationale
concerning this limited distinction between baseline conservation
efforts and incremental impacts of the designation of critical habitat
for this species. This evaluation of the incremental effects has been
used as the basis to evaluate the probable incremental economic impacts
of this proposed designation of critical habitat.
The proposed critical habitat designation for the green floater
totals approximately 2,553 km (1,586 mi) of stream in eight units, all
of which are currently occupied by the species. Ownership of riparian
lands adjacent to the proposed units includes 2,007 km (1,247 mi; 79
percent) in private ownership and 546 km (339 mi; 21 percent) in public
(Federal, State, or local government) ownership.
The total incremental costs of critical habitat designation for the
green floater is anticipated to be less than $8.8 million per year. The
costs are reflective of the proposed critical habitat area, the
presence of the species (i.e., already occupied) in these areas, and
the presence of other federally listed species and designated critical
habitats. Since consultation is already required in some of these areas
as a result of the presence of three other aquatic listed species
(i.e., candy darter (Etheostoma osburni), Carolina madtom (Noturus
furiosus), and Neuse River waterdog (Necturus lewisi)) and their
critical habitats and would be required as a result of the listing of
the green floater, the economic costs of the critical habitat
designation would likely be primarily limited to additional
administrative efforts to consider adverse modification for the green
floater in section 7 consultations. In total, 4,198 section 7
consultation actions (approximately 58 formal consultations, 3,100
informal consultations, and 1,040 technical assistance efforts) are
anticipated to occur annually in proposed critical habitat areas.
Critical habitat may also trigger additional regulatory changes. For
example, the designation may cause other Federal, State, or local
permitting or regulatory agencies to expand or change standards or
requirements. Regulatory uncertainty generated by critical habitat may
also have impacts. For example, landowners or buyers may perceive that
the rule would restrict land or water use activities in some way and
therefore value the use of the land less than they would have absent
critical habitat. This is a perception, or stigma, effect of critical
habitat on markets.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2), our implementing regulations at 50 CFR 424.19, and the
2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that
[[Page 48325]]
could result from the designation. If we conduct an exclusion analysis
because the agency provides a reasonably specific justification or
because we decide to exercise the discretion to conduct an exclusion
analysis, we will defer to the expert judgment of DoD, DHS, or another
Federal agency as to: (1) Whether activities on its lands or waters, or
its activities on other lands or waters, have national-security or
homeland-security implications; (2) the importance of those
implications; and (3) the degree to which the cited implications would
be adversely affected in the absence of an exclusion. In that
circumstance, in conducting a discretionary section 4(b)(2) exclusion
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for green floater
are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
Consideration of 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 discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
Summary of Exclusions Considered Under 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for the green floater currently exist, and the
proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic or
national security impacts. Therefore, we anticipate no impact on Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation and thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources.
However, if through the public comment period we receive
information that we determine indicates that there are potential
economic, national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we
receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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 final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that
[[Page 48326]]
might trigger regulatory impacts under this designation as well as
types of project modifications that may result. In general, the term
``significant economic impact'' is meant to apply to a typical small
business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial 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. Facilities that provide energy supply, distribution,
or use (e.g., dams, pipelines) occur within some units of the proposed
critical habitat designation and may potentially be affected. We
determined that consultations, technical assistance, and requests for
species lists may be necessary in some instances. However, in our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use and will not have an annual effect on the economy of $200
million or more. Therefore, this action is not a significant energy
action, and no statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $200 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required. Therefore, a Small Government Agency Plan is not
required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the green floater in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that
[[Page 48327]]
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed for the proposed designation
of critical habitat for green floater, and it concludes that, if
adopted, this designation of critical habitat does not pose significant
takings implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. 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 proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for 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 State and local
governments in long-range planning because they 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) of the Act 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 E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on maps, and the proposed rule provides several options for
the interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
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 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretaries' Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat for the green floater, so
no Tribal lands would be affected by the proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the New York Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the New
York Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Floater, green'' in
alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
[[Page 48328]]
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Floater, green.................. Lasmigona Wherever found.... T [Federal Register
subviridis. citation when
published as a final
rule]; 50 CFR
17.45(h); \4d\ 50 CFR
17.95(f).CH
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.45 by adding a new paragraph (h) to read as follows:
Sec. 17.45 Special rules--snails and clams.
* * * * *
(h) Green floater (Lasmigona subviridis)--(1) Prohibitions. The
following prohibitions that apply to endangered wildlife also apply to
the green floater. Except as provided under paragraph (h)(2) of this
section and Sec. Sec. 17.4 and 17.5, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Stream bank restoration projects that use bioengineering
methods to replace preexisting, bare, eroding stream banks with
vegetated, stable stream banks, thereby reducing bank erosion and
instream sedimentation and improving habitat conditions for the
species. Following these bioengineering methods, stream banks must be
stabilized using native species appropriate for the region (e.g.,
native species live stakes (live, vegetative cuttings inserted or
tamped into the ground in a manner that allows the stake to take root
and grow), native species live fascines (live branch cuttings, usually
willows, bound together into long, cigar-shaped bundles), or native
species brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill)). These methods
must not include the sole use of quarried rock (riprap) or the use of
rock baskets (e.g., gabion baskets). Stream bank restoration projects
must also satisfy all Federal, State, and local permitting
requirements.
(B) Bridge or culvert replacement/removal projects that remove
migration barriers (e.g., collapsing, blocked, or perched culverts) or
generally allow for improved connectivity and upstream and downstream
movements of green floaters or their fish hosts while maintaining
normal stream flows, preventing bed and bank erosion, and improving
habitat conditions for the species (using aquatic organism passage
methods). Before starting stream crossing activities, surveys to
determine presence of green floaters must be performed by a qualified
and permitted biologist (defined as a biologist or aquatic resources
manager that has been approved by the Service to locate, identify, and
handle green floaters as allowed by Section 10(a)(1)(A) of the
Endangered Species Act). Before conducting instream activities in
places where green floaters may occur, surveys are required to
determine if they are present. Survey plans must be submitted to and
approved by the local Service field office before conducting surveys.
If green floaters are found, the biologist must coordinate with their
local Service field office regarding salvage and relocation of
individuals to suitable habitat before project implementation. Should
green floaters be relocated, monitoring must be conducted after project
implementation. Bridge or culvert replacement/removal projects must
also satisfy all Federal, State, and local permitting requirements.
0
4. In Sec. 17.95, amend paragraph (f) by adding an entry for ``Green
Floater (Lasmigona subviridis)'' immediately before the entry for
``Carolina Heelsplitter (Lasmigona decorata)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Green Floater (Lasmigona subviridis)
(1) Critical habitat units are depicted on the maps in this entry
for Allegany and Washington Counties, Maryland; Broome, Chemung,
Chenango, Cortland, Delaware, Herkimer, Livingston, Madison, Otsego,
Steuben, and Tioga Counties, New York; Allegany, Ashe, Caswell, Durham,
Johnston, Orange, Person, Rockingham, Stokes, Wake, and Watauga
Counties, North Carolina; Bedford, Bradford, Clinton, Columbia,
Dauphin, Fulton, Lackawanna, Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder, Susquehanna, Tioga, Union, and Wyoming
Counties, Pennsylvania; Amherst, Brunswick, Buckingham, Carroll,
Grayson, Greensville, Halifax, Henry, Nelson, Patrick, Pittsylvania,
and Southampton Counties, Virginia; and Berkeley, Greenbrier,
Hampshire, Hardy, Mineral, Monroe, Morgan, Pocahontas, and Summers
Counties, West Virginia.
(2) Within these areas, the physical or biological features
essential to the conservation of the green floater consist of the
following components:
(i) Flows adequate to maintain both benthic habitats and stream
connectivity, allow glochidia and juveniles to become established in
their habitats, allow the exchange of nutrients and oxygen to mussels,
and maintain food availability and spawning habitat for host fishes.
The characteristics of
[[Page 48329]]
such flows include a stable, not flashy, flow regime, with slow to
moderate currents to provide refugia during periods of higher flows.
(ii) Suitable sand and gravel substrates and connected instream
habitats characterized by stable stream channels and banks and by
minimal sedimentation and erosion.
(iii) Sufficient amount of food resources, including microscopic
particulate matter (plankton, bacteria, detritus, or dissolved organic
matter).
(iv) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including, but not limited to, those general to other
mussel species:
(A) Adequate dissolved oxygen;
(B) Low salinity;
(C) Low temperature (generally below 86 [deg]F (30 [deg]C));
(D) Low ammonia (generally below 0.5 parts per million total
ammonia-nitrogen), polycyclic aromatic hydrocarbons (PAHs),
polychlorinated biphenyls (PCBs), and heavy metal concentrations; and
(E) No excessive total suspended solids and other pollutants,
including contaminants of emerging concern.
(v) The presence and abundance of fish hosts necessary for
recruitment of the green floater (including, but not limited to,
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris),
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis)).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created by overlaying
Natural Heritage Element Occurrence data and U.S. Geological Survey
hydrologic data for stream reaches. The hydrologic data used in the
critical habitat maps were extracted from the U.S. Environmental
Protection Agency's National Hydrography Dataset Plus Version 2
(NHDPlusV2) 1:100k scale nationwide hydrologic layer (USEPA 2012,
unpaginated) with a projection of NAD83 Geographic. Natural Heritage
program and State mussel database species presence data from Maryland,
New York, North Carolina, Pennsylvania, Virginia, and West Virginia
were used to select specific river and stream segments for inclusion in
the critical habitat layer. The U.S. Major Rivers database is from
ArcGIS Online (last modified February 22, 2018) with a projection of
World Geodetic System (WGS) 1984 Web Mercator Auxiliary Sphere. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at https://fws.gov/office/new-york-ecological-services-field, at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012, and at the field
office responsible for this designation. 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) Index map follows:
Figure 1 to Green Floater (Lasmigona subviridis) paragraph (5)
BILLING CODE 4333-15-P
[[Page 48330]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.001
(6) Unit 1: Southwestern Lake Ontario Watershed (Livingston County,
New York).
(i) Unit 1 consists of 55.6 stream kilometers (km) (34.6 stream
miles (mi)) of the Genesee River in Livingston County, New York, from
New York Route 36 downstream to the river's confluence with White
Creek. It includes the river channel up to the ordinary high water
mark.
(ii) Map of Unit 1 follows:
[[Page 48331]]
Figure 2 to Green Floater (Lasmigona subviridis) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.002
(7) Unit 2: Susquehanna Watershed (Broome, Chemung, Chenango,
Cortland, Delaware, Herkimer, Madison, Otsego, Steuben, and Tioga
Counties, New York; and Bradford, Clinton, Columbia, Dauphin,
Lackawanna, Luzerne, Lycoming, Montour, Northumberland, Perry, Snyder,
Susquehanna, Tioga, Union, and Wyoming Counties, Pennsylvania).
(i) Unit 2 consists of the following 16 subunits:
(A) Subunit 2a is a total length of 345.8 km (214.9 mi) of the
Susquehanna River in Tioga County, New York, and Columbia, Montour, and
Northumberland Counties, Pennsylvania. This subunit includes the
[[Page 48332]]
river channel up to the ordinary high water mark. The upper section of
Subunit 2a flows from the entrance of Owego Creek to Harvey's Creek.
The lower section starts at Nescopeck Creek and flows to the confluence
of Fishing Creek.
(B) Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile
Creek in Steuben County, New York. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of an unnamed tributary and ends at the confluence of Fivemile Creek
and the Cohocton River.
(C) Subunit 2c consists of a 47.6-km (29.6-mi) segment of the
Cohocton River in Steuben County, New York. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of Cotton Creek and Tenmile Creek and ends at the confluence
of the Tioga River and Middle Cohocton Creek.
(D) Subunit 2d consists of a 15.7-km (9.7-mi) segment of the
Canisteo and Tioga Rivers in Steuben County, New York. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of Tuscarora Creek at the Canisteo River and
ends at the confluence of the Tioga River and Chemung River.
(E) Subunit 2e consists of a 73.0-km (45.4-mi) segment of the
Chemung River in Steuben and Chemung Counties, New York, and Bradford
County, Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the confluence of the Tioga
River with the Cohocton River and ends at the confluence of the Chemung
River and the Susquehanna River.
(F) Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk
Creek in Tioga County, New York, and Bradford County, Pennsylvania.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence of Miller Creek and Michigan Creek
and ends at the confluence of Fishing Creek with West Branch Owego
Creek.
(G) Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Billings Mill
Brook and ends at the confluence of Tunkhannock Creek and the
Susquehanna River.
(H) Subunit 2h consists of a 59.4-km (36.9-mi) segment of the
Tioughnioga River in Broome and Cortland Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga
River and the Chenango River.
(I) Subunit 2i consists of a 140.9-km (87.6-mi) segment of the
Chenango River in Broome, Chenango, and Madison Counties, New York.
This subunit includes the river channel up to the ordinary high water
mark. It starts in the Sangerfield River downstream of Ninemile Swamp
and ends at the confluence of the Chenango River and the Susquehanna
River.
(J) Subunit 2j consists of a 93.7-km (58.2-mi) segment of the
Unadilla River in Chenango, Herkimer, and Otsego Counties, New York.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of North Winfield Creek and ends at the
confluence of the Unadilla River and the Susquehanna River.
(K) Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties,
New York, and Susquehanna County, Pennsylvania. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the entrance of Starrucca Creek.
(L) Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine
Creek in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of Phoenix Run and ends at the confluence of
Pine Creek and the Susquehanna River.
(M) Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek
in Tioga County, New York. This subunit includes the river channel up
to the ordinary high water mark. It starts at the entrance of Asaph Run
and ends at the confluence of Marsh Creek and Pine Creek.
(N) Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West
Branch Susquehanna River in Lycoming, Northumberland, and Union
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Muncy Creek
and ends at the confluence of the West Branch Susquehanna River and the
Susquehanna River.
(O) Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo
Creek in Union County, Pennsylvania. This subunit includes the river
channel up to the ordinary high water mark. It starts at the
intersection of Johnson Mill Road and Buffalo Creek and ends at the
confluence of Buffalo Creek and the West Branch Susquehanna River. The
last segment of Buffalo Creek is also known as Mill Race.
(P) Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns
Creek in Dauphin, Northumberland, Perry, Snyder, and Union Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of an unnamed
tributary near the intersection of Penns Creek Road and Wildwood Road
and ends at the confluence of Penns Creek and the Susquehanna River.
(ii) Maps of Unit 2 follow:
[[Page 48333]]
Figure 3 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.003
[[Page 48334]]
Figure 4 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.004
[[Page 48335]]
Figure 5 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.005
[[Page 48336]]
Figure 6 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.006
[[Page 48337]]
Figure 7 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.007
[[Page 48338]]
Figure 8 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.008
(8) Unit 3: Potomac Watershed (Bedford and Fulton Counties,
Pennsylvania; Allegany and Washington Counties, Maryland; and Berkeley,
Hampshire, Hardy, Mineral, and Morgan Counties, West Virginia).
(i) Unit 3 consists of the following six subunits:
(A) Subunit 3a consists of an 80.3-km (49.9-mi) segment of the
Potomac River in Washington County, Maryland, and Berkeley County, West
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of the Cacapon River and
ends at the entrance of Downey Branch.
(B) Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson
Creek in
[[Page 48339]]
Mineral County, West Virginia. This subunit includes the river channel
up to the ordinary high water mark. It starts at the entrance of Cabin
Run and ends at the confluence of Patterson Creek and the Potomac
River.
(C) Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling
Hill Creek in Allegany County, Maryland, and Bedford and Fulton
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the Rice Road crossing of
West Branch Sideling Hill Creek and ends at the confluence of Sideling
Hill Creek and the Potomac River.
(D) Subunit 3d consists of a 123.0-km (76.5-mi) segment of the
Cacapon River in Washington County, Maryland, and in Hardy, Hampshire,
and Morgan Counties, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Trout Run and ends at the confluence of the Cacapon River and the
Potomac River.
(E) Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking
Creek in Washington County, Maryland. This subunit includes the river
channel up to the ordinary high water mark. It starts at the crossing
of Pecktonville Road and ends at the confluence of Licking Creek and
the Potomac River.
(F) Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back
Creek in Berkeley County, West Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
entrance of Big Run and ends at the confluence of Back Creek and the
Potomac River.
(ii) Map of Unit 3 follows:
[[Page 48340]]
Figure 9 to Green Floater (Lasmigona subviridis) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.009
(9) Unit 4: Kanawha Watershed (Allegany, Ashe, and Watauga
Counties, North Carolina; Carroll and Grayson Counties, Virginia; and
Greenbrier, Monroe, Pocahontas, and Summers Counties, West Virginia).
(i) Unit 4 consists of the following six subunits:
(A) Subunit 4a consists of a 259.7-km (161.4-mi) segment of the
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Cove Run and
ends at the confluence of the Greenbrier River and the New River.
[[Page 48341]]
(B) Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer
Creek in Pocahontas County, West Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
entrance of Hospital Run and ends at the confluence of Deer Creek and
the Greenbrier River.
(C) Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek
in Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek
and the Greenbrier River.
(D) Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New
River in Carroll and Grayson Counties, Virginia. This subunit includes
the river channel up to the ordinary high water mark. It starts at
Sarasota Lane and ends at the confluence of Chestnut Creek and the New
River.
(E) Subunit 4e consists of a 17.9-km (11.1-mi) segment of the
Little River in the Kanawha watershed in Alleghany County, North
Carolina, and Grayson County, Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Brush Creek and ends at the confluence of the Little River and the
New River.
(F) Subunit 4f consists of a 145.7-km (90.5-mi) segment of the
South Fork New River in Alleghany, Ashe, and Watauga Counties, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the confluence of the East Fork South
Fork New River, Middle Fork South Fork New River, and Winkler Creek and
ends at the confluence of the South Fork New River and North Fork New
River.
(ii) Maps of Unit 4 follow:
[[Page 48342]]
Figure 10 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.010
[[Page 48343]]
Figure 11 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.011
(10) Unit 5: Lower Chesapeake Watershed (Amherst, Buckingham, and
Nelson Counties, Virginia).
(i) Unit 5 consists of the following two subunits:
(A) Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye
River in Amherst, Buckingham, and Nelson Counties, Virginia. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of Coxs Creek and Campbell Creek and ends
at the confluence of the Tye River and the James River.
(B) Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar
River in Amherst County, Virginia. This subunit
[[Page 48344]]
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Horsley Creek and ends at the confluence of
the Pedlar River and James River.
(ii) Map of Unit 5 follows:
Figure 12 to Green Floater (Lasmigona subviridis) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.012
(11) Unit 6: Chowan-Roanoke Watershed (Caswell, Rockingham, and
Stokes Counties, North Carolina; and Brunswick, Greensville, Halifax,
Henry, Patrick, Pittsylvania, and Southampton Counties, Virginia).
(i) Unit 6 consists of the following five subunits:
(A) Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and
in Halifax, Henry, Patrick, and Pittsylvania
[[Page 48345]]
Counties, Virginia. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Squall Creek and
ends at the entrance of County Line Creek.
(B) Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South
Mayo River in Henry County, Virginia, and Rockingham County, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Crooked Creek and ends at
the confluence of the South Mayo River and the Mayo River.
(C) Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North
Mayo River in Henry County, Virginia, and Rockingham County, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Jumping Branch and ends
at the confluence of the North Mayo River and the Mayo River.
(D) Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo
River in Rockingham County, North Carolina. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of the North Mayo and South Mayo Rivers and ends at the
confluence of the Mayo River and the Dan River.
(E) Subunit 6e consists of a 106.1-km (65.9-mi) segment of the
Meherrin River in Brunswick, Greensville, and Southampton Counties,
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Shining Creek and ends at
the entrance of Fountains Creek.
(ii) Maps of Unit 6 follow:
Figure 13 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)
[[Page 48346]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.013
Figure 14 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)
[[Page 48347]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.014
(12) Unit 7: Neuse-Pamlico Watershed (Durham, Johnston, Orange,
Person, and Wake Counties, North Carolina).
(i) Unit 7 consists of the following four subunits:
(A) Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse
River in Johnston and Wake Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Crabtree Creek and ends near Prestwick Drive.
(B) Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno
River in Durham and Orange Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of McGowan Creek and ends at Falls Lake.
(C) Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat
River in Durham and Person Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of the North Flat River and South Flat River
and ends at Falls Lake.
(D) Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little
River in
[[Page 48348]]
the Neuse-Pamlico watershed in Wake County, North Carolina. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence with Perry Creek and ends at the entrance
of Big Branch.
(ii) Map of Unit 7 follows:
Figure 15 to Green Floater (Lasmigona subviridis) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.015
(13) Unit 8: Upper Tennessee Watershed (Watauga County, North
Carolina).
(i) Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in
Watauga County, North Carolina, from the entrance of Baird Creek to the
entrance of Beech Creek. It includes the river channel up to the
ordinary high water mark.
(ii) Map of Unit 8 follows:
Figure 16 to Green Floater (Lasmigona subviridis) paragraph (13)(ii)
[[Page 48349]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.016
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-15143 Filed 7-25-23; 8:45 am]
BILLING CODE 4333-15-C