Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1647

References Cited Liogier, H.A. and L.F. Martorell. 1982. Flora recordkeeping requirements, and Breckon, G.J. and D.A. Kolterman. 1993. of Puerto Rico and adjacent islands: a Transportation. Cordia bellonis Urban [Boraginaceae]. systematic synopsis. Editorial de la ´ Regulation Promulgation Final report under cooperative Universidad de Puerto Rico, Rıo Piedras, agreement No. 14–16–0004–92–970 Puerto Rico. 342 pp. Proctor, G. 1991. Puerto Rican plant species Accordingly, part 17, subchapter B of between U.S. Fish and Wildlife Service of concern: Status and recommendations. and the University of Puerto Rico, chapter I, title 50 of the Code of Federal Miscellaneous Scientific Publication No. Mayaguez Campus. 14 pp. Regulations, is amended as set forth 2. Department of Natural and Breckon, G.J. and D.A. Kolterman. 1994. below: Environmental Resources, San Juan, Cordia bellonis Urban [Boraginaceae]. Puerto Rico. Pp. 59–61. PART 17Ð[AMENDED] Final report under cooperative Puerto Rico Highway and Transportation agreement No. 14–16–0004–93–973 Authority. 1995. Report to U.S. Fish and between U.S. Fish and Wildlife Service 1. The authority citation for part 17 Wildlife Service on plant species, Puerto continues to read as follows: and the University of Puerto Rico, Rican boa and monitoring program of the Mayaguez Campus. 4 pp. broad-winged hawk PR–10 Highway, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Britton, N.L. and P. Wilson. 1925. Scientific Arecibo-Utuado. Unpublished report. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– survey of Porto Rico and the Virgin Urban. 1899. Symb. Antill. 1:393. 625, 100 Stat. 3500; unless otherwise noted. Islands. Volume VI–Part 1. Botany of Porto Rico and the Virgin Islands. Author 2. Section 17.12(h) is amended by Descriptive flora-Spermatohyta The primary author of this final rule is Ms. adding the following, in alphabetical (continued). New York Academy of Marelisa Rivera, Boquero´n Field Office, U.S. Sciences, New York. 158 pp. order under FLOWERING PLANTS, to Fish and Wildlife Service, P.O. Box 491, the List of Endangered and Threatened Federal Highway Administration and the Boquero´n, Puerto Rico 00622 (809/851– Puerto Rico Highway and Transportation 7297). Plants to read as follows: Authority. 1994. Biological Assessment § 17.12 Endangered and threatened plants. Relocation of PR–10 Utuado, Puerto List of Subjects in 50 CFR Part 17 Rico. Unpublished Report. Endangered and threatened species, * * * * * Exports, Imports, Reporting and (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

FLOWERING PLANTS

******* Cordia bellonis ...... None ...... U.S.A. (PR) ...... Boraginaceae ...... E 601 NA NA

*******

Dated: December 6, 1996. (Epioblasma capsaeformis), ranges, they are vulnerable to toxic John G. Rogers, Cumberlandian combshell (Epioblasma chemical spills. Acting Director, Fish and Wildlife Service. brevidens), purple bean (Villosa DATES: Effective February 10, 1997. [FR Doc. 97–564 Filed 1–9–97; 8:45 am] perpurpurea), and rough rabbitsfoot ADDRESSES: The complete BILLING CODE 4310±55±P (Quadrula cylindrica strigillata)—under administrative file for this rule is the Endangered Species Act of 1973, as available for inspection, by amended (Act). All five species have appointment, during normal business DEPARTMENT OF THE INTERIOR undergone significant reductions in hours at the U.S. Fish and Wildlife range and numbers. They now exist as Service, Asheville Field Office, 160 Fish and Wildlife Service relatively small, isolated populations. Zillicoa Street, Asheville, North The Cumberland elktoe exists in very Carolina 28801. 50 CFR Part 17 localized portions of the Cumberland FOR FURTHER INFORMATION CONTACT: Mr. RIN 1018±AC64 River system in Kentucky and Richard G. Biggins at the above address, Tennessee. The oyster mussel and or telephone 704/258–3939, Ext. 228. Endangered and Threatened Wildlife Cumberlandian combshell persist at SUPPLEMENTARY INFORMATION: and Plants; Determination of extremely low numbers in portions of Endangered Status for the Cumberland the Cumberland and Tennessee river Background Elktoe, Oyster Mussel, Cumberlandian basins in Kentucky, Tennessee, and Cumberland elktoe (Alasmidonta Combshell, Purple Bean, and Rough Virginia. The purple bean and rough atropurpurea) Rabbitsfoot rabbitsfoot currently survive in a few The Cumberland elktoe, described by AGENCY: Fish and Wildlife Service, river reaches in the upper Tennessee Rafinesque (1831), has a thin but not Interior. River system in Tennessee and Virginia. fragile shell. The shell’s surface is These species were eliminated from ACTION: Final rule. smooth, somewhat shiny, and covered much of their historic range by with greenish rays. Young specimens SUMMARY: The Fish and Wildlife Service impoundments. Presently, these species have a yellowish brown shell, and the (Service) determines endangered status and their habitats are being impacted by shells of adults are generally black. The for five freshwater mussels— deteriorated water quality, primarily inside of the shell is shiny with a white, Cumberland elktoe (Alasmidonta resulting from poor land-use practices. bluish white, or sometimes peach or atropurpurea), oyster mussel Because the species have such restricted salmon color (see Clarke (1981) for a 1648 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations more complete description of the Oyster mussel (Epioblasma naturally occurring events such as toxic species). capsaeformis) chemical spills. The Cumberland elktoe is endemic to the Cumberland River system in The oyster mussel (Lea 1834) has a Cumberlandian combshell (Epioblasma Tennessee and Kentucky and is dull to sub-shiny yellowish- to green- brevidens) considered endangered in the State of colored shell with numerous narrow The Cumberlandian combshell (Lea Kentucky (Kentucky State Nature dark green rays. The shells of females 1831) has a thick, solid shell with a Preserves Commission (KSNPC) 1991). are slightly inflated and quite thin smooth to cloth-like outer surface. It is Historic records exist from the towards the shell’s posterior margin. Cumberland River and from its The inside of the shell is whitish to yellow to tawny brown in color with tributaries entering from the south bluish white in color (see Johnson narrow green broken rays. The inside of between the Big South Fork Cumberland (1978) for a more complete description the shell is white. The shells of females River upstream to Cumberland Falls. of the species). The species is are inflated with serrated teeth-like Specimens have also been taken from considered endangered in the States of structures along a portion of the shell Marsh Creek above Cumberland Falls. Kentucky (KSNPC 1991) and Virginia margin (see Johnson (1978) for a more Old records of a related species, (Neves 1991; Sue Bruenderman, complete description of the species). Alasmidonta marginata, exist from Virginia Department of Game and The species is considered endangered in other creeks above Cumberland Falls; Inland Fisheries (VDGIF), in litt., 1992). the States of Kentucky (KSNPC 1991) and there is speculation that these This species historically occurred and Virginia (Neves 1991; specimens were probably the throughout much of the Cumberlandian Bruenderman, in litt., 1992) and a Cumberland elktoe (Gordon 1991). region of the Tennessee and species of special concern in Tennessee Because the area above the falls has Cumberland river drainages in Alabama, (Bogan and Parmalee 1983). been severely impacted by coal mining, Kentucky, Tennessee, and Virginia The Cumberlandian combshell any populations of A. atropurpurea that (Gordon 1991), and Ortmann (1918) historically existed throughout much of might have existed there were likely lost considered the species to be very the Cumberlandian portion of the (Gordon 1991). A record of one fresh abundant in the upper Tennessee River Tennessee and Cumberland river dead specimen exists from the Collins drainage. systems in Alabama, Kentucky, River, Grundy County, Tennessee. Currently, within the Cumberland Tennessee, and Virginia (Gordon 1991). However, extensive searches of the River, the oyster mussel survives as a Presently, it survives in the Cumberland collection site and other sites in the very rare component of the benthic River basin, as a very rare component of Collins River and adjacent rivers have community in Buck Creek, Pulaski the benthic community in Buck Creek, failed to find another specimen. If the County, Kentucky; and it still survives Pulaski County, Kentucky, and in a few species did exist in the Collins River, it in a few miles of the Big South Fork miles of the Big South Fork Cumberland has likely been extirpated. Cumberland River, McCreary County, Presently, three populations of the River, McCreary County, Kentucky, and Kentucky, and Scott County, Tennessee Cumberland elktoe are known to persist. Scott County, Tennessee (Bakaletz 1991; (Bakaletz 1991; McCance, in litt., 1994). The species survives in the middle Gordon 1991; McCance, in litt., 1994). A Within the Tennessee River system, sections of Rock Creek, McCreary few old, non-reproducing individuals only small populations survive at a few County, Kentucky; the upper portions of may also survive in Old Hickory sites in the Powell River, Lee County, the Big South Fork Cumberland River Reservoir on the Cumberland River, Virginia; and Hancock and Claiborne basin in McCreary County, Kentucky; Smith County, Tennessee (Gordon counties, Tennessee; in the Clinch River and Scott, Fentress, and Morgan 1991). counties, Tennessee; and in Marsh system, Scott County, Virginia, and Hancock County, Tennessee; Copper Within the Tennessee River basin, the Creek, McCreary County, Kentucky species still survives in very low (Gordon 1991). Marsh Creek likely Creek (a Clinch River tributary), Scott County, Virginia; and Duck River, numbers in the Powell and Clinch contains the best surviving elktoe rivers, Lee and Scott counties, Virginia; population (Robert McCance, KSNPC, in Marshall County, Tennessee. Although not seen in recent years, the species may and Claiborne and Hancock counties, litt., 1994). Tennessee. The Clinch and Powell river Any Cumberland elktoe populations still persist at extremely low numbers in the lower Nolichucky river, Cocke and populations are very small and in that may have existed in the main stem decline (Neves 1991; Richard Neves, of the Cumberland River were likely lost Hamblem counties, Tennessee, and in the Little Pigeon River, Sevier County, Virginia Cooperative Fish and Wildlife when Wolf Creek Dam was completed. Research Unit, personal Other tributary populations were likely Tennessee (Gordon 1991). communication, 1991). lost due to the impacts of coal mining, Much of the oyster mussel’s historic pollution, and spills from oil wells. The range has been impounded by the Many of the Cumberlandian upper Big South Fork basin population Tennessee Valley Authority (TVA) and combshell’s historic populations were is threatened by coal mining runoff and the U.S. Army Corps of Engineers lost when impoundments were could also be threatened by (Corps). Other populations were lost constructed on the Tennessee and impoundments. The Marsh Creek due to various forms of pollution and Cumberland rivers by TVA and the population has been adversely affected siltation. The present populations are Corps. Other populations were lost due and is still threatened by potential spills threatened by the adverse impacts of to various forms of pollution and from oil wells. The Rock Creek coal mining, poor land-use practices, siltation. The present populations are population could be threatened by and pollution, primarily from nonpoint threatened by the adverse impacts of logging. All three populations, sources. The Duck River population coal mining, poor land-use practices, especially Rock Creek and Marsh Creek, could be lost if the proposed Columbia and pollution, primarily from nonpoint are restricted to such short stream Dam on the Duck River at Columbia, sources. All the known populations are reaches that they could be eliminated by Tennessee, is completed as presently small and could be decimated by naturally occurring events such as toxic proposed. All the known populations naturally occurring events such as toxic chemical spills. are small and could be decimated by chemical spills. Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1649

Purple bean (Villosa perpurpurea) rays, blotches, and chevron patterns. mussels and the slabside pearlymussel The purple bean mussel (Lea 1861) The inside of the shell is silvery to (Lexingtonia dolabelloides) was being has a small- to medium-sized shell. The white with an iridescence in the conducted. (The slabside pearlymussel shell’s outer surface is usually dark posterior area of the shell (see Bogan has not been included in this final rule. brown to black with numerous closely and Parmalee (1983) for a more Additional populations of this species spaced fine green rays. The inside of the complete species description). The were discovered and further evaluation shell is purple, but the purple may fade species is considered threatened in is needed before a decision can be made to white in dead specimens (see Bogan Virginia (Neves 1991; Bruenderman, in regarding the species’ need for Federal litt., 1992) and a species of special protection.) and Parmalee (1983) for a more concern in Tennessee (Bogan and Seven agencies responded to the complete description of the species). Parmalee 1983). August 25, 1992, notification. The U.S. The species is considered endangered in Historically, this mussel was Natural Resources Conservation Service Tennessee (Bogan and Parmalee 1983) restricted to the upper Tennessee River (formerly the U.S. Soil Conservation and Virginia (Neves 1991; and basin in the Clinch, Powell, and Holston Service) stated: ‘‘It is not anticipated Bruenderman, in litt., 1992). river systems (Gordon 1991). It still that any planned or current activities The purple bean historically occupied survives in all three of these systems, will adversely affect these species or the upper Tennessee River basin in but only in limited areas and at low their habitat.’’ The KSNPC, the Tennessee and Virginia upstream of the population levels. Populations persist in Kentucky Department of Environmental confluence of the Clinch River (Gordon the Powell River, Lee County, Virginia; Protection, Tennessee Wildlife 1991). Ortmann (1918) considered the and Claiborne and Hancock counties, Resources Agency (TWRA), Virginia species ‘‘not rare’’ in Virginia. Presently, Tennessee; Clinch River, Scott County, Department of Conservation and it survives in limited numbers at a few Virginia; and Hancock County, Recreation (VDCR), and VDGIF locations in the upper Clinch River Tennessee; Copper Creek (a Clinch provided information on the decline basin, Scott, Tazewell, and Russell River tributary), Scott County, Virginia; and status of the species in their States. counties, Virginia; Copper Creek (a and North Fork Holston River, The Duck River Agency (DRA) Clinch River tributary), Scott County, Washington County, Virginia (Gordon provided comments on the status of the Virginia; Indian Creek (a Clinch River 1991). oyster mussel in the Duck River. It tributary), Tazewell County, Virginia The rough rabbitsfoot populations in stated that, as the Duck River (the Indian Creek location information the lower Clinch, Powell, and Holston population of the oyster mussel is was received from the Service’s river systems were extirpated by extremely small, it is believed highly Abingdon Field Office, Abingdon, reservoirs. The decline of the species unlikely that the stream supports a Virginia, after the close of the comment throughout the rest of its range was viable population of E. capsaeformis. In period. However, the purple bean was likely due to the adverse impacts of coal contrast to DRA’s statement, Don Hubbs known to occur in the Clinch River, mining, poor land-use practices, and (TWRA, in litt., 1992) stated that fresh Tazewell County, Virginia, near the pollution, primarily from nonpoint dead oyster mussel individuals (from mouth of Indian Creek during the open sources. The population centers that young and older cohorts) were not comment period, and another federally remain are so limited that they are uncommon in muskrat middens on the listed mussel (tan riffleshell) was also vulnerable to extirpation from naturally Duck River in Marshall County, found in the same reach of Indian Creek. occurring events such as toxic chemical Tennessee. The Service, however, The Service has determined that, spills. currently has insufficient information to because this new information did not judge the species’ long-term viability Previous Federal Action substantially affect the listing decision, either in the Duck River or on a extending the public comment period In the Service’s notice of review for rangewide basis. was not warranted); Obed River, animal candidates, published in the The DRA took issue with the Service’s Cumberland and Morgan counties, Federal Register of November 21, 1991 statement in the notification that the Tennessee; Emory River just below its (56 FR 58804), the Cumberland elktoe, proposed Columbia Dam on the Duck confluence with the Obed River, Morgan oyster mussel, Cumberlandian River could eliminate the oyster mussel County, Tennessee; and Beech Creek, combshell, purple bean, and rough from the Duck River. It stated that Hawkins County, Tennessee (Gordon rabbitsfoot were included as Category 2 current project alternatives under 1991). species. At that time, a Category 2 consideration by the DRA and TVA The purple bean populations in the species was one that was being could result in a project that would lower Clinch, Powell, and Holston considered for possible addition to the flood less than one third of the area and rivers were extirpated by reservoirs. The Federal List of Endangered and would enhance the future viability of decline of the species throughout the Threatened Wildlife. Designation of the population segment above the pool. rest of its range was likely due to the Category 2 species was discontinued in The Service agrees that a smaller adverse impacts of coal mining, poor the February 28, 1996, Federal Register Columbia Dam pool would reduce the land-use practices, and pollution; notice (61 FR 7596). These mussels were amount of the oyster mussel population primarily from nonpoint sources. The approved for elevation to candidate lost to the direct effects of the dam. population centers that remain are so status by the Service on August 30, However, the details of these Columbia limited that they are very vulnerable to 1993. A candidate species is a species Dam alternatives have not been naturally occurring events such as toxic for which the Service has sufficient provided to the Service. chemical spills. information to propose it for protection The DRA commented that statements under the Act. On August 25, 1992, the in the mussel species accounts (Gordon Rough rabbitsfoot (Quadrula cylindrica Service notified by mail (129 letters), 1991) used as an information source to strigillata) potentially affected Federal and State prepare the August 25, 1992, The rough rabbitsfoot (Wright 1898) agencies and local governments within notification contained language that has an elongated heavy, rough textured, the species’ present range, and appeared to indicate that the Service yellow- to greenish-colored shell. The interested individuals that a status had already made a decision to list the shell’s surface is covered with green review of the above mentioned five species prior to receiving any comments 1650 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations from the notification. The Service agrees 1994; Columbia Herald, Columbia, Utility District, Jamestown, Tennessee; that the species accounts, which were Tennessee, on August 10, 1994; and and one individual. The remainder of prepared by a non-Service biologist Nashville Banner, Nashville, Tennessee, the respondents expressed concerns under contract to the Service, contain on August 17, 1994) and in letters dated over what impact these listings would language regarding the need to reverse July 26, 1994, the Service requested have on various activities. The the species’ decline as a means to Federal and State agencies, local following is a summary of the preserve and recover the mussels. governments, scientific organizations, comments, concerns, and questions However, these statements, made by a and interested parties to comment and (referred to as ‘‘Issues’’ for the purposes Service contractor, do not represent a submit factual reports and information of this summary) regarding the proposed predecisional statement by the Service. that might contribute to development of rule that were expressed in writing or Statements in the species accounts were a final determination for these five presented orally at the public hearings. considered along with all presently mussels, and provided notification that Comments of similar content have been available information on these species, a public hearing on the proposal could grouped together. as well as information obtained through be held, if requested. Issue 1: One respondent expressed In response to the above notifications, the notification and the proposed rule, concern that listing the purple bean the Service received several public when making the final decision could significantly impact efforts to regarding the status of the species. hearing requests from within the build a water supply reservoir on Clear The processing of this final rule following counties—Fentress, Creek, an Obed River tributary, in conforms with the Service’s final listing Cumberland, and Marshall counties, priority guidance published in the Tennessee; and McCreary County, Morgan County, Tennessee, and asked Federal Register on May 16, 1996 (61 Kentucky. The Service held two public specific questions regarding how this FR 24722). The guidance clarifies the hearings (December 13, 1994, at the reservoir project would impact the order in which the Service will process York Institute, Jamestown, Tennessee; species. rulemakings following two related and December 15, 1994, at the Marshall Response: The purple bean is the only events—(1) the lifting, on April 26, County Courthouse, Lewisburg, one of these five species that occurs in 1996, of the moratorium on final listings Tennessee), and reopened the comment the Obed River system. However, based imposed on April 10, 1995 (Public Law period from November 23, 1994, to on available information, this species 104–6), and (2) the restoration of December 30, 1994. Notices of these does not exist at the proposed reservoir significant funding for listing through hearings and the reopening of the site or in the area downstream of the site the passage of the omnibus budget comment period were published in the that would be significantly affected by reconciliation law on April 26, 1996, Federal Register on November 18, 1994, the project. Therefore, because the following severe funding constraints (59 FR 59200) and in the following Service does not anticipate that the imposed by a number of continuing newspapers—Daily Herald, Columbia, project will have a significant impact on resolutions between November 1995 Tennessee, and Bristol Herald Courier, the purple bean, the listing will not and April 1996. The guidance calls for Bristol, Virginia, on November 20, 1994; significantly impact the reservoir giving highest priority to handling Knoxville News Sentinel, Knoxville, project. Specific questions on how a emergency situations (Tier 1) and Tennessee, and Commonwealth Journal, reservoir, which will likely have only second highest priority (Tier 2) to Somerset, Kentucky, on November 21, minimal, if any, impact to the species, resolving the listing status of the 1994; and Nashville Banner, Nashville, might negatively or possibly positively outstanding proposed listings. This final Tennessee, Daily News of Kingsport, affect the species cannot be fully rule falls under Tier 2. At this time, Kingsport, Tennessee, and Crossville evaluated until detailed project plans there are no pending Tier 1 actions. Chronicle, Crossville, Tennessee, on are available for review. These issues, In the development of this final rule, November 22, 1994. Additionally, the however, would be addressed in any the Service has conducted an internal Service, by letters dated November 21, biological opinion that may be review of a draft of this rule and other 1994, notified Federal and state developed for this proposed project. Service-generated information. Based on agencies, local governments, scientific Issue 2: Several respondents this review, the Service has determined organizations, and interested parties of expressed concern that listing these five that there is no new information that the public hearings and the reopening of mussels could have a significant impact would substantively affect this listing the comment period. on private landowners. decision and that additional public The Service received nineteen written comment is not warranted. comments and eight oral comments on Response: Currently, there are 24 the proposal to list the five mussels. federally listed mussels in the Summary of Comments and Numerous questions on the proposal Tennessee and Cumberland river Recommendations and related issues were asked at the systems. These species, many of which On July 14, 1994, a proposed rule was public hearings. Comments in support have been listed for over 10 years, have published in the Federal Register (59 of the proposed rule were received from not had a significant impact on private FR 35901) stating that the Cumberland the Environmental Protection Agency lands activities (e.g., logging, elktoe, oyster mussel, Cumberlandian (EPA); National Park Service, Big South agriculture, land development, and combshell, purple bean, and rough Fork National River and Recreation home construction). Therefore, based on rabbitsfoot were being considered for Area; KSNPC; Kentucky Department of this historic perspective, the Service endangered species status under the Fish and Wildlife Resources (KDFWR); does not anticipate that listing these Act. In the proposed rule, in legal Department of Fisheries and Wildlife additional species will have a notices (published in the Kingsport Sciences, Virginia Polytechnic Institute significant impact on private Daily News, Kingsport, Tennessee, on and State University; Tennessee landowners. In fact most individuals August 2, 1994; Crossville Chronicle, Department of Environment and that own or farm lands along streams Crossville, Tennessee, and Bristol Conservation (TDEC); VDCR; VDGIF; that are inhabited by listed aquatic Herald Courier, Bristol, Virginia, on and two private individuals. The listing species are unaware of the species’ August 3, 1994; Knoxville Journal, of one or more of these species was existence because their presence has Knoxville, Tennessee, on August 8, opposed by the DRA; Fentress County never affected their activities. Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1651

Issue 3: One respondent requested assessment of the Duck River’s oyster dredging and in-stream gravel mining information on the impact of this listing mussel population. projects. on mining activities. Response: It is a common practice of Response: In-stream dredging and Response: If a mining activity comes the Service, other Federal and state gravel mining involves work in under the jurisdiction of a state or agencies, and mussel researchers to navigable waters of the United States Federal agency and one of these five utilize information from muskrat and can result in the discharge of dredge mussels or any other listed species may middens. Mussels deposited in middens material back into the water. Thus, in- be in the project area, the project’s by muskrats can not provide a stream dredging and gravel mining impacts to the species must be quantitative assessment of mussel comes under the Corps’ permit authority considered. However, it has been the density, but observations of the numbers pursuant to section 10 of the RHA (33 Service’s experience, after dealing with of specimens in a midden can provide U.S.C. 403) and section 404 of the CWA hundreds of mining projects, that in insight into a species’ status in the (33 U.S.C. 1344). If a federally listed nearly all cases where there is a conflict adjacent river reach. species may be adversely impacted by between endangered species and a Issue 7: Requests were made that the this activity, the Corps must consult mining project, the project is permitted Service identify—(1) those activities with the Service to determine if the with only minor modifications. that will not be considered likely to project is likely to jeopardize the Issue 4: Several respondents result in a violation of section 9 of the species’ continued existence. expressed concern that the listing of the Act and (2) those activities that will be It is possible that a few in-stream Cumberland elktoe could adversely considered likely to result in violation dredging and gravel mining projects impact the completion of a proposed of section 9 of the Act. could be impacted due to the presence water supply reservoir on Crooked Response: This issue is addressed in of one of these species. However, it has Creek, a tributary of the Big South Fork the ‘‘Available Conservation Measures’’ been the experience of the Service that most of these projects can be designed of the Cumberland River, Fentress section of this rule. in such a way (i.e., removing the gravel County, Tennessee. Issue 8: One respondent wanted to only from above the water line) that the Response: The Service does not know what impact these listings would project objectives and the needs of the believe the listing of the Cumberland have on the placement of docks and species can be met. Additionally, as elktoe will stop completion of the piers into rivers inhabited by these some of these newly listed species exist proposed Crooked Creek Reservoir. The mussels. in areas that are already inhabited by Service is consulting with the Farm Response: There should be minimal listed mussels, the listing of these Services Agency on this project. A impact on dock and pier construction as species that coexist with currently listed segment of the Cumberland elktoe a result of this listing. The construction mussels will not add any additional population does exist at the site of the of piers and docks involves work in permit restrictions to these areas. proposed reservoir. However, this navigable waters of the United States Issue 10: Several respondents were population segment is small and likely and includes the discharge of dredge concerned with the potential impacts is not essential to the species’ survival material back into the waterway. Thus, these listings could have on water and recovery. Therefore, based on dock and pier construction comes under withdrawal projects. available information, the Service does the Corps’ permit authority pursuant to Response: As water withdrawal not anticipate that a jeopardy biological section 10 of the Rivers and Harbors Act projects often require construction of a opinion will result from this (RHA) (33 U.S.C. 403) and section 404 structure in the water, these projects consultation. The Service’s biological of the Clean Water Act (CWA) (33 U.S.C. typically require a permit from the opinion will outline measures to 1344). Thus, a permit must be received Corps under section 10 of the RHA (33 minimize incidental take of the elktoe from the Corps prior to the construction U.S.C. 403) and section 404 of the CWA and suggest conservation of a dock or pier. If a federally listed (33 U.S.C. 1344). If a federally listed recommendations, but the project will species may be adversely impacted by species may be adversely impacted by not be blocked by the Federal listing of this activity, the Corps must consult this activity, the Corps must consult the elktoe. with the Service to determine if the with the Service to determine if the Issue 5: Listing the Duck River project is likely to jeopardize the project is likely to jeopardize the population of the oyster mussel was species’ continued existence. species’ continued existence. It is questioned because it was felt that this It is possible that construction of a possible that a few water withdrawal population was not viable. few piers or docks could be delayed due projects that propose to extract a Response: The Duck River oyster to the presence of one of these species. significant portion of a river’s flow mussel population may be currently However, it is unlikely that any projects could be affected due to the presence of below the number of individuals would be stopped. Most piers and docks one of these species. However, if the necessary to maintain long-term are constructed in pool habitat, and water withdrawal project meets state viability. However, that does not these mussels primarily inhabit water quality standards, it has generally disqualify this population from relatively shallow riffles. Most piers and been the Service’s experience that protection under the Act. If the docks constructed on the rivers and endangered species will be protected population is below the threshold streams inhabited by these mussels without further significant restrictions. number needed for long-term viability, would be relatively small and have only Issue 11: Several respondents were the population could be augmented minimal impact on the mussels. concerned with the potential impacts with juveniles produced through Additionally, from an historical these listings could have on waste water artificial propagation or with adults perspective, the 24 mussel species that discharge projects. from another population. are already listed in the Tennessee and Response: The potential exists for Issue 6: In the proposed rule, the Cumberland river systems have had point discharges to impact these Service made reference to oyster little impact on the issuance of permits species, and there is an increasing mussels collected from a muskrat for these structures. demand for discharge permits in the midden. One respondent questioned the Issue 9: One respondent asked what Tennessee and Cumberland river Service’s use of this information in its impact these listings would have on systems. However, the States of 1652 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

Kentucky, Tennessee, and Virginia, with to jeopardize a species, the Service Response: The Service is not and has assistance from and oversight by the provides reasonable and prudent no plans to designate critical habitat for EPA, set water quality standards that are chemical application alternatives that these species (see the ‘‘Critical Habitat’’ presumably protective of aquatic life, would avoid the likelihood of jeopardy. section of this rule). including the 24 mussel species that are These recommendations generally Issue 17: Several respondents were already listed in the Tennessee and suggest some type of application concerned that these listings would Cumberland river systems. Thus, there restriction (i.e., prohibit pesticide affect current farming methods in the should be no significant increase in application within a prescribed distance watershed. regulatory burden regarding waste water from an inhabited stream reach) that Response: The Service will encourage discharge permits as a result of listing would protect the species. the use of buffer strips along water these five species in areas where these Although there may be some added courses, reduction of pesticide and species coexist with one or more of the restrictions to pesticide use as a result herbicide applications, and soil mussels that are currently listed. If new of these listings, the Service believes conservation practices that help control information indicates that current water that the resulting impacts to pesticide soil loss and siltation. quality criteria are insufficient to users should be minimal. Many of the Issue 18: One respondent questioned prevent the likelihood of jeopardy to stream reaches inhabited by these five the statement in the proposed rule that these freshwater mussels, new standards mussels are populated with previously implicated poor land-use practices as a may be needed. If revised standards are listed mussels that have already been threat to these mussels, and the implemented, some discharge permits assessed for pesticide restrictions; many individual was concerned that the could be further regulated if these pesticides reviewed for registration are farming community might have been the species are present. However, in areas not believed to be harmful to mussels primary target of this statement. where listed mussels already exist, the and no restrictions are applied to their Response: Siltation from soil erosion listing of these five mussels will not add use; and if a pesticide is found to be is not just or primarily an agricultural any significant additional burden. harmful to a species, there are often problem. Any activity that removes Issue 12: Several respondents were unrestricted, alternative chemicals that natural vegetated ground cover (e.g., concerned with the degree of impact can be used to control the same pest. logging, bridge and road construction, these listings might have on landowners Issue 14: One respondent wanted to mining, and land clearing for industrial who have erosion problems on their know if the information that these rules and residential construction) can cause land. are based on had been peer reviewed. significant stream siltation if adequate Response: Siltation can negatively Response: The information utilized in control measures are not taken. Silt can impact the aquatic environment. determining to propose these species have a devastating impact on aquatic However, based on a historical has been peer reviewed. On August 25, ecosystems, especially those species perspective, the Act has not impacted 1992, the Service mailed a summary of that evolved in a relatively silt free individual landowners with erosion the available status information on the environment. Mussels are filter feeders problems that might affect the 24 mussel five species to 47 agencies, and they can live in one location for species that are currently listed in the organizations, and individuals familiar most of their lives. High silt loads Tennessee and Cumberland river with the status of freshwater mussels disrupt their ability to feed and systems. Thus, the Service does not and solicited their comments on the reproduce, and at extreme silt levels, anticipate that the listing of these need to propose these species. Prior and they can be smothered under deep species will burden private landowners subsequent to the August 25, 1992, layers of silt. regarding this issue. notification, a copy of the status report As mentioned in response to Issue 12, The Service, through a proactive and used to make the determination to the Service, through its ‘‘Partners for coordinated effort with other agencies, propose these five species was sent to Wildlife’’ program, is working with conservation groups, and local biologists and agencies familiar with the willing landowners to assist in governmental bodies, is assisting willing plight of these species. With the restoration of stream side habit to private landowners in the restoration of exception of the DRA, none of the control siltation. The Service also riparian habitat to control siltation. This respondents questioned the need to encourages the use of ‘‘Best program (‘‘Partners for Wildlife’’) is propose these species for Federal Management Practices’’ to control currently funding projects on the Clinch protection. (See the last paragraph erosion and minimize the impacts of silt River (a Tennessee River tributary in under the ‘‘Summary of Comments and to aquatic resources. eastern Tennessee and southwestern Recommendations’’ section for further Issue 19: One respondent wanted to Virginia) and the Little Tennessee River information.) know how the listing of the oyster (a Tennessee River tributary in western Issue 15: One respondent was mussel would affect the completion of North Carolina). Both rivers have concerned that these listings could Columbia Dam. endangered fish and mussel fauna and restrict the farming communities’ use of Response: The Service stated in a this program has developed cooperative fords (stream crossings). 1979 Biological Opinion that agreements with willing landowners to Response: There are numerous active completion of a proposed reservoir improve stream side habitat for the fords in the Tennessee and Cumberland project (Columbia Dam) on the Duck benefit of all aquatic species. river systems used by the farming River in Maury and Marshall counties, Issue 13: One respondent wanted to community, and many of these fords are Tennessee, would likely jeopardize the know what impact these listings would in streams inhabited by federally continued existence of two federally have on the use of pesticides. protected mussels. The Act has not listed mussels. Although our Biological Response: The EPA, during its restricted the use of these fords, and the Opinion included reasonable and pesticide registration process, consults listing of these five mussels will not prudent alternatives that would have with the Service to determine if a alter this situation. allowed the project to go forward, TVA pesticide will likely jeopardize the Issue 16: One respondent wanted to has not implemented those measures continued existence of any federally know if the Service planned to and has been reevaluating the project listed species. If it is determined that designate critical habitat for these five and considered other alternatives to the application of the chemical is likely mussels. meet the project objectives. (A third Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1653 mussel listed prior to the issuance of the agency. However, the permitting agency improvements, numerous freshwater Biological Opinion is now known from usually requires the permit applicant to mussel populations in the southeastern the proposed flood pool.) Although the obtain the needed status information as United States are continuing to decline presence of a fourth endangered mussel part of the application process. even in areas that appear to have (oyster mussel) may somewhat Issue 23: One respondent commented suitable physical habitat. The Service complicate this issue, any measures that the Service should initiate a believes that it is likely that some needed to avoid a jeopardy situation for massive education effort with the farm insidious environmental factor(s), the currently listed mussels would not community to help build trust and possibly contaminants, may be be expected to change significantly with encourage community involvement adversely affecting the growth, the addition of a fourth listed species. regarding the protection and recovery of reproduction, or survival of these Issue 20: One respondent noted that aquatic species. populations. Of all the potential impacts since species go extinct because of Response: The Service agrees that to mussels, less is known about the natural causes why should these species local community support is essential to potential effects of contaminants on receive special protection. fully protect and recover listed species. these species. The Service believes that Response: It is true that natural and The Service has increased its efforts in EPA could, through the CWA, play a catastrophic events over geological time this area through ‘‘Partners for Wildlife’’ more active role in identifying potential have resulted in the extinction of and other programs that work with contaminant impacts to mussels. millions of species. However, the rate of community leaders and willing Issue 26: The EPA also requested that extinctions in the past couple of landowners to build the necessary the Service identify in any final rule centuries has accelerated dramatically partnerships. specific deficiencies and/or as a direct result of human activities. Issue 24: The VDCR stated that the inadequacies in the following areas The Act specifically states that species rough rabbitsfoot was listed as related to their implementation of the of fish, wildlife, and plant are of value threatened by the VDGIF. Thus, they felt CWA in the States of Tennessee and to this nation, and the Act requires the it might be more appropriate to list this Kentucky—state adopted narrative and Department of the Interior to maintain a species as threatened rather than numeric water quality criteria; state list of endangered and threatened endangered. water use classifications by streams species. The Service believes that these Response: The rough rabbitsfoot is occupied by the five mussels; aquatic five mussels meet the criteria for the listed as a threatened species by the life criteria guidance values; and Act’s protection (see the ‘‘Summary of VDGIF. However, this list was National Pollutant Discharge Factors Affecting the Species’’ section of developed in the late 1980’s and Elimination System (NPDES) permit these rules). published in 1991 (Neves 1991). Since procedures. Issue 21: One respondent suggested the publication of the state list, the Response: As mentioned in response that the Service should postpone the rough rabbitsfoot has declined to Issue 25, little is known about the decision to list the five species until significantly in the Clinch River and potential impacts of contaminants on Congress reauthorizes the Act. may no longer survive in Copper Creek freshwater mussels. Research is needed Response: The Act as currently (Neves, personal communication, 1995). to address the lethal and sublethal written requires the Department of the Neves (personal communication, 1995), effects of acute and chronic exposure of Interior to maintain a list of endangered was a primary consultant used by the toxins to all life stages of freshwater and threatened species and the Act VDGIF in determining state status for mussels. This research will entail provides five criteria to consider when the rough rabbitsfoot, and he plans to identifying appropriate surrogate determining to list a species (see the recommend State endangered status for species, devising test protocols, and ‘‘Summary of Factors Affecting the this species when the state list is conducting studies to evaluate the Species’’ section of these rules). Based revised. Additionally, he recommended protectiveness of these criteria. on the best available information, these Federal endangered status for this Additionally, the Service is currently five species meet these criteria and species in response to the proposed rule working with EPA to develop a qualify for the Act’s protection. The (Neves, in litt., 1994). Based on this memorandum of agreement (MOA) that Service believes that delaying these information and the information will address how EPA and the Service listings to await Congressional presented in the ‘‘Background’’ and the will interact relative to CWA water reauthorization would be a violation of ‘‘Summary of Factors Affecting the quality criteria, standards, and NPDES existing Federal law. Species’’ sections of these rules, the permits within the Service’s Southeast Issue 22: One respondent wanted to Service believes that endangered status Region. Until the MOA is developed know if a biological survey was required is appropriate for the rough rabbitsfoot. and data are available to fully evaluate when a Federal permit was needed in Issue 25: The EPA requested that the the effectiveness of current national areas inhabited by listed species and if Service clarify what it meant by the water quality criteria and standards and a survey was needed, who would following statement that appeared in the the need for site-specific criteria, the conduct the survey. July 14, 1994, proposed rule: Service believes it is premature to Response: Often the Service or other Existing authorities available to protect attempt, in this final rule, to address any agencies have sufficient status aquatic systems, such as the Clean Water Act, specific deficiencies and/or information on the species in a project administered by the Environmental inadequacies that may exist in EPA’s area, and no addtional site specific Protection Agency (EPA) and the Army Corps implementation of the CWA regarding surveys are needed to determine project of Engineers, have not been fully utilized and the protection of water quality. impacts to the species. However, if site- may have led to the degradation of aquatic The Service also solicited the expert specific species information is environments in the Southeast Region, thus opinions of ten appropriate and unavailable or insufficient, a survey of resulting in a decline of aquatic species. independent mussel specialists the project impact area may be needed Response: Through EPA’s regarding the pertinent scientific or to fully assess the project’s impacts. If implementation of the CWA, water commercial data and assumptions a survey is needed, it is generally not quality has been improved and mussel relating to taxonomy, population status, conducted by the Service. Survey populations have benefited. However, in and biological and ecological responsibility falls onto the permitting spite of general water quality information on these five mussels. One 1654 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations response from a specialist was received, fish fauna essential to a mussel’s fishermen have reported extensive and those comments were incorporated reproductive cycle. mussel die-offs in rivers and lakes into this final rule. Coal mining-related siltation and throughout the United States. The associated toxic runoff have adversely cause(s) of many of these die-offs is Summary of Factors Affecting the impacted many stream reaches. unknown, but disease has been Species Numerous streams have experienced suggested as a possible factor. Section 4(a)(1) of the Act (16 U.S.C. mussel and fish kills from toxic Shells of all five species are often 1531 et seq.) and regulations (50 CFR chemical spills, and poor land-use found in muskrat middens. The species Part 424) issued to implement the listing practices have fouled many waters with are also presumably consumed by other provisions of the Act set forth the silt. Runoff from large urban areas has mammals, such as raccoons and mink. procedures for adding species to the degraded water and substrate quality. While predation is not thought to be a Federal lists. A species may be Because of the extent of habitat significant threat to a healthy mussel determined to be an endangered or destruction, the overall aquatic faunal population, Neves and Odum (1989) threatened species due to one or more diversity in many of the basins’ rivers suggest it could limit the recovery of of the five factors described in Section has declined significantly. As a result of endangered mussel species or contribute 4(a)(1). These factors and their this destruction of riverine habitat, 8 to the local extirpation of already application to the Cumberland elktoe fishes and 24 mussels in the Tennessee depleted mussel populations. Predation (Alasmidonta atropurpurea), oyster and Cumberland river basins have would be of particular concern to oyster mussel (Epioblasma capsaeformis), already required the Act’s protection, mussel, Cumberlandian combshell, and Cumberlandian combshell (Epioblasma and numerous other aquatic species in purple bean, which exist only as brevidens), purple bean (Villosa these two basins are currently extremely small, remnant populations. perpurpurea), and rough rabbitsfoot considered species of concern and could D. The inadequacy of existing (Quadrula cylindrica strigillata) are as warrant listing in the future. regulatory mechanisms. The States of follows: The mussel fauna in the Tennessee Kentucky, Alabama, Tennessee, and A. The present or threatened and Cumberland rivers has been Virginia prohibit the taking of fish and destruction, modification, or extensively sampled, and much is wildlife, including freshwater mussels, curtailment of its habitat or range. known about the historic and present for scientific purposes without a State Mussel populations throughout the distribution of this rich fauna. Gordon collecting permit. However, Central and Eastern United States have (1991) provided an extensive review of enforcement of this permit requirement been declining since modern the literature regarding the past and is difficult. Also, State regulations do civilization began to significantly alter present ranges of the Cumberland not generally protect these mussels from aquatic habitats. The Ohio River elktoe, oyster mussel, Cumberlandian other threats. drainage, which includes the Tennessee combshell, purple bean, and rough Existing authorities available to and Cumberland rivers, was a center for rabbitsfoot. Based on Gordon’s (1991) protect aquatic systems, such as the freshwater mussel evolution and review and personal communications CWA, administered by the EPA and the historically contained about 127 distinct with numerous Federal, State, and Corps, may not have been fully utilized. mussel species and subspecies. Of this independent biologists, it is clear that This may have contributed to the once rich mussel fauna, 11 mussels are these five mussel species have degradation of aquatic environments extinct, and 33 mussels (including the 5 undergone significant reductions in and the decline of aquatic species in the species covered in this final rule) are range and that they now exist as only Southeast (see response to Issue 25 in classified as Federal endangered remnant isolated populations. (See the ‘‘Summary of Comments and species. In less than 100 years, 35 ‘‘Background’’ section for a discussion Recommendations’’ of this final rule). percent of the Ohio River system’s of current and historic distribution and As these mussels (Cumberland elktoe, mussel fauna has either become extinct threats to the remaining populations.) Cumberlandian combshell, oyster or federally endangered. No other wide- B. Overutilization for commercial, mussel, purple bean, and rough ranging faunal group in the continental recreational, scientific, or educational rabbitsfoot) coexist with other federally United States has experienced this purposes. These five mussels are not listed species throughout most or all of degree of loss within the last 100 years. commercially valuable; but as they are their range, some of the habitats of these The mussel fauna in most streams of extremely rare, they could be sought by species are indirectly provided some the Ohio River basin has been directly collectors. The specific areas inhabited Federal protection from Federal actions impacted by impoundments, siltation, by these species are presently unknown and activities through section 7 of the channelization, and water pollution. to the general public. As a result, their Act. However, Federal listing will Reservoir construction is the most overutilization has not been a problem provide additional protection for all five obvious cause of the loss of mussel to date. Most stream reaches inhabited species throughout their range by diversity in the basin’s larger rivers. by these mussels are extremely small. requiring Federal permits to take the Most of the main stem of both the Thus, populations of the species could species and by requiring Federal Tennessee and Cumberland rivers and be easily eliminated or significantly agencies to consult with the Service many of their tributaries are reduced using readily available toxic when activities they fund, authorize, or impounded. For example, over 2,300 chemicals. Although scientific carry out may specifically adversely river miles or about 20 percent of the collecting is not presently identified as affect these species. Tennessee River and its tributaries with a threat, take by private and E. Other natural or manmade factors drainage areas of 25 square miles or institutional collectors could pose a affecting its continued existence. The greater are impounded (TVA 1971). In threat if left unregulated. Federal populations of these species addition to the loss of riverine habitat protection of these species will help to (Cumberland elktoe, oyster mussel, within impoundments, most minimize illegal and inappropriate take. Cumberlandian combshell, purple bean, impoundments also seriously alter C. Disease and predation. Disease and rough rabbitsfoot) are small and downstream aquatic habitat; and mussel occurrence in freshwater mussels is geographically isolated. This isolation populations upstream of reservoirs may virtually unknown. However, since prohibits the natural interchange of be adversely affected by changes in the 1982, biologists and commercial mussel genetic material between populations, Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1655 and the small population sizes reduce Critical Habitat species would be accomplished through the reservoir of genetic variability Section 4(a)(3) of the Act, as the section 7 jeopardy standard and within the populations. It is likely that amended, requires that, to the maximum section 9 prohibitions against take. some of the populations of the extent prudent and determinable, the In addition, these mussels are rare, Cumberland elktoe, oyster mussel, Secretary designate critical habitat at the and taking for scientific purposes and private collection could pose a threat if Cumberlandian combshell, purple bean, time the species is determined to be specific site information were released. and rough rabbitsfoot may be below the endangered or threatened. The Service’s The publication of critical habitat maps level required to maintain long-term regulations (50 CFR 424.12(a)(1)) state in the Federal Register and local genetic viability. Also, because most of that designation of critical habitat is not newspapers, and other publicity the extant populations of these mussels prudent when one or both of the accompanying critical habitat are restricted to short river reaches, they following situations exist: (1) The designation could increase the are very vulnerable to extirpation from species is threatened by taking or other collection threat and increase the activity and the identification of critical a single catastrophic event, such as a potential for vandalism, especially habitat can be expected to increase the toxic chemical spill or a major stream during the often controversial critical channel modification. Because the degree of threat to the species or (2) habitat designation process. The populations of each species are isolated such designation of critical habitat locations of populations of these species from one another because of would not be beneficial to the species. have consequently been described only impoundments, natural repopulation of The Service finds that designation of in general terms in this rule. Any any extirpated population is impossible critical habitat is not prudent for these existing precise locality data would be without human intervention. species. Such a determination would available to appropriate Federal, state, result in no known benefit to these and local governmental agencies from The invasion of the exotic zebra species, and designation of critical mussel (Dreissena polymorpha) into the the following offices—the Service office habitat could pose a further threat to described in the ADDRESSES section of Great Lakes poses a potential threat to them through publication of their site- the Ohio River’s mussel fauna. The these rules; the Service’s Cookeville specific localities. Field Office, 446 Neal Street, zebra mussel has recently been reported Section 7(a)(2) and regulations from the Tennessee and Cumberland Cookeville, Tennessee 38501; the codified at 50 CFR Part 402 require Service’s White Marsh Field Office, P.O. rivers, but the extent of its impact on the Federal agencies to ensure, in basin’s freshwater mussels is unknown. Box 480, Mid-County Center, U.S. Route consultation with and with the 17, White Marsh, Virginia 23183; the Zebra mussels in the Great Lakes have assistance of the Service, that activities Service’s Southeastern Virginia Field been found attached in large numbers to they authorize, fund, or carry out are not Office, P.O. Box 2345, 332 Cummings the shells of live and freshly dead native likely to jeopardize the continued Street, Abingdon, Virginia 24212; mussels, and zebra mussels have been existence of listed species or destroy or KDFWR; KSNPC; TWRA; TDEC; VDGIF; implicated in the loss of entire mussel adversely modify their critical habitat, if and VDCR. beds. designated. Section 7(a)(4) requires Available Conservation Measures The Service has carefully assessed the Federal agencies to confer informally best scientific and commercial with the Service on any action that is Conservation measures provided to information available regarding the past, likely to jeopardize the continued species listed as endangered or present, and future threats faced by existence of a proposed species or result threatened under the Act include these mussels in determining to make in the destruction or adverse recognition, recovery actions, this rule final. Based on these modification of proposed critical requirements for Federal protection, and evaluations, the preferred action is to habitat. (See ‘‘Available Conservation prohibitions against certain practices. Measures’’ section for a further list the Cumberland elktoe Recognition through listing encourages discussion of section 7.) As part of the (Alasmidonta atropurpurea), oyster and results in conservation actions by development of this final rule, Federal mussel (Epioblasma capsaeformis), Federal, state, and private agencies, and state agencies were notified of the groups, and individuals. The Act Cumberlandian combshell (Epioblasma mussels’ general distributions, and they provides for possible land acquisition brevidens), purple bean (Villosa were requested to provide data on and cooperation with the states and perpurpurea), and rough rabbitsfoot proposed Federal actions that might requires that recovery actions be carried (Quadrula cylindrica strigillata) as adversely affect the species. Should any out for all listed species. The protection endangered species. The Cumberland future projects be proposed in areas required of Federal agencies and the elktoe, purple bean, and rough inhabited by these mussels, the prohibitions against taking and harm are rabbitsfoot are known from three involved Federal agency will already discussed, in part, below. populations each, and the have the general distributional data Section 7(a) of the Act requires Cumberlandian combshell and oyster needed to determine if the species may Federal agencies to evaluate their mussel are known from five populations be impacted by its action; and if needed, actions with respect to any species that each. These five species and their more specific distributional information is proposed or listed as endangered or habitat have been and continue to be would be provided. threatened and with respect to its impacted by habitat destruction and Each of these mussels occupies very critical habitat, if any is being range reduction. Their limited restricted stream reaches. Thus, because designated. Regulations implementing distribution also makes them very any significant adverse modification or this interagency cooperation provision vulnerable to possible extinction from destruction of these species’ habitat of the Act are codified at 50 CFR Part toxic chemical spills. Because of their would likely jeopardize their continued 402. Section 7(a)(4) requires Federal restricted distributions and their existence, no additional protection for agencies to confer informally with the vulnerability to extinction, endangered the species would accrue from critical Service on any action that is likely to status appears to be the most habitat designation that would not also jeopardize the continued existence of a appropriate classification for these accrue from listing these species. proposed species or result in species. Therefore, habitat protection for these destruction or adverse modification of 1656 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations proposed critical habitat. If a species is Utility District for Clear Creek, an Obed illegal to possess, sell, deliver, carry, listed subsequently, section 7(a)(2) of River tributary, Morgan County, transport, or ship any such wildlife that the Act requires Federal agencies to Tennessee. The purple bean occurs in has been taken illegally. Certain ensure that activities they authorize, the Obed River system. However, based exceptions apply to agents of the fund, or carry out are not likely to on available information, this species Service and State conservation agencies. jeopardize the continued existence of does not exist at the proposed reservoir Permits may be issued to carry out such a species or to destroy or adversely site or in the area downstream of the site otherwise prohibited activities modify its critical habitat. If a Federal that would be significantly affected by involving endangered wildlife species action may affect a listed species or its the project. Therefore, as the Service under certain circumstances. critical habitat, the responsible Federal does not anticipate that the project will Regulations governing permits are at 50 agency must enter into formal have a significant impact on the purple CFR 17.22 and 17.23. Such permits are consultation with the Service. bean, the listing will not have any available for scientific purposes, to The Service notified Federal agencies significant impact on this reservoir enhance the propagation or survival of that may have programs which could project (see response to Issue 1 in the the species, and/or for incidental take in affect these species. One major Federal ‘‘Summary of Comments and connection with otherwise lawful project, a proposed TVA impoundment Recommendations’’ of this rule). activities. on the Duck River, Columbia, Since the close of the comment period It is the policy of the Service Tennessee, could have a significant on this rule, the Southeastern Virginia published in the Federal Register on impact on the oyster mussel. Field Office has become involved in an July 1, 1994,(59 FR 34272) to identify at Construction of Columbia Dam was informal section 7 consultation the time of listing, to the maximum suspended in the late 1970’s after the regarding a proposed Federal prison in extent practicable, those activities that Service issued a Biological Opinion Lee County, Virginia, and its potential would not constitute a violation of stating that the dam’s completion would impacts to eight federally listed mussels section 9 of the Act. The intent of this likely jeopardize the continued that live in the Powell River. The policy is to increase public awareness as existence of two federally listed Cumberlandian combshell, oyster to the effects of these listings on mussels. Although our Biological mussel, and purple bean are also known proposed and ongoing activities within Opinion included reasonable and from the Powell River and will now a species’ range. During the public prudent alternatives that would have need to be considered in this comment periods, comments were allowed the project to go forward, TVA consultation. However, since the eight received questioning the effect these has not implemented those measures listed mussels are already being listings would have on private and has been reevaluating the project considered with regard to this project, landowners (see response to Issue 2 and and considered other alternatives to the outcome of the consultation should 12 in the ‘‘Summary of Comments and meet the project objectives. (A third not be affected by the addition of these Recommendations’’ section of this rule), mussel listed prior to the issuance of the three more listed mussels. Based on this pesticide application (see response to Biological Opinion is now known from review, the Service has determined that Issue 13), use of existing river fords by the proposed flood pool.) Although the there is no information that would the farming community (see response to presence of a fourth endangered mussel substantively affect these listing Issue 15), and traditional farming (oyster mussel) may somewhat decisions and that additional public practices (see response to Issue 17). The complicate this issue, any measures comment is not warranted. Service believes, based on the best needed to avoid a jeopardy situation for No other specific proposed Federal available information as outlined in the the currently listed mussels would not actions were identified that would ‘‘Summary of Comments and be expected to change significantly with likely affect any of the species. Federal Recommendations’’ section of this rule, the addition of a fourth listed species activities that could occur and impact that the aforementioned actions will not (see response to Issue 19 in the the species include, but are not limited result in a violation of section 9 ‘‘Summary of Comments and to, the carrying out or the issuance of provided the activities are carried out in Recommendations’’ section of these permits for reservoir construction, accordance with any existing rules). stream alterations, waste water facility regulations and permit requirements. In A water supply reservoir is under development, water withdrawal addition, the Service also believes that consideration on Crooked Creek in the projects, pesticide registration, mining, certain other activities will not result in upper Big South Fork of the and road and bridge construction. a section 9 violation. They include use Cumberland River watershed, Fentress However, it has been the experience of of the river by boaters, anglers, and County, Tennessee. This project would the Service that nearly all section 7 other existing recreational uses. inundate and adversely impact a portion consultations have been resolved so that Activities that the Service believes of the Cumberland elktoe population the species have been protected and the could potentially result in ‘‘take’’ of that exists in the upper Big South Fork project objectives have been met. these mussels, include, but are not basin. This water supply project, The Act and implementing limited to, the unauthorized collection proposed by the Fentress County Utility regulations found at 50 CFR 17.21 set or capture of the species; unauthorized District, is one of a series of water forth a series of general prohibitions and destruction or alteration of the species’ supply alternatives currently under exceptions that apply to all endangered habitat (e.g., in-stream dredging, review for a permit pursuant to section wildlife. These prohibitions, in part, channelization, discharge of fill 404 of the CWA. However, the Service make it illegal for any person subject to material); violation of any discharge or does not believe the listing of the the jurisdiction of the United States to water withdrawal permit; and illegal Cumberland elktoe will stop completion take (includes harass, harm, pursue, discharge or dumping of toxic chemicals of the Crooked Creek Reservoir (see hunt, shoot, wound, kill, trap, or collect; or other pollutants into waters response to Issue 4 in the ‘‘Summary of or to attempt any of these), import or supporting the species. Comments and Recommendations’’ of export, ship in interstate commerce in Other activities not identified in the these rules). the course of commercial activity, or sell above two paragraphs will be reviewed Another water supply reservoir is or offer for sale in interstate or foreign on a case-by-case basis to determine if under consideration by the Catoosa commerce any listed species. It is also a violation of section 9 of the Act may Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1657 be likely to result from such activity. M.S. Thesis. Tennessee Technological Tennessee River Authority, Knoxville, The Service does not consider these lists University, Cookeville, Tennessee. 62 pp. Tennessee, 25 pp. Bogan, A. E., and P. W. Parmalee. 1983. to be exhaustive and provides them as Author information to the public. Tennessee’s rare wildlife, Volume II: the Questions regarding whether specific mollusks. 123 pp. Clarke, A. H. 1981. The Tribe Alasmidontini The primary author of this final rule activities will constitute a violation of (Unionidae: Anodontinae), Part I: Pegias, is Richard G. Biggins, U.S. Fish and section 9 should be directed to the Field Alasmidonta, and Arcidens. Smithsonian Wildlife Service, Asheville Field Office, Supervisor of the Service’s Asheville Contributions to Zoology, No. 326. 101 pp. 160 Zillicoa Street, Asheville, North Field Office (see ADDRESSES section). Gordon, M. E. 1991. Species accounts for Carolina 28801 (704/258–3939, Ext. Requests for copies of the regulations on Cumberland elktoe (Alasmidonta 228). listed species and inquiries regarding atropurpurea), Cumberlandian combshell prohibitions and permits should be (Epioblasma brevidens), oyster mussel List of Subjects in 50 CFR Part 17 (Epioblasma capsaeformis), rough addressed to the U.S. Fish and Wildlife Endangered and threatened species, Service, Ecological Services (TE), 1875 rabbitsfoot (Quadrula cylindrica strigillata), and purple bean (Villosa Exports, Imports, Reporting and Century Boulevard, Atlanta, Georgia perpurpurea). Unpublished reports to The recordkeeping requirements, and 30345–3301 (404/679–7096). Nature Conservancy. 75 pp. Transportation. National Environmental Policy Act Johnson, R. I. 1978. Systematics and zoogeography of Plagiola Regulation Promulgation The Service has determined that an (=Dysnomia=Epioblasma), an almost Environmental Assessment, as defined extinct genus of mussels (Bivalvia: Accordingly, part 17, subchapter B of under the authority of the National Unionides) from middle North America. chapter I, title 50 of the Code of Federal Environmental Policy Act of 1969, need Bull. Mus. Comp. Zool. 148:239–320. Regulations, is amended as set forth not be prepared in connection with Kentucky State Nature Preserves below: regulations adopted pursuant to section Commission. 1991. Endangered, Threatened, and Special Concern Plant and PART 17Ð[AMENDED] 4(a) of the Act. A notice outlining the Animal Species of Kentucky. March 1991. Service’s reasons for this determination 15 pp. 1. The authority citation for part 17 was published in the Federal Register Neves, R. J. 1991. Mollusks. In Virginia’s on October 25, 1983 (48 FR 49244). endangered species, proceedings of a continues to read as follows: symposium. Coordinated by Karen Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Required Determinations Terwilliger. McDonald & Woodward Publ. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– The Service has examined this Co., Blacksburg, Virginia. 672 pp. 625, 100 Stat. 3500, unless otherwise noted. regulation under the Paperwork Neves, R. J., and M. C. Odum. 1989. Muskrat Reduction Act of 1995 and found it to predation on endangered freshwater 2. Section 17.11(h) is amended by contain no information collection mussels in Virginia. Jour. Wildl. Manage. adding the following, in alphabetical requirements. This rulemaking was not 53(4):939–940. order under ‘‘CLAMS,’’ to the List of Ortmann, A. E. 1918. The nayades subject to review by the Office of Endangered and Threatened Wildlife to (freshwater mussels) of the upper read as follows: Management and Budget under Tennessee drainage with notes on Executive Order 12866. synonymy and distribution. Proceedings of §17.11 Endangered and threatened References Cited the American Philosophical Society. wildlife. 57:521–626. * * * * * Bakaletz, S. 1991. Mussel survey of the Big Tennessee Valley Authority. 1971. Stream South Fork National River Recreation Area. length in the Tennessee River Basin. (h) * * *

SPECIES Verte- brate popu- lation where Critical Special Historic range endan- Status When listed habitat rules Common name Scientific name gered or threat- ened

******* CLAMS:

******* Bean, purple ...... Villosa perpurpurea ...... U.S.A. (TN and VA) ...... NA E 602 NA NA

******* Combshell, Cum- Epioblasma brevidens .... U.S.A. (AL, KY, TN, and NA E 602 NA NA berland. VA).

******* Elktoe, Cumberland .. Alasmidonta atropurpurea U.S.A. (KY and TN) ...... NA E 602 NA NA

******* Mussel, oyster ...... Epioblasma capsaeformis U.S.A. (AL, KY, TN, and NA E 602 NA NA VA). 1658 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

SPECIES Verte- brate popu- lation where Critical Special Historic range endan- Status When listed habitat rules Common name Scientific name gered or threat- ened

******* Rabbitsfoot, rough .... Quadrula cylindrica U.S.A. (TN and VA) ...... NA E 602 NA NA strigillata.

*******

Dated: December 6, 1996. John G. Rogers, Acting Director, Fish and Wildlife Service. [FR Doc. 97–565 Filed 1–9–97; 8:45 am] BILLING CODE 4310±55±P